Veteranclaims’s Blog

January 30, 2013

Single Judge Application: Relevant Records; Golz, 590 F.3d at 1320-21; Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); 38 C.F.R. § 4.125; Schizophrenia is not PTSD;

Excerpts from decision below:
“The Court notes that, although service-connected mental disorders are all
assigned disability ratings based on the same general rating formula for mental disorders, 38 C.F.R. § 4.130, VA must still determine whether there is a mental disorder present that is a separate condition from a diagnosed mental disorder. VA has included within this schedule for rating mental disorders both schizophrenia (DC 9201), which is a psychotic disorder, and PTSD (DC 9411), which is an anxiety
disorder. The pertinent regulation, 38 C.F.R. § 4.125,is entitled “Diagnosis
of mental disorders” and provides that a diagnosis of a mental disorder may be a “separate condition” from a prior mental disorder diagnosis and that “[i]f it is not clear from the available records what the change of diagnosis represents, the rating agency shall return the report to the examiner for a determination.” 38 C.F.R. § 4.125(b) (2012); see also Secretary’s Br. at 8 n.1.”
============================

“On remand, the Board must obtain the appellant’s service personnel records, which may contain records or evidence of relevant behavior changes or indications
that a mental evaluation
8

was warranted. VA must seek records “that are relevant to the veteran’s
claim.” Golz, 590 F.3d at 1320-21 (emphasis added). “Relevant records for the purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim.” Id.; see, e.g., Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir.
2009) (stating that “VA is statutorily required to obtain all of the veteran’s relevant service medical records, not simply those which it can most conveniently locate”); McGee v. Peake, 511 F.3d 1352, 1355, 1358 (Fed. Cir. 2008).
In close or uncertain cases, “[a]s long as a reasonable possibility exists that the records are relevant to the veteran’s claim, VA is required to assist the veteran in obtaining the identified records.” Golz, 590 F.3d at 1323 (emphasis added): see McGee, 511 F.3d at 1357(discussing VA’s obligation, in fulfilling its duty to assist, to “fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits”).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-2775
GEORGE A. BENAVIDES, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

MOORMAN, Judge: The pro se appellant appeals from a September 2, 2011,
decision of
the Board of Veterans’ Appeals (Board) that denied entitlement to service
connection for post-traumatic stress disorder (PTSD).1 The appellant filed an informal brief, the Secretary filed a brief, and the appellant filed a replybrief.2
As to his PTSD claim, the appellant argues that the Board

1 The Board also remanded the appellant’s claims for increased disability
ratings for a cervical strain disorder, a thoracic strain disorder, and a left a typical musculoskeletal chest pain, and his entitlement to a total disability rating
based on individual unemployability (TDIU). Record (R.) at 13. The Board
determined that a new VA examination was necessary to determine the current severity of these disabilities and that the issue of entitlement to TDIU was inextricably
intertwined with the increased rating claims. Id. at 13-14. Because the
Board remanded the latter four matters, the Court has no jurisdiction to review them. See Kirkpatrick v. Nicholson, 417 F.3d 1361 (Fed. Cir. 2005) (holding that the Court does not have jurisdiction over remanded claims).
The Court acknowledges the appellant’s contentions that he is entitled to
higher disability ratings for his cervical, thoracic, and chest disabilities, as well as TDIU, but as noted above, the Court lacks jurisdiction to review the
merits of these remanded claims. The Court also acknowledges the
appellant’s arguments that he should be awarded VA compensation benefits based on injuries to his lumbar spine and that “VA neglected to include lumbar injuries sustained while in the military and treated for while in the military.” Informal
Brief at 3 (citing generally to the record before the agency without reference to page numbers). However, because the Board did not address a claim for service connection for a lumbar spine disability, and the appellant has not shown that the
Board was required to do so in its September 2011
decision, the Court lacks jurisdiction to address this claim at this time.
See Evans v. Shinseki, 25 Vet.App. 7, 10 (2011)
(“[T]he Court’s ‘jurisdiction is premised on and defined by the Board’s
decision concerning the matter being appealed,’
and when the Board has not rendered a decision on a particular issue, the
Court generally has no jurisdiction under
[38 U.S.C. §]7252(a) to consider the merits of the matter.”) (quoting
Ledford v. West, 136 F.3d 776, 779
2

erred in denying service connection because “one does not have to be in
combat to have PTSD” and “the [N]avy implant [of a device in his anatomy] is traumatic enough to qualify for PTSD.” Informal Brief at 5. The Secretary advocates a remand of the PTSD claim for further adjudication. This appeal is timely and the Court has jurisdiction over the appeal pursuant to 38 U.S.C. § 7252(a).
Single-judgedisposition is appropriate. See Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990). For the reasons set forth below, the Board’s September 2011 decision will be vacated as to the denial of service connection for PTSD based on the Board’s inadequate statement of reasons or basis and a failure to get service personnel records.

I. FACTS
Mr. Benavides had active duty in the U.S. Marine Corps from December 1993
to January
1998. R. at 569. During service, he had dental care and treatment on
numerous teeth. R. at 565
(dental record for January 1994 noting “OPER: 2, 3, 5, 12, 14, 18, 10″ and ”
EXT: 1, 16, 17, 32″);
see R. at 417-18 (September 1997 separation examination report); R. at 423 (
December 1993
enlistment examination report); see also R. at 259 (June 2010 Statement of
the Case noted: “Review
of service treatment records show you had an operation for extraction of
teeth #1,16, 17, and 32 on
January 12, 1994, 40 days after your active duty.”). The service medical
records (SMRs) provided
in the record of proceedings do not show complaints or treatment for
psychiatric symptomatology.
However, there is an indication that a mental evaluation may have occurred
after October 9, 1997.
See R. at 259 (June 2010 SOC noted: “On October 9, 1997, a mental
evaluation was suggested to
evaluate your response to pain due to your frequent complaint of chest
pain.”). The separation
(Fed. Cir.1998)); see Jarrell v. Nicholson, 20 Vet.App. 326, 331 (2006) (
noting that the Court may exercise its
jurisdiction only over claims and theories that are the subject of a final
decision by the Board in the decision on review).
If the appellant believes that he has reasonably raised a claim for
entitlement to service connection for his lumbar spine
disability to VA that remains pending and unadjudicated (see, e.g., R. at
421 (medical assessment form dated August
27, 1997, from the appellant noting intent to seek VA disability benefits
for back, neck, and chest pains), 1281-82
(Appellant’s December 2006 statement discussing back pain)), he should
seek adjudication below at VA. See DiCarlo
v. Nicholson, 20 Vet.App. 52, 56 (2006); see also Harris v. Shinseki, __ F.
3d __, __, No. 2012-7111, 2013 WL 49560,
at *2 (Fed. Cir. Jan. 4, 2013) (noting requirement that, in determining
whether the veteran filed a formal or informal
claim for VA medical benefits, the Board “must generously construe the
evidence” in the case, which included forms
filled out by the veteran as part of his VA examination, and must “‘fully
and sympathetically develop the veteran’s claim
to its optimum before deciding it on the merits.'”) (quoting and
emphasizing Roberson v. Principi, 251 F.3d 1378, 1384
(Fed. Cir. 2001)).
2

