Citation Nr: 0713489	
Decision Date: 05/08/07    Archive Date: 05/17/07

DOCKET NO.  05-30 485	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for a psychiatric 
disorder to include post-traumatic stress disorder (PTSD) and 
bipolar disorder.

2.  Entitlement to service connection for a low back 
disorder.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The veteran




ATTORNEY FOR THE BOARD

Lawrence W. Klute, Associate Counsel


INTRODUCTION

The veteran served on active duty from August 1992 to May 
1998; he was also a member of a reserve component until May 
2000.

This matter comes to the Board of Veteran's Appeals (Board) 
on appeal from November and December 2002 decisions by the 
RO.

The veteran testified at a video conference hearing held at 
the RO on December 1, 2006, before the undersigned Board 
member sitting in Washington, D.C.


FINDINGS OF FACT

1.  The veteran's claimed PTSD stressors are not supported by 
corroborating evidence in the record.

2.  Other psychiatric disability, including bipolar disorder, 
and a low back disorder are not attributable to the veteran's 
active military service.


CONCLUSIONS OF LAW

1.  The veteran does not have a psychiatric disorder, to 
include PTSD and bipolar disorder, that is the result of 
disease or injury incurred in or aggravated by active 
military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1154(b), 
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 
3.307, 3.309 (2006).

2.  The veteran's low back disorder is not the result of 
disease or injury incurred in or aggravated by active 
military service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 
(West 2002 & Supp. 2006); 38 C.F.R. § 3.303 (2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Preliminary Matters

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) (codified at 38 U.S.C.A. §§ 
5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 
2005)).  The VCAA imposes obligations on VA in terms of its 
duty to notify and assist claimants.

A.  The Duty to Notify

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant 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 & 
Supp. 2006); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must 
inform the claimant 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; and (4) must ask the claimant to provide 
any evidence in his possession that pertains to the claim in 
accordance with 38 C.F.R. § 3.159(b)(1).  Pelegrini v. 
Principi, 18 Vet. App. 112, 121 (2004).

The United States Court of Appeals for Veterans Claims 
(Court) has held that the VCAA notice requirements apply 
generally to all five elements of a service connection claim; 
namely, (1) veteran status, (2) existence of a disability, 
(3) a connection between the veteran's service and the 
disability, (4) degree of disability, and (5) effective date 
of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).  Ordinarily, notice with respect to each of 
these elements must be provided to the claimant prior to the 
initial unfavorable decision by the agency of original 
jurisdiction.  Id.  

In connection with the veteran's initial claims for service 
connection, a VCAA notice letter was sent in October 2002, 
prior to the RO's December 2002 decision.  That letter 
informed the veteran of the evidence necessary to establish 
service connection.  He was notified of his and VA's 
respective duties for obtaining evidence.  He was asked to 
send information describing additional evidence for VA to 
obtain, and to send any medical reports that he had.  In a 
March 2006 letter to the veteran, the RO additionally 
informed him of the criteria for establishing a rating and an 
effective date in connection with his appeal. 

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United 
States Court of Appeals for Veterans Claims held, in part, 
that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must 
ordinarily be provided to a claimant before the initial 
unfavorable decision on a claim for VA benefits.  Here, as 
noted above, as concerns the veteran's claims for service 
connection, some of the required notice was not provided to 
the veteran until after the RO entered its December 2002 
decision on his claims.  

Nevertheless, the Board finds that any defect with respect to 
the timing of the notices in this case has been corrected.  
As noted above, the veteran has now been provided with 
notices that are in compliance with the content requirements 
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The 
veteran has been afforded ample opportunity to respond to the 
notice, to submit evidence and argument, and to otherwise 
participate effectively in the processing of this appeal.  As 
the purpose of the notice requirement has been satisfied, no 
further corrective action is necessary.  

B.  The Duty to Assist
 
The VCAA also requires VA to make reasonable efforts to help 
a claimant obtain evidence necessary to substantiate his 
claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. 
§ 3.159(c), (d) (2006).  This "duty to assist" contemplates 
that VA will help a claimant obtain records relevant to his 
claim, whether or not the records are in Federal custody, and 
that VA will provide a medical examination and/or opinion 
when necessary to make a decision on a claim.  38 U.S.C.A. 
§ 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2006).

