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citation nr: 0514803

decision date: 06/01/05 archive date: 06/15/05

docket no. 03-34 124a ) date


)
)

on appeal from the


department of veterans affairs (va) regional office (ro)
in pittsburgh, pennsylvania

the issues

1. entitlement to restoration of service connection for


post-traumatic stress disorder (ptsd).

2. entitlement to service connection for squamous cell


carcinoma of the neck.

attorney for the board

c. l. wasser, counsel

introduction

the appellant served in the us army reserve, including a


period of initial active duty for training (acdutra) from
june 18, 1964 to november 20, 1964.

this case comes to the board of veterans' appeals (board) on


appeal from a july 2003 decision by the ro in washington, dc
which severed service connection for ptsd, and which denied
service connection for squamous cell carcinoma of the neck.

this case was forwarded to the board by the ro in pittsburgh,


pennsylvania.

the board also notes that by a letter dated in july 2003, the
appellant appears to be raising a claim for entitlement to
service connection for blackouts. that issue is not
currently on appeal and is referred to the ro for appropriate
action.

findings of fact

1. in october 1998, the ro established service connection


for ptsd, effective in february 1995.

2. in a february 2003 rating decision, the ro proposed to


sever service connection for ptsd, and in a july 2003 rating
decision, the ro severed service connection for ptsd,
effective october 1, 2003.
3. the october 1998 rating decision which granted service
connection for ptsd was reasonably supported by the evidence
of then of record and the pertinent law and regulations in
effect at that time.

4. the appellant's squamous cell carcinoma of the neck,


first manifested many years after service, is not of service
origin or related to any incident of service.

conclusions of law

1. service connection for ptsd is restored. 38 u.s.c.a. ��


101(24), 1110 (west 2002); 38 c.f.r. � 3.304(f) (1998); 38
c.f.r. �� 3.105(d), 3.303 (2004).

2. squamous cell carcinoma of the neck was not incurred in


or aggravated by service nor may it be presumed to have been
incurred in service. 38 u.s.c.a. �� 101(24), 1101, 1110,
1112, 1113. (west 2002); 38 c.f.r. �� 3.303, 3.307, 3.309
(2004).

reasons and bases for findings and conclusion

there has been a significant change in the law with the


enactment of the veterans claims assistance act of 2000
(vcaa), pub. l. no. 106-475, 114 stat. 2096 (2000). see, 38
u.s.c.a. �� 5102, 5103, 5103a, 5107 (west 2002). this law
eliminates the concept of a well-grounded claim, and
redefines the obligations of va with respect to the duty to
assist. the new law also includes an enhanced duty to notify
a claimant as to the information and evidence necessary to
substantiate a claim for va benefits. the final rule
implementing the vcaa was published on august 29, 2001. 66
fed. reg. 45,620-32 (aug. 29, 2001) (codified at 38 c.f.r. ��
3.102, 3.156(a), 3.159, and 3.326(a)).

the board notes that a decision promulgated on september 22,


2003, paralyzed veterans of america v. secretary of veterans
affairs, 345 f.3d 1334 (fed. cir. 2003), the united states
court of appeals for the federal circuit (court) invalidated
the 30-day response period contained in 38 c.f.r. �
3.159(b)(1) as inconsistent with 38 u.s.c.� 5103(b)(1). the
court made a conclusion similar to the one reached in
disabled american veterans v. secretary of veterans affairs,
327 f.3d 1339, 1348 (fed. cir. 2003) (reviewing a related
board regulation, 38 c.f.r. � 19.9). the court found that
the 30-day period provided in � 3.159(b)(1) to respond to a
vcaa duty to notify is misleading and detrimental to
claimants whose claims are prematurely denied short of the
statutory one-year period provided for response. with
respect to paralyzed veterans of america v. secretary of
veterans affairs, on december 16, 2003, the president signed
h.r. 2297, the veterans benefits act of 2003 (the act).
section 701 of the act contains amendments to 38 u.s.c. ��
5102 and 5103. the act contains a provision that clarifies
that va may make a decision on a claim before the expiration
of the one-year vcaa notice period. veterans benefits act of
2003, p.l. 108- __, section 701 (h.r. 2297, december 16,
2003).