examination report dated September 8, 1997, noted that Mr. Benavides was
referred to further
evaluation, specificallyto aPhysicalEvaluationBoard (PEB)”toaddress
problems.” R. at418,422.
The box for the physical profile numbers on the form was left blank. R. at
418. It is not clear
whether the “problems” included complaints other than recurrent spine-
related complaints–i.e.,
specifically “scoliosis [and] spondylosis of C4C5” which was “[d]iagnosed
as [left] atypical chest
musculo-skeletal pain.” R. at 422, see R. at 418. Although it does not
appear that the Secretary
included a PEB report as part of the record of proceedings, in light of
the Court’s disposition of the
PTSD claim, discussed below, the failure to include the PEB report is not
prejudicial to
Mr. Benavides at this time.
Following service, private treatment records from April 2006 noted that Mr.
Benavides
reported that during service “a chip” was implanted in his head and that
he believed that he “is
constantlybeing followed.” R. at 954. The examiner provided an assessment
of generalized anxiety
disorder and indicated that follow-up action was needed to rule out PTSD
and schizophrenia. R. at
957.
In December 2006, Mr. Benavides filed a claim for serviceconnection for
PTSD. R. at 1280-
85. He stated that a “traumatic situation” occurred in the military when
the Marine Corps and its
staff “implanted a bug or wiretap inside mygingiva, tooth or anatomy.” Id.
at 1280. He believes that
the implant allows people to understand what he is doing and where he is
going and thus invades his
privacy. Id. He stated: “I feel depressed and horrified that this
experiment was conducted on me.”
Id. A September 2007 private evaluation report, which was prepared in
connection with Social
Security Administration disability benefits, noted that Mr. Benavides had
delusions and he was
diagnosed with schizophrenia, paranoid type. R. at 965-68.
A VA regional office (RO) decision dated in January 2008 denied the claim
for service
connection for PTSD.
Disagreement.
R. at 893-98.
In February 2008, Mr. Benavides filed a Notice of
See R. at 226.
Following the submission of additional statements from
Mr. Benavides and evidence, the RO requested a VA examination for mental
disorders to determine
current diagnoses. R. at 694-96. In its request, however, the RO noted
that Mr. Benavides was
seeking service connection for paranoid schizophrenia and did not mention
PTSD. R. at 695-96.
Specifically, the RO directed the examiner to answer the following
questions: “Is it at least as likely
3

as not the veteran’s chest pain was the onset of the current psychiatric
disorder? Were there other
symptoms in service indicative of a prodromal phase of schizophrenia?
Please comment on effect
of schizophrenia on vet[eteran]’s ability to maintain employment.” R. at
696.
Soon thereafter, in November 2009, Mr. Benavides was afforded a VA
psychiatric
examination. R. at 678-86.3
The examiner diagnosed schizophrenia, paranoid type, noting that
Mr. Benavides “has bizarre and paranoid delusions and tactile
hallucinations.” R. at 684. The
examiner noted that Mr. Benavides cited “the fact that someone in the Navy
implanted a device in
him during a root canal procedure when he was unconscious” as the onset of
his symptoms. R. at
686. The report further noted: “This device intercepts his thoughts and
allows access to the world.”
Id. The examiner concluded that it was at least as likely as not that Mr.
Benavides “developed
schizophrenia while in service.” Id.
In October 2009, in response to an inquiry from a Congressional
representative, a deputy
chief of medical operations for the Department of the Navy stated:
It is not accepted practice in Navy Medicine or Navy Dentistry to implant
devices
into patients without their informed consent. There is no historical basis
of
implanting devices of the kind Mr. Benavides alludes to.
It is not likely that Mr. Benavides participated in any experimentation
that would
have placed a dental implant capable of intercepting the communication or
thinking
patterns of a human being. In order to conduct a thorough review, Mr.
Benavides
would need to provide us with a complete copy of the medical and dental
records for
the period specified.
R. at 281.
On June 1, 2010, the RO issued a Statement of the Case denying service
connection for both
PTSD and schizophrenia. R. at 258-60. Shortly thereafter, on June 3, 2010,
the VA psychologist
who prepared the November 2009 report completed an addendum in which she
elaborated on the
It appears that the examining psychologist signed the report on January 7,
2010. R. at 686. The Court will,
as did the Board, refer to the report as the November 2009 report. See R.
at 10-12. In addition, the Court notes that the
examiner referred to two psychiatric evaluations, one dated October 9,
2008, and the second dated December 31, 2009,
that indicated “the presence of thought disorders.” R. at 678. The two
reports are not mentioned in the Board decision
and not included in full in the record of proceedings or discussed by the
parties. See R. at 178 (partial “psychiatry initial
evaluation note”dated December 31, 2009). Based on the disposition here,
as discussed below, the exclusion is not
prejudicial to Mr. Benavides.
3
4