The Board notes that, except to a very limited extent, the RO 
was unable to obtain the veteran's personnel and service 
medical records (SMRs) after making diligent inquiries to 
obtain them.  The record contains a March 2005 memorandum 
that summarizes the efforts of the RO to obtain the veteran's 
personnel and SMRs. 

The Board also notes that, although the record contains VA 
and private treatment records relating to the veteran's 
psychiatric disorders, including PTSD, the veteran has not 
been afforded a compensation and pension examination in 
connection with his claim for service connection for a 
psychiatric disorder.  Under 38 C.F.R. § 3.159(c)(4) (2006), 
VA will provide a medical examination or opinion if the 
information and evidence of record does not contain 
sufficient medical evidence for VA to make a decision on the 
claim but: 1) contains competent lay or medical evidence that 
the claimant has a current diagnosed disability, or 
persistent or recurring symptoms of disability; 2) 
establishes that the veteran suffered an event, injury, or 
disease in service; and 3) indicates that the claimed 
disability or symptoms may be associated with the established 
event, injury, or disease in service.  See 38 U.S.C. § 
5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2006).  In the 
present case, as further discussed below, while the evidence 
shows that veteran has been diagnosed with, and treated for, 
psychiatric disorders subsequent to his separation from 
service, there is no evidence that establishes that the 
veteran suffered an event, injury, or disease in service, or 
that any psychiatric disorder, including PTSD or bipolar 
disorder, is related to any event, injury or disease in 
service.  Therefore, at this time, the Board finds that an 
examination is not warranted.

Because the few SMRs that were obtained show that the veteran 
did seek treatment for a low back disorder in service, he was 
scheduled for an examination.  However, the veteran failed to 
show for the examination of his spine that was scheduled for 
November 2, 2002.  Accordingly, the Board will base its 
decision on the available evidence in the claims file.  
38 C.F.R. § 3.655 (2006).  

Under the circumstances in the present case, the Board finds 
that the duty to assist has been fulfilled.  The veteran's 
personnel and service medical records have been obtained to 
the extent possible after diligent efforts to obtain the 
complete records, as have the records of his private 
treatment, VA treatment, and records related to his 
application for social security disability benefits.  He was 
afforded the opportunity for a VA examination relating to his 
claim of service connection for a low back disorder.  The 
veteran has not identified and/or provided releases for any 
other relevant evidence that exists and can be procured.  
Therefore, no further development action is warranted.

II.  The Merits of the Veteran's Claims

Under applicable law, service connection is generally 
warranted where the evidence of record establishes that a 
particular injury or disease resulting in disability was 
incurred in the line of duty in the active military service 
or, if pre-existing such service, was aggravated thereby.  38 
U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2006).  
When certain chronic diseases, such as a psychosis, is 
manifested to a compensable degree within a year of the 
veteran's separation from qualifying active military service, 
the chronic disease may be presumed to have been incurred in 
or aggravated by the period of active military service.  
38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

Service connection for PTSD requires (1) a medical diagnosis 
of PTSD; (2) credible supporting evidence that the claimed 
in-service stressor actually occurred; and (3) medical 
evidence of a causal nexus between current symptomatology and 
the specific claimed in-service stressor.  38 C.F.R. § 
3.304(f). 

The evidence necessary to establish the occurrence of a 
recognizable stressor during service to support a diagnosis 
of PTSD will vary depending upon whether the veteran engaged 
in "combat with the enemy."  See Gaines v. West, 11 Vet. App. 
353, 359 (1998).  Participation in combat, a determination 
that is to be made on a case-by-case basis, requires that the 
veteran have personally participated in events constituting 
an actual fight or encounter with a military foe or hostile 
unit or instrumentality.  See VAOPGCPREC 12-99 (October 18, 
1999); see also Moran v. Principi, 17 Vet. App. 149 (2003).

If VA determines the veteran engaged in combat with the enemy 
and his alleged stressor is combat-related, then his lay 
testimony or statement is accepted as conclusive evidence of 
the stressor's occurrence and no further development or 
corroborative evidence is required--provided that such 
testimony is found to be "satisfactory," i.e., credible and 
"consistent with circumstances, conditions or hardships of 
service."  See 38 U.S.C.A. 1154(b); 38 C.F.R. 3.304(f)(1); 
Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).