the record reflects that va has made reasonable efforts to


notify the veteran of the information and evidence needed to
substantiate his claims. the veteran was provided with a
copy of the rating decision noted above, as well as
statements of the case dated in july 2003 and july 2004, and
a supplemental statement of the case dated in july 2004. he
was furnished with vcaa letters in october 2002, december
2002, and april march 2004. these documents, collectively,
provide notice of the law and governing regulations, as well
as the reasons for the determination made regarding his
claims. by way of these documents, the veteran was also
specifically informed of the cumulative evidence already
having been previously provided to va or obtained by va on
his behalf. he was also informed of what evidence the va
would obtain.

all available records have been obtained and associated with


the claims folder. the veteran received multiple va
examinations.

the board notes that some of the vcaa letters were mailed to
the appellant subsequent to the appealed rating decision in
violation of the vcaa. the board, however, finds that in the
instant case the appellant has not been prejudiced by this
defect. in this regard, the board notes the appellant was
provided notice of the division of responsibility in
obtaining evidence pertinent to the case and ample
opportunity to submit and/or identify such evidence.

therefore, under the circumstances, the board finds that any


error in the implementation of the vcaa is deemed to be
harmless error. va has satisfied both its duty to notify and
assist the veteran in this case and adjudication of this
appeal at this juncture poses no risk of prejudice to the
veteran. see, e.g., bernard v. brown, 4 vet. app. 384, 394
(1993).

factual background

the appellant served in the us army reserve, including an


initial period of acdutra from june 18, 1964 to november 20,
1964. his service medical records do not show the presence
of cancer or a psychiatric disorder.

private medical records dated from 1968 to 1969 from royal


united hospital reflect that the appellant was treated,
including hospitalization, for spasmodic torticollis (a neck
condition), of neurotic origin, with evidence of disturbed
personality development from early childhood. he was also
treated for anxiety and tension.

by a letter dated in january 1995, a private physician, dr.


l, indicated that he was the appellant's general
practitioner. he noted that in 1968 and 1969, the veteran
was treated for anxiety and stress, and interviews with a
psychiatrist showed a psychopathology of anxiety over a
number of years. he noted that he was not the appellant's
doctor at that time, and opined that it seemed likely that
the appellant's psychiatric illness at that time could have
been precipitated by stress and anxiety in the preceding
years.

in february 1995, the appellant filed a claim for service


connection for ptsd, which he asserted began in 1968 as a
result of basic training from june to august 1964. he said
he was not treated for ptsd in service, and was first treated
for this condition in 1968. he contended that during his
basic training in 1964, he was humiliated by aggressive
officers and sergeants who harassed him every day in a very
brutalizing way. he said he was taunted and abused
physically. he stated that he did not complain at the time,
but now felt he was harassed and emotionally abused at that
time, which led to his ptsd.

the record shows that when the appellant filed his claim he
was and still is residing in england.

a july 1995 psychiatric report reflects that the appellant


was examined for va purposes. the appellant reported that
during a training session, an infantryman was blown up. the
appellant learned of this event, but did not witness it
himself. he described basic training as a brutalizing and
humiliating event. he complained about emotional torment.
he was aware that the colleagues with whom he was training
were coming backing body bags. the examiner, dr. l.,
indicated that the appellant had a long history of depression
and anxiety, and currently had these conditions. he opined
that the appellant's history met the criteria for ptsd, and
noted that the appellant had direct personal experience of
life-threatening events including training under live
ammunition, and also learned of the violent death of a
colleague through this experience.

