Citation Nr: 1225093
Decision Date: 07/19/12 Archive Date: 07/30/12
DOCKET NO. 10-19 404 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon
THE ISSUE
Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD).
REPRESENTATION
Veteran represented by: Oregon Department of Veterans' Affairs
ATTORNEY FOR THE BOARD
Jebby Rasputnis, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1982 to November 1985.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued in December 2009 by the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO).
On a May 2009 substantive appeal (VA Form 9), the Veteran's authorized representative indicated that he wished to present evidence at a hearing before the Board. Although September 2010, August 2011, and October 2011 letters were issued to the Veteran advising him of a pending hearing, the claims file reflects that each of the letters was returned as undeliverable. He did not appear at a hearing scheduled in December 2011.
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.
FINDINGS OF FACT
1. In October 2009, the Veteran submitted an original claim for service connection for PTSD.
2. The Veteran did not respond to an October 2009 letter requesting additional information and notifying him of his and VA's respective duties in gathering evidence.
3. The Veteran did not respond to a December 2009 letter requesting additional information for purposes of stressor verification.
4. The Veteran did not respond to a separate December 2009 letter requesting that he complete an authorization form allowing VA to assist him by gathering pertinent evidence on his behalf.
5. The Veteran's representative submitted a May 2010 substantive appeal (VA Form 9) that was unsigned by the Veteran, but indicated that he wished to appear at a hearing.
6. Letters dated September 2010, August 2011, October 2011, and February 2012 were returned to the Board as undeliverable.
7. The RO took appropriate, but unsuccessful, actions to verify the Veteran's address, including phone calls to the last known phone number.
8. The Veteran did not appear at a December 2011 hearing.
CONCLUSION OF LAW
The Veteran has abandoned the claim. 38 U.S.C.A. §§ 5107, 7105(d)(5) (West 2002); 38 C.F.R. § 3.158(a) (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").
The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1).
The Veteran was notified in an October 2009 letter of the evidence necessary to substantiate a claim for service connection. Pelegrini v. Principi, 18 Vet.App. 112 (2004). The letter also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet.App. 473, 490-491 (2006).
VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains the Veteran's service treatment records. Although the Veteran indicated that he had received private psychiatric treatment, he has not submitted any such evidence and did not respond to a December 2009 letter requesting that he provide VA with authorization to retrieve the records on his behalf. The Veteran also did not respond to a separate December 2009 letter requesting additional information about his alleged in-service stressor. Although the Veteran has not been provided with notice in accordance with 38 C.F.R. § 3.304(f)(5), he has not provided VA with any current address to which such notice could be sent - remanding for such additional notice would be of no assistance to the Veteran as he would not receive it. While VA is obligated to assist a claimant in the development of a claim, a claimant cannot passively wait for assistance in those circumstances where he may have information that is essential in obtaining the putative evidence." Wamhoff v. Brown, 8 Vet.App. 517 (1996); See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) (the duty to assist is a two-way street). As the Veteran has not indicated that he has any additional evidence or identified any additional sources of evidence, the duty to assist has been met despite the lack of VA examination.
Under the law, VA must provide a medical examination or obtain a medical opinion when such action is necessary to make a decision on the claim. "Necessary" refers to situations in which the evidence of record, including consideration all information and lay or medical evidence including statements of the claimant, (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (C) does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2).
Here, the evidence does not reflect any psychiatric diagnoses or show that the Veteran experienced the alleged in-service event. No examination is warranted. See Bardwell v. Shinseki, 24 Vet.App. 36 (2010); see also Pond v. West, 12 Vet.App. 341 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995) ((observing that to establish service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury)).
The Veteran has not made the RO or the Board aware of any additional evidence. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2011).
Service Connection for PTSD
The law states that "where evidence requested in connection with an original claim... is not furnished within 1 year after the date of request, the claim will be considered abandoned." After the expiration of that year, further action will not be taken unless a new claim is received. 38 C.F.R. § 3.158(a).
The Veteran submitted an original claim for service connection for PTSD in October 2009. He indicated on his claim that "[his] PTSD stressor occurred while [he] was in the service" and that he was claiming "PTSD due to MST." He further indicated that he had received treatment from "Sunset Psychological."
A subsequent October 2009 letter from VA informed him of his and VA's respective duties as to gathering evidence. He was asked to provide additional evidence about his alleged stressor and post-service medical treatment. The Veteran did not respond to the letter.
In November 2009, the RO issued a rating decision denying the Veteran's claim. He was notified of that denial by a December 2009 letter. The Veteran responded in a subsequent December 2009 letter that he disagreed with the decision and "believe[d] a thorough review of [his] military personnel and medical records [would] show markers from the date of [his] MST to the time [he] left the service."
In December 2009, VA sent the Veteran two (2) letters. One (1) letter requested that he complete an 'Authorize and Consent' form that would allow VA to obtain treatment records from "Sunset Psychological" on his behalf. The other letter requested that he provide additional information about his alleged medical treatment and stressor. The Veteran did not respond to either letter.
The Veteran's authorized representative submitted a May 2010 substantive appeal (VA Form 9) stating that the Veteran wished to appear at a hearing, at the RO, before the Board. The substantive appeal was not signed by the Veteran.
Subsequent letters mailed to the Veteran in September 2010, August 2011, October 2011, and February 2012 were returned to VA as undeliverable. The Veteran did not appear at a December 2011 hearing.
A September 2011 VA report of contact reflects that the RO took appropriate steps to verify the Veteran's contact information. The RO called the phone number last provided by the Veteran four (4) times and received no response. The RO contacted the Veteran's authorized representative and determined that they did not have any different/updated contact information for the Veteran. The RO searched CAPRI (Compensation and Pension Record Interchange) for any changes to the Veteran's address and found none.
The February 2012 letter that was returned as undeliverable reflects that the Veteran's P.O. Box had been closed and no forwarding information was available from the U.S. Postal Service.
More than two (2) years have passed since VA requested that the Veteran submit evidence and releases in support of his claim. More than two (2) years have passed since the submission of the Veteran's substantive appeal. The Veteran has failed to respond to VA requests for assistance in developing evidence essential for proper adjudication of his claim. He has terminated his last known address of record (a P.O. Box) and has not provided any forwarding information.
The duty to assist is not a one-way street. A veteran cannot passively wait for assistance in those circumstances where his cooperation is needed for necessary evidentiary development. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The law governing such circumstances is clear and mandates that the claim be considered abandoned and the appeal dismissed. See Hyson v. Brown, 5 Vet.App. 262 (1993); 38 C.F.R. § 3.158(a).
38 C.F.R. § 3.304(f)(5) states that "VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence." Although the Veteran has not been provided with notification pursuant to 38 C.F.R. § 3.304(f)(5), he has abandoned his claim and has not notified VA of any address to which such notice could be sent - additional notice letters would be pointless as they would not reach the Veteran. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App.426, 430 (1994). Further, the Board is dismissing his claim as abandoned rather than denying on the merits (italics added for emphasis) - 38 C.F.R. § 3.304(f)(5) prohibits only denials.
As the Veteran has abandoned the claim on appeal, there remain no allegations of errors of fact or law for appellate consideration. Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. The claim is dismissed.
ORDER
The claim of service connection for an acquired psychiatric disorder is dismissed.
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DENNIS F. CHIAPPETTA, JR.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs