Citation Nr: 0320847 Decision Date: 08/19/03 Archive Date: 08/25/03 DOCKET NO. 95-11 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Kelli A. Kordich, Counsel INTRODUCTION The veteran served on active duty from August 1964 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO) which denied the benefit sought on appeal. FINDING OF FACT The veteran did not engage in combat with the enemy, and there is no credible supporting evidence to corroborate the veteran's report of in-service stressors upon which a diagnosis of PTSD was based. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION Background Service medical records are negative for any complaints, findings, or treatment of a psychiatric illness. At his August 1973 separation examination, there was no indication of any psychiatric abnormalities. The veteran was separated from service due to a convulsive disorder as a result of a motor vehicle accident in Vietnam. It was noted that in January 1969, the veteran was driving a military truck when the brakes failed causing the truck to go down a mountain. The veteran jumped from the vehicle receiving head and hand injuries. Service personnel records indicate that the veteran had three tours of duty in Vietnam and was assigned to an Engineering Battalion in the Topographic Corps. The veteran received the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal. The veteran filed his claim for service connection for PTSD in September 1991. A VA outpatient treatment record dated in September 1991 shows that the veteran was seen with a foreign object in his left external canal. The veteran indicated that he had pain in his ear. The assessment was question of PTSD and foreign object left external canal. An October 1991 VA consultation report noted 45 year old with possible PTSD. The veteran submitted a statement in October 1991 indicating that when the 1968 TET Offensive started he was on guard duty with the 569th Engineering Company (Topographic Corps) when they started getting incoming rounds in their work area. He indicated that several vans were destroyed and the ramps were he parked the vans was on fire. He also indicated that while returning from Cam Rahn Bay the truck that he was driving was hit but no one was injured. He reported that he was transferred to the 553 Engineering Company, 3rd Platoon and was a gun truck driver and his tire was hit as he was coming down a mountain and the truck was disabled. The veteran indicated that the enemy kept firing and the veteran got down to his last magazine of ammunition. At that time the veteran indicated that he had already decided that he would kill himself instead of being captured. He indicated that while stationed with the 35th Engineering Battalion, Headquarters Recon Platoon as a combat photographer he was called on many times to go out and take pictures of vehicles that had hit land mines or someone working on the road that had stepped on a land mine. The veteran indicated that many times there was body parts and blood everywhere, and many times he knew these guys. He indicated that he saw the body of his best friend after he had stepped on a land mine. VA outpatient treatment records dated February 1995 show that the veteran reported that he was in Vietnam for 37 months as a combat photographer and was attached to the 1st Calvary Division and went on missions with them. He indicated that he had to photograph numerous aircraft crashes and associated carnage. He also indicated that he had to photograph dead bodies. The veteran reported that he was wounded while in Vietnam. At his March 1995 VA examination, the veteran reported that in Vietnam he was part of a recognizance group and spent much of his time photographing dead bodies that were sometimes mutilated of both enemies and allies. The veteran described three events that were particularly stressful as follows: 1) the veteran was driving a gun truck with four other service members. An enemy plane bombed them with no one else surviving except the veteran. The veteran was left alone, alive in this area and was determined that he was going to die. He had planned out how he would kill himself rather than be captured. Two hours later a Calvary helicopter rescued the veteran. 2) The veteran described while being on guard duty with his best friend, a gentleman by the name of "Big Stud", he watched while the top of "Big Stud's" head was blown off. 3) The veteran also described as particularly stressful the offensive of 1968. The veteran thought he would die during this moment and photographed many dead bodies at that time. The veteran also indicated that he suffered from seizure disorder, which he described as grand mal type since a head injury suffered in 1968 after the veteran was in a jeep that went over a land mine. The examiner diagnosed PTSD, severe. In a May 2001 statement, the veteran indicated that he worked very little in his Military Occupational Specialty (MOS) of a process photographer and worked mostly as a gun truck driver. He described this truck with an armored personnel carrier (APC) hull sitting in the bed of a 5-ton bridge truck with an extended body, which carried a 50-caliber machine gun. The veteran indicated that he also worked on recon photographing the under side of bridges where there were many snakes and booby traps, leeches, and spiders. He indicated that there were many times when he would lay on his back to photograph the underside of a bridge, on the gun truck that was the vehicle that drew fire if it was taken out the rest of the convoy was easy pickings. VA hospital records show that the veteran was admitted in May 2001 for intractable headache to rule out ischemic event and transferred to psychiatry after the veteran was found to be medically stable. He was seen in psychiatric consultation and by the substance abuse team prior to transfer. The veteran complained of suicidal ideation at the time and felt "low" and that this had been getting worse over the past 6 months. He indicated that he had frequent thoughts of hurting himself, but has never formulated a plan to do so. He indicated that his only enjoyment in life was "getting high". It was noted that the veteran had a diagnosis of PTSD and also had a history of polysubstance abuse. A June 2001 VA psychotherapy note the veteran indicated that when he was stationed in Vietnam he drank with the fellows when he could and expressed that he had access to alcohol during his third tour as a gun truck driver. The veteran spoke of enduring 130-degree heat inside a steel reinforced truck, which was part of a convoy that included fuels, liquid chemicals, and other materials for road building. The veteran stated that his unit's convoy received some form of arms fire two or three hits every time they went out. He spoke of two times his truck was involved in detonations of enemy mines. The veteran indicated of an injury he received where a bone in his leg was pushed upwards. He also indicated that he received an open head injury over his right eye due to the detonation. A letter dated April 2003 from The Department of the Army, Director, Center for Unit Records Research indicated that they enclosed an Operational Report - Lessons Learned (OR-LL) submitted by the 864th Engineer Battalion (864th Engr Bn), the higher headquarters for the 569th Engineer Company (569th Engr Co) for the period ending April 30, 1968. The report documents an attack on January 29, 1968 at Nha Trang during the 1968 TET Offensive. Nha Trang was the documented main base area location for the 569th Engr Co. The report also documented that on February 1, 1968 a large steel bridge west of Nha Trang was blown. In addition, the report documented that on April 21, 1968 the 569th Engr Co received an enemy round that destroyed one Topo-Van, a fuel truck and a water tower. It was noted that the U.S. Army casualty files available were arranged alphabetically by last name. In order to provide research concerning casualties, the veteran must provide more specific information. It was indicated that the veteran should include the individual's full name and complete unit designation to the company level. At his May 2003 VA examination it was noted by the examiner that the veteran served in Vietnam with an engineering battalion and there was some question in reviewing the documents as to whether or not he was involved in active combat. The examiner noted that his descriptions of his traumatic stressors were not consistent from interview to interview. The examiner indicated that the veteran was seen in March 1995 and at that time documented that this major stressors included an individual named "Big Stud" having his head blown off while they were on guard duty. The examiner noted that when the veteran was asked about his stressors in the present interview, he reported that the individual "Big Stud" was leading a convoy as a jeep driver. He reported that he was in the middle of the convoy and they were preparing supplies up north. He reported that the jeep was hit by mortar fire from Viet Cong coming down from the mountains. The veteran indicated that the jeep driver, "Big Stud's" legs were blown off. The veteran also reported that at the same time his jeep was hit by a mortar round and punctured all his tires. The examiner noted that this was inconsistent with his prior documented stressors. The veteran also reported that it was stressful being in an armored personnel carrier and not being able to see out. He reported problems with irritability and reported that he argued with his wife. He indicated that he had problems with decreased concentration and memory and reported he liked to work on small engines, but puts things down and could not find them and became easily frustrated. He reported problems with insomnia and stated he slept two to three hours a night. He reportedly walked two to three miles at night in the dark. He indicated that those times he was back in the state of mind of being in Vietnam in the jungle. He reported having bad dreams at night because he watched a special on Vietnam. His wife reported that he hollers and fights in his sleep. The veteran indicated that his wife took his weapons so he now sleeps with a stick next to the bed. He indicated that he has become angry and threatened to kill his wife in the past. He reported he could not stand anyone hollering at him. The veteran indicated that he had nightmares of TET 1968 and being on the JP-4 line guarding it. He talked about incoming rounds and being afraid that they would puncture the pipeline. It was noted that the veteran was not currently receiving psychiatric treatment. The examiner noted the Axis I diagnoses as probable malingering, alcohol dependence in remission, and cocaine dependence in remission. The examiner indicated that the veteran clearly knows the symptoms of PTSD and did report many symptoms consistent with PTSD. He was not consistent when talking about his most traumatic events, which were previously documented. The examiner noted the inconsistencies of the veteran's stressor events and indicated that it was unlikely that there would be this much difference between his reported most traumatic stressors, if he were being truthful regarding the events. It was noted that there was no change in affect associated with description of his traumatic stressors, which would be expected in most veterans with PTSD. The examiner noted that the veteran had a history of heavy alcohol use and meets dependence criteria, but it was in remission, according to his reports. He also had a history of cocaine dependence, which he reported he had not used in one year. The examiner stated that he saw no evidence that clearly supported PTSD. It was the examiner's opinion that the veteran was likely malingering in an attempt to obtain increased compensation. Psychological testing could be performed in order to test for evidence of malingering. However, the examiner noted that this might not be required in this case, due to his gross inconsistency regarding his traumatic stressors, which in the examiner's opinion were clearly indicators of malingering. Criteria There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, (West Supp. 2002); see Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991); cf. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002) (holding that only section 4 of the VCAA, amending 38 U.S.C. § 5107, was intended to have retroactive effect). The final rule implementing the VCAA was published on August 29, 2001. 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002)). These regulations, likewise, apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by VA as of that date, with the exception of the amendments to 38 C.F.R. § 3.156(a) pertaining to VA assistance in the case of claims to reopen previously denied final claims (the second sentence of § 3.159(c) and § 3.159(c)(4)(iii)), which apply to any claim to reopen a finally decided claim received on or after August 29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). With regard to the development that has been undertaken in this case, the record includes service medical records and personnel records; VA outpatient treatment record dated September 1991; October 1991 VA consultation report; October 1991 statement from the veteran; VA outpatient treatment records dated February 1995; VA examinations dated March 1995 and May 2003; May 2001 statement from the veteran; VA hospital record dated May 2001; June 2001 VA psychotherapy note; letter from The Department of the Army, Director, Center for Unit Records Research dated April 2003. Additionally, the record shows that the veteran has been notified of the applicable laws and regulations, which set forth the criteria for entitlement to the benefit at issue. The discussions in the rating decision, statement of the case, and supplemental statement of the case have informed the veteran of the information and evidence necessary to warrant entitlement to the benefit sought. In addition, this case was remanded in May 1997, April 1998, May 1999, November 2000 to obtain additional records, statements from the veteran, and to schedule an examination. The veteran was sent a VCAA letters in May 2001 and November 2002. In accordance with the requirements of the VCAA, the letters informed the appellant what evidence and information VA would be obtaining. The letters explained that VA would make reasonable efforts to help him get evidence such as medical records, employment records, etc., but that he was responsible for providing sufficient information to VA to identify the custodian of any records. Thus, through items of correspondence the RO has informed the appellant of the information and evidence necessary to substantiate his claim. Therefore, further development is not needed to meet the requirements of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In general, establishing service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2000); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Establishing service connection for PTSD requires (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed inservice stressor); (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed inservice stressor. Cohen v. Brown, 10 Vet. App. 138 (1997), Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996); 38 C.F.R. § 3.304(f). With regard to the second criterion, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 2002). "Where it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be 'satisfactory,' e.g., credible, and 'consistent with the circumstances, conditions, or hardships of [combat] service."' Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f). In this case, the service records do not show the veteran engaged in combat. Thus, his assertions of service stressors are not sufficient to establish that they occurred; rather, his stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). Analysis The evidence indicates that the veteran was assessed a diagnosis of PTSD at a March 1995 VA examination after describing unverified stresssors. The veteran described his stressors to the examiner, which included suffering a head injury in combat in 1968 when his jeep hit a land mine. Three events the veteran described that were particularly stressful included being bombed by a North Vietnamese plane while on convoy and being the only survivor of five service members. The veteran described that while on guard duty his best friend "Big Stud" had his head blown off in front of the veteran. The veteran also described stressful TET offensive events and his job as photographing many dead bodies afterwards. It is clear that the examiner at the March 1995 VA examination did not review the veteran's case file as it clearly indicates that the veteran suffered a head injury due to a truck accident in Vietnam which was not a combat incident. The veteran, on numerous occasions has indicated to examiners that he suffered a head injury due to combat. In an October 1991 statement, the veteran indicated that he had to take pictures of vehicles that had hit land mines or of individuals who had stepped on land mines. He indicated that many times there were body parts and blood everywhere and many times he knew these guys. He indicated he saw his best friend after he stepped on a land mine. VA outpatient treatment records dated February 1995 show that the veteran reported being a combat photographer attached to the 1st Calvary Division and he had to photograph numerous aircraft crashes and dead bodies, indicating that he was wounded himself. Again, service medical records as well as personnel records do not show that the veteran was wounded and was not a combat photographer, but was assigned to Engineering units in the Topographic Corps. The veteran has been unable to give the names of his friends who he reported had been killed, and many he photographed. In a May 2001 statement, the veteran indicated that he worked very little in his MOS of process photographer and worked mostly as a gun truck driver. The veteran reported that his truck was involved in detonations of enemy mines and again indicated he was wounded during one of these incidents where a bone in his leg was pushed upwards. He also indicated that he received an open head injury over his right eye due to the detonation. At his May 2003 VA examination, the examiner reviewed the veteran's entire file and noted inconsistencies in the veteran's reported traumatic stressors. Specifically noted was the incident in which the veteran's best friend "Big Stud" was killed. Initially the veteran indicated that his friend had his head blown off in front of the veteran while both of them were on guard duty. At his May 2003 examination, the veteran reported that "Big Stud" had his legs blown off during a convoy. It was the examiner's opinion that the veteran was likely malingering in an attempt to obtain increased compensation. The Department of the Army, Director, Center for Unit Records Research indicated that there was an attack on January 29, 1968 at Nha Tang during the TET offensive and in April 1968 the 569th Engr Co received an enemy round that destroyed one Topo-Van, a fuel truck and a water tower. However, the van being hit by an enemy round was not indicated as being one of the traumatic events described by the veteran. The veteran's personnel records do indicate that in December 1969 the veteran, after being posted as a sentinel of the guard, was found asleep in his room after leaving his post before being regularly relieved and willfully abandoning his personal weapon. In addition, the Department of the Army indicated that the veteran would have to be more specific and provide names of his friends who were killed. There is no indication that the veteran has provided the names of the four individuals who allegedly were killed during the North Vietnamese plane attack, his best friend "Big Stud's" real name, or the names of his friends he took photos of after they had been killed. In summary, to establish service connection for PTSD there must be credible supporting evidence of stressors. Here, there is no adequate evidence establishing that the veteran's claimed in-service stressors occurred. In fact, the veteran's stressor stories were not consistent and the diagnoses of PTSD that were made prior to the May 2003 VA examination, were made based on the unverified stressors reported by the veteran to include head injuries received as a result of combat and being a combat photographer assigned to the 1st Calvary Division. There is no evidence that the examiners prior to the May 2003 VA examination had read the veteran's claims file. After reviewing the claims file and examining the veteran, the May 2003 VA examiner, after noting clear inconsistencies in the veteran's claimed stressors, stated that he saw no evidence that clearly supported PTSD. It was the examiner's opinion that the veteran was likely malingering in an attempt to obtain increased compensation. A critical element needed to establish service connection for PTSD is missing. The veteran's alleged stressors have not been verified by the service department, and the veteran has submitted no independent evidence to show that his alleged stressors actually occurred. Consequently, the claim of service connection for PTSD must be denied. The preponderance of the evidence is against the claim for service connection for PTSD. Thus, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ G. H. SHUFELT Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.