by a statement dated in september 1995, the appellant listed


his claimed in-service stressors, all of which involved his
basic training at fort dix. he contended that one of his
friends was blown up during basic training on the grenade
firing range, together with his instructor. he said he could
not remember his friend's name. he stated that he witnessed
another friend's arm being pierced with a bayonet.

by letters dated in june 1996 and november 1997, the u.s.


armed services center for research of unit records (usascrur)
indicated that a search of records at fort dix revealed no
record of grenade or bayonet incidents during the period from
june to august 1964, as alleged by the appellant. usascrur
noted that in order to search casualty records, the appellant
must provide more specific information, including names.
finally, it was noted that anecdotal incidents, although they
might be true, were not researchable, since in order to be
researched, incidents must be reported and documented.
usascrur noted that claimed stressors such as the appellant's
reports of being pushed, kicked, and forced to crawl in
civilian attire or his being verbally abused were seldom
found in the combat records.

the first medical evidence of cancer of the neck is dated in


the late 1990s. private medical records dated in 1998 and
1999 reflect treatment for squamous cell carcinoma of the
neck.

by a letter dated in may 1998, dr. l. indicated that he


examined the veteran in april 1998 again for va. the
appellant provided detailed information regarding his
training with live ammunition, mortars, and grenades. he
diagnosed ptsd, which he related to the veteran's reported
in-service stressors, specifically, witnessing another
soldier receiving a bayonet wound in the arm, hearing about
another soldier being blown up by a grenade, and training
exercises with live ammunition.

in an october 1998 rating decision, the ro observed that the


veteran had been diagnosed with ptsd. the ro indicate that
the stressors identified were training under live ammunition
with grenades and mortars exploding, witnessing another
soldier receiving a bayonet wound in the arm, and hearing
about another soldier being blown up by a grenade. the ro
noted that a letter from the department of the army indicated
that the appellant's reported stressors could not be verified
since specific names could not be furnished. the ro
concluded that reasonable doubt had been resolved in favor of
the claimant, and granted service connection for ptsd.

by a letter dated in june 1999, dr. l. indicated that the


veteran had been diagnosed with squamous cell carcinoma of
the neck, and had undergone a radical dissection of the lymph
nodes in his neck. he added that the appellant "...has often
had problems with his neck, resulting in a tightening of the
structures there which has been related to stress and
anxiety. this in itself was a form of post traumatic stress
disorder, for which he received compensation from the
veterans association. i am not aware of any proven link
between muscle spasms in the neck and cancer in the neck, but
obviously since [the appellant's] longstanding problems have
always been in his neck and now he has a cancer there, it is
of some concern."

in july 1999, the ro received the appellant's claim for


service connection for neck cancer.

by a letter dated in october 1999, dr. w. noted that the


veteran had been diagnosed with squamous carcinoma of lymph
glands in his neck in april 1999.

by a letter dated in october 2002, the appellant asserted


that he had neck problems since the 1960s, after his military
service. he said he first sought treatment for a lump on the
side of his neck in february 1998, and was diagnosed with
cancer of the neck in january 1999. by a letter dated in
january 2003, the appellant asserted that his ptsd was linked
with his neck cancer. in a statement dated in january 2003,
he contended that his squamous cell carcinoma was related to
in-service exposure to gases in a gas chamber.

by a letter dated in february 2003, dr. w. indicated that the


appellant satisfied the criteria for a diagnosis of ptsd.

in a february 2003 rating decision, the ro proposed severance


of service connection for ptsd, on the basis that there was
clear and unmistakable error in an october 1998 rating
decision which granted service connection for ptsd without
verification of the appellant's alleged stressors. the
appellant was notified of this decision in march 2003, and he
was given the opportunity to submit additional evidence. in
april 2003, the ro received a statement from the appellant to
the effect that a recent psychiatric examination was
inadequate. he also submitted duplicative evidence.

in a july 2003 rating decision, the ro severed service


connection for ptsd, effective october 1, 2003.