rationale for conclusions that Mr. Benavides has schizophrenia and that
he exhibited a phase of
schizophrenia in service. R. at 178. On June 11, 2010, based on the
November 2009 report and June
2010 addendum, the RO granted service connection for schizophrenia at a 30%
rating, effective
May 25, 2006, and a 50% rating, effective September 17, 2007. R. at 149.
The RO determined that
the decision was being considered “a full resolution of benefits sought on
appeal.” R. at 152.
In February 2011, Mr. Benavides gave sworn testimony before the Board
regarding his
claims, including entitlement to TDIU and service connection for PTSD. R.
at 69-102. Regarding
PTSD, he testified that the implantation of a device inside of him by the
Navyduring his service was
very traumatic to him and has caused him to lose his marriage, his
relationships, and his
employment. R. at 97-101.
On September 2, 2011, the Board issued its decision now here on appeal. R.
at 3-13.
II. ANALYSIS
In his informal brief, the appellant argues that his in-service dental
care and treatment, which
he states included the implantation of a device in his tooth or head, was
traumatic “because it
changed his mentality and life” and “is enough to qualify for PTSD.”
Appellant’s (App.) Informal
Brief (Inf. Br .) at 3-4; Reply at 5-6. He also contends that the Board
failed to consider the fact that
a veteran need not have been in combat to be granted service connection
for PTSD. App. Inf. Br.
at 1–2. In response, the Secretary urges the Court to remand the claim
to the Board because “the
Board’s statement regarding satisfaction of its duty to assist is
inadequate for judicial review.”
Secretary’s Br. at 7. As discussed below, the Court agrees with the
Secretary that a remand is
warranted.
To establish entitlement to VA disability compensation for PTSD, a
claimant must present
(1) evidence of a current diagnosis of PTSD; (2) evidence of an in-service
stressor, with credible
supporting evidence that the claimed in-service stressor occurred; and (3)
evidence of a causal nexus
between the current symptomatology and the in-service stressor. 38 C.F.R. §
3.304(f) (2012); see
Cohen v. Brown, 10 Vet.App. 128, 138 (1997). If the evidence establishes
that the veteran engaged
in combat with the enemy and his claimed stressor is related to that
combat, the veteran’s lay
testimony alone generally is sufficient to establish the occurrence of the
claimed in-service stressor.
5

38 U.S.C. § 1154(b); Sizemore v. Principi, 18 Vet.App. 264 (2004); 38 C.
F.R. § 3.304(f); see also
Zarycki v. Brown, 6 Vet.App. 91, 98 (1993). When a claim for PTSD is based
on a noncombat
stressor, “the noncombat veteran’s testimony alone is insufficient proof
of a stressor.” Moreau v.
Brown, 9 Vet.App. 389, 396 (1996). Whether a veteran has submitted
sufficient corroborative
evidence of his or her claimed in-service stressors is a factual
determination that is reviewed under
the “clearly erroneous” standard of review. Pentecost v. Principi, 16 Vet.
App. 124, 129 (2002).
In rendering its decision, the Board is required to consider all evidence
of record and to
consider, and discuss in its decision, all “potentially applicable”
provisions of law and regulation.
Schafrath v. Derwinski, 1 Vet.App. 589, 592–93 (1991); see 38 U.S.C. §
7104(a). The Board must
provide a statement of the reasons or bases for its determination,
adequate to enable an appellant to
understand the precise basis for the Board’s decision as well as to
facilitate review in this Court.
38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995);
Gilbert v. Derwinski,
1 Vet.App. 49, 56–57 (1990). To comply with this requirement, the Board
must analyze the
credibility and probative value of the evidence, account for the evidence
it finds persuasive or
unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed.
Cir.1996) (table). A remand is the appropriate remedy “where the Board has
incorrectly applied the
law, failed to provide an adequate statement of reasons or bases for its
determinations, or where the
record is otherwise inadequate.” Tucker v. West, 11 Vet.App. 369, 374 (
1998).
In this case, the Board denied entitlement to service connection for PTSD
because “there is
no corroborated in-service stress[or] or properly established diagnosis of
PTSD.” R. at 13. It also
determined that “there has been substantial compliance with the assistance
provisions set forth in the
lawandregulations.” R. at 7. The Board acknowledged that the appellant’s
servicepersonnel records
were not obtained but concluded that those records were not relevant
because of the “nature of the
claimed stressor and lack of PTSD diagnosis.” Id. The Board noted the
appellant’s assertion that
“a device was secretly implanted into his tooth during dental treatment
while in service” and found
that it was “highly unlikely that his service personnel records would
contain documentation of this
6

incident.” R. at 7-8. The Board also noted that “the service treatment
records clearly document all
dental treatment.” R. at 8.4
The Court agrees with the Secretary that the Board failed to provide a
statement of reasons
or bases that is adequate to facilitate judicial review. First, the Board
failed to discuss the fact that
the November 2009 VA examination report, which was relied on by the Board
in denying the PTSD
claim, did not include a discussion of whetherthe appellant suffered from
PTSD. Second, the Board
did not address the October 2009 RO letter that requested the medical
report and its direction to the
examiner to focus on the issue of service connection for schizophrenia, to
the exclusion of an
evaluation for PTSD. R. at 694-96. In addition, the June 2010 addendum to
that examination report
did not address or evaluate whether the appellant suffers from PTSD. The
Court notes that the April
2006 private examination report noted that followup examination was needed
to rule out PTSD.
Moreover, the Board’s statement that “the November 2009 VA examiner was
unable to render a
diagnosis of PTSD” (R. at 12) is not supported by the statements of the VA
examiner in the
November 2009 report. Based on the faulty October 2009 RO request for an
examination, the
examiner was not asked to opine on whether the appellant has PTSD. The
Court agrees with the
Secretary that “the Board should be allowed the opportunity to consider
whether to obtain
clarification as to this matter, or a new medical examination [or] opinion,
if necessary, in order to
fulfill the duty to assist Appellant in the development of his claim.”
Secretary’s Br. at 8.
Regarding a diagnosis of PTSD, the Court notes that in Cohen v. Brown, 10
Vet.App. 128,
139-42 (1997), the Court discussed the application of the diagnosis
element of § 3.304(f). The Court
explained that, in making a PTSD diagnosis, mental health professionals ”
are presumed to know the
DSM-IV [(Diagnostic and Statistical Manual of Mental Disorders, 4th
edition)] requirements
applicable to their practice and to have taken them into account in
providing a PTSD diagnosis.” Id.
Regarding the June 2010 addendum prepared by the VA psychologist who
diagnosed the appellant with
schizophrenia and linked it to service, the Board found that the addendum ”
only discussed the etiology of the Veteran’s
schizophrenia and did not address the Veteran’s in-service stressors or
indicate a finding of PTSD” and the Board,
therefore, concluded that the addendum was “not pertinent to the claim of
PTSD” and “waiver of RO consideration of
this evidence is not necessary.” R. at 5. This determination by the Board
is not entirely clear in light of the fact that the
RO, in its June 11, 2010, decision, expressly granted service connection
for schizophrenia based on this addendum and
also essentially merged the appellant’s claim for service connection for
PTSD with the claim for service connection for
schizophrenia. R. at 150 (“Service connection for schizophrenia, paranoid
type (also claimed as post traumatic stress
disorder, depression/anxiety disorder.”).
4
7

at 140. The Court also specifically stated that “the question of the
sufficiency of the asserted
stressors . . . is a medical question requiring examination and assessment
of the veteran by a
mental-health professional.” Id. at 142. Accordingly, it is a medical
question whether the incidents
that the appellant experienced in service regarding his dental treatment
and care are a sufficient
stressor to cause PTSD.
The Court notes that, although service-connected mental disorders are all
assigned disability
ratings based on the same general rating formula for mental disorders, 38
C.F.R. § 4.130, VA must
still determine whether there is a mental disorder present that is a
separate condition from a
diagnosed mental disorder. VA has included within this schedule for rating
mental disorders both
schizophrenia (DC 9201), which is a psychotic disorder, and PTSD (DC 9411),
which is an anxiety
disorder. The pertinent regulation, 38C.F.R.§4.125,is entitled “Diagnosis
of mental disorders”and
provides that a diagnosis of a mental disorder may be a “separate
condition” from a prior mental
disorder diagnosis and that “[i]f it is not clear from the available
records what the change of
diagnosis represents, the rating agency shall return the report to the
examiner for a determination.”
38 C.F.R. § 4.125(b) (2012); see also Secretary’s Br. at 8 n.1.
Moreover, regarding the requirement of an in-service stressor, the Board’s
statement of
reasons or bases is inadequate. This is because the Board did not discuss
why the service treatment
records that show that dental work was performed on the appellant are not
sufficient as to an in-
service incident. Contrary to the appellant’s assertions, the Board did
not reject his PTSD claim
because he did not serve in combat, but rather the Board determined that
he did not have a PTSD
diagnosis or verification of his in-service stressors. Nevertheless, as
noted above, further evaluation
is required by the Board as to whether the appellant’s stressor allegation
is verified by the type and
extent of dental work performed on the appellant duringservice. See also
Secretary’s Br. at 9 (stating
that “it is appropriate that the Board revisit its determination that it
has satisfied its duty to assist as
to verification of Appellant’s stressor allegations.”).
In this regard, the Court concludes that the Board’s determination that VA
fulfilled its duty
to assist is “clearly erroneous” because the Board failed to ensure that
all relevant service records
were obtained. On remand, the Board must obtain the appellant’s service
personnel records, which
maycontain records or evidence of relevant behaviorchanges or indications
that a mental evaluation
8

was warranted. VA must seek records “that are relevant to the veteran’s
claim.” Golz, 590 F.3d at
1320-21 (emphasis added). “Relevant records for the purpose of § 5103A
are those that relate to the
Previous DocumentinjuryNext Document for which the claimant is seeking benefits and have a reasonable
possibility of helping to
substantiate the veteran’s claim.” Id.; see, e.g., Moore v. Shinseki, 555
F.3d 1369, 1374 (Fed. Cir.
2009) (stating that “VA is statutorily required to obtain all of the
veteran’s relevant service medical
records, not simply those which it can most conveniently locate”); McGee v.
Peake, 511 F.3d 1352,
1355, 1358 (Fed. Cir. 2008). In close or uncertain cases, “[a]s long as a
reasonable possibility exists
that the records are relevant to the veteran’s claim, VA is required to
assist the veteran in obtaining
the identified records.” Golz, 590 F.3d at 1323 (emphasis added): see
McGee, 511 F.3d at 1357
(discussing VA’s obligation, in fulfilling its duty to assist, to “fully
and sympathetically develop the
veteran’s claim to its optimum before deciding it on the merits”).
Onremand,theBoardshould provideanadequatestatementofreasonsorbasesasto
whether
theappellant’s February 2011testimonyorotherevidencesubmittedduringtheone-
yearperiodafter
the RO’s June 2010 award of 30% and 50% ratings and no higher for service-
connected
schizophrenia constituted an NOD as to the ratings or effective dates
assigned.
Onremand,theappellantis freeto submit
additionalevidenceandargumentontheremanded
claim for entitlement to service connection for PTSD, which the Board must
consider when
readjudicatinghis claims. See Kay v. Principi, 16 Vet.App. 529, 534 (2002);
Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board and the RO
must provide
expeditious treatment of this matter on remand. See 38 U.S.C. §§ 5109B,
7112.
III. CONCLUSION
Uponconsideration oftheforegoinganalysis, therecordonappeal,
andtheparties’pleadings,
the September 2, 2011, Board decision as to the denial of service
connection for PTSD is
VACATED and the matter is REMANDED for further development consistent with
this decision.
DATED: January 28, 2013
Copies to:
George A. Benavides
VA General Counsel (027)
9

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