by a statement dated in september 2003 (and apparently


received in november 2003), the appellant again contended
that he was subjected to physical and emotional abuse at fort
dix, and that this treatment led to his ptsd. in june 2004,
the appellant essentially reiterated his prior assertions
regarding his claimed in-service stressors. he could not
recall the names of any individuals, or any dates of the
reported events.

analysis

service connection may be granted for disability resulting


from disease or injury incurred in or aggravated by active
service. 38 u.s.c.a. �� 1110, 1131 (west 2002); 38 c.f.r. �
3.303 (2004). the term "active service" includes active
duty, any period of active duty for training during which the
individual concerned was disabled from a disease or injury
incurred or aggravated in line of duty, and any period of
inactive duty training during which the individual concerned
was disabled from an injury incurred or aggravated in line of
duty. 38 u.s.c.a. �� 101(24) (2004).

restoration of service connection for ptsd

the ro has severed service connection for ptsd, on the basis


that it was clear and unmistakable error for service
connection to be awarded for this disability in an october
1998 ro decision. the appellant contends that service
connection should be restored for ptsd, as he still has ptsd
and as he believes it is related to military service.

the regulation regarding severance of service connection


provides that once service connection had been granted, it
could be severed only upon the showing by va (with the burden
of proof upon the government) that the rating decision
granting service connection was clearly and unmistakably
erroneous. 38 c.f.r. � 3.105(d); va's burden in severing
service connection under � 3.105(d) is the same as a
claimant's burden in attempting to overturn a final decision
on the basis of clear and unmistakable error under 3.105(a).
see baughman v. derwinski, 1 vet. app. 563, 566 (1991)
(holding that � 3.105(d) places at least as high a burden of
proof on va when it seeks to sever service connection as �
3.105(a) places upon veteran seeking to have an unfavorable
decision overturned). in this case, therefore, the
determination is whether the original grant of service
connection was clearly and unmistakably erroneous at the time
the determination was made.

there is a three- pronged test to determine whether "clear


and unmistakable error" was present under 38 c.f.r. �
3.105(a) in a prior determination: (1) either the correct
facts, as they were known at the time, were not before the
adjudicator or the statutory or regulatory provisions extant
at the time were incorrectly applied; (2) the error must be
undebatable and of the sort which, had it not been made,
would have manifestly changed the outcome at the time it was
made; and (3) a determination that there was clear and
unmistakable error must be based on the record and law that
existed at the time of the prior adjudication in question.
damrel v. brown, 6 vet. app. 242, 245 (1994) (quoting russell
v. principi, 3 vet. app. 310, 313-14 (1992) (en banc)).

to determine whether cue was present in a prior


determination, either the correct facts, as they were known
at the time, were not before the adjudicator (i.e., more than
a simple disagreement as to how the facts were weighed or
evaluated) or the statutory or regulatory provisions extant
at the time were incorrectly applied; the error must be
undebatable and of the sort which, had it not been made,
would have manifestly changed the outcome at the time it was
made; and a determination that there was cue must be based on
the record and law that existed at the time of the prior
adjudication in question. see pierce v. principi, 240 f.3d
1348 (fed.cir. 2001); baldwin v. west, 15 vet. app. 302
(2001), damrel v. brown, 6 vet. app. 242 (1994); russell v.
principi, 3 vet. app. 310 (1992).

the board notes that service connection for ptsd has been in
effect for less than ten years. accordingly, the service-
connected status of the appellant's ptsd is not protected.
see 38 c.f.r. � 3.957 (2004).

in this case, the record establishes that the ro satisfied


all procedural requirements specified by regulation where
severance of service connection is contemplated, and provided
the appellant additional notice and assistance beyond the
basic procedural due process specifically required by
regulation. 38 c.f.r. � 3.105(d) (2004).

at the time of the october 1998 ro decision, governing


regulation provided that in order to establish service
connection for ptsd, there must be medical evidence
establishing a clear diagnosis of the condition, credible
supporting evidence that the claimed in-service stressor
actually occurred and a link, established by medical
evidence, between current symptomatology and the claimed in-
service stressor. if the claimed stressor is related to
combat, service department evidence that the veteran engaged
in combat or that the veteran was awarded the purple heart,
combat infantryman badge, or similar combat citation will be
accepted, in the absence of evidence to the contrary, as
conclusive evidence of the claimed in-service stressor. 38
c.f.r. � 3.304(f) (1998).

the evidence is clear that the appellant has a diagnosis of


ptsd based on non-combat stressors related to his basic
training during his initial period of acdutra. the appellant
did not serve on active duty, and did not serve in combat.
at the time of the october 1998 ro decision, the threshold
evidentiary requirement was that there was credible
supporting evidence that the claimed in-service stressors
actually occurred, as required by 38 c.f.r. � 3.304(f)
(1998).

the evidence available to the ro for consideration at that


time were the appellant's statements, the facts and
circumstances of the appellant's service, and the va
examinations which confirmed the presence of ptsd. several
of the appellant's stressors could not be verified. however,
the training under live ammunition, including grenades, and
explosions, is verified in that it is consistent with the
training received in basic training. the psychiatrist during
both examinations based the diagnosis in part on this
stressor. the ro resolving reasonable doubt in the veteran's
favor found, in effect, that there was credible supporting
evidence.

while the october 1968, decision may be viewed as somewhat


tenuous in nature, and the board may question the weight
assigned to the evidence cited in support of the favorable
decision, mere difference of opinion in the evaluation of
evidence is not a sufficient basis to render the prior
decision clearly and unmistakably erroneous. as noted above,
the error must be undebatable, one which reasonable minds
could only conclude that the original decision was fatally
flawed at the time it was made. after review of the record,
the board concludes that the october 1998 decision was not
clearly and unmistakably erroneous. accordingly, in view of
the above, restoration of service connection for ptsd is
warranted.

service connection for squamous cell carcinoma of the neck

where a veteran served continuously 90 days or more during a


period of war or during peacetime service after december 31,
1946, and carcinoma becomes manifest to a degree of at least
10 percent within one year from the date of termination of
service, such disease shall be presumed to have been incurred
in or aggravated by service, even though there is no evidence
of such a disorder during the period of service. 38 u.s.c.a.
�� 1101, 1112, 1113, 1137 (west 2002); 38 c.f.r. �� 3.307,
3.309 (2003).

the veteran claims service connection for squamous cell


carcinoma of the neck which he asserts was incurred during
military service. service medical records are negative for
cancer. the first medical evidence of carcinoma of the neck
is dated in 1998, more than 30 years after separation from
service.

the veteran has asserted that he incurred squamous cell


carcinoma of the neck due to military service. as a layman,
he is not competent to render an opinion regarding diagnosis
or etiology. espiritu v. derwinski, 2 vet. app. 492 (1992).

in a june 1999 letter, dr. l. suggested that the appellant's


longstanding neck muscle spasms were related to ptsd and
thereby to service, and added that it was of some concern
that he now had neck cancer, although he indicated that he
was not aware of any proven link between neck spasms and neck
cancer. this medical statement does not affirmatively link
the veteran's current neck cancer with military service or
the service connected ptsd.

the weight of the credible evidence demonstrates that the


claimant's current squamous cell carcinoma of the neck began
many years after service and was not caused by any incident
of service. squamous cell carcinoma of the neck was not
incurred in or aggravated by service. as the preponderance
of the evidence is against the claim for service connection,
the benefit-of-the-doubt rule does not apply, and the claim
must be denied. 38 u.s.c.a. � 5107(b) (west 2002); gilbert
v. derwinski, 1 vet. app. 49 (1990).

order

service connection for ptsd is restored subject to the law


and regulations governing the payment of monetary benefits.

service connection for squamous cell carcinoma of the neck is


denied.

____________________________________________
robert p. regan
veterans law judge, board of veterans' appeals

department of veterans affairs