If, however, the alleged stressor is not combat related, then 
the claimant's lay testimony, in and of itself, is not 
sufficient to establish the occurrence of the alleged 
stressor.  Instead, the record must contain evidence that 
corroborates his testimony or statements.  See Cohen v. 
Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. 
App. 389, 395 (1996).  See also Zarycki, 6 Vet. App. at 98; 
Doran v. Brown, 6 Vet. App. 283, 289-290 (1994).

A.  Psychiatric Disability

The veteran contends that his psychiatric illness began when 
he was on active duty, and that he suffered stressful events 
in service which caused his current symptoms of PTSD.  He 
testified at the December 2006 hearing that, when he was 
stationed at Fort Benning, he suffered a mental breakdown and 
was rushed by his wife to the base hospital, Martin Army 
Hospital.  He was provided counseling and also was sent to 
stress management counseling.  The veteran testified that 
this in-service mental health treatment was all done on an 
outpatient basis, and that he did not have any inpatient 
mental health treatment until after service.  

The veteran attributed his depressive symptoms in part to his 
military experience as a food service specialist, working 
long hours away from his wife, who decided to leave him 
because she did not like his military life.  He stated that 
his grandmother, who had raised him, died while he was 
assigned to Operation Uphold Democracy in Haiti, and he never 
found out until he returned from Haiti.  With regard to his 
PTSD claim, the veteran testified that he saw Haitian voodoo 
which frightened him and made him paranoid.  He witnessed a 
Haitian killed when he was hit by a convoy truck.  At the 
trash area, he saw a woman have her face maimed by a machete 
in a fight over food.  He also testified that, when he was on 
the end truck of a convoy, a Haitian mob was demanding that 
the soldiers kill a man, and the mob ended up beating the man 
to death in front of the veteran.  He said that he has 
nightmares about this man all the time.  He said that Haiti 
was a very difficult place to be, one he wished he had never 
visited.  The veteran also testified how he had been stressed 
by being on alert 24 hours, 7 days a week, when he was 
stationed in Korea.  He still remembered the frequent loud 
sound of warning horns to warn of imminent attack from the 
North.  

The veteran testified that after service his first 
hospitalization was at a treatment facility called Ridgeview 
Mental Rehabilitation in Georgia (treatment records from that 
hospital were not obtained for the record as the veteran did 
not provide a release to obtain them).  He had reported to a 
psychiatric examiner in connection with his examination for 
social security disability benefits that this hospitalization 
occurred during 2001 at Ridgeview Institute in Smyrna, 
Georgia.  

The record shows that the veteran was admitted to Jackson 
Park Hospital in Chicago on August 18, 2002.  The veteran 
reported that he had moved to Chicago from Georgia about 
three months before.  He reported that he had been seen by a 
psychiatrist in Georgia, but he was not taking his 
medication.  He complained of increased feelings of 
depression, difficulty sleeping and having suicidal thoughts.  
He reported that he smoked cocaine and drank alcohol whenever 
he could afford it.  The psychiatrist diagnosed the veteran 
with bipolar affective disorder, mixed type, rule out 
recurrent major depression with psychotic features, cocaine 
abuse and alcohol abuse.  

The veteran was admitted to the mental health unit of 
Chicago's Westside VAMC on August 27, 2002.  The discharge 
summary reveals that when the veteran was admitted he was 29 
years old, unemployed, with a history of cocaine abuse (he 
reported a $100.00 per day habit over the past five years), a 
reported previous diagnosis of bipolar disorder, and 
complaints of depressed mood and suicidal thoughts that had 
been steadily increasing over the past month.  The veteran 
reported feeling depressed because he had lost a good job in 
Georgia due to cut-backs, and his uncle died in front of him 
a month before due to a brain aneurysm.  He was discharged on 
September 3, 2002, to the VAMC's Psychosocial Residential 
Rehabilitation Treatment Program (PRRTP).  The diagnosis on 
discharge from the mental health unit was bipolar disorder 
type II, cocaine abuse, and alcohol abuse.   

The veteran was discharged from the residential PRRTP unit on 
October 17, 2002.  On discharge from the program, he was 
diagnosed with bipolar disorder, depressed, provisional PTSD, 
and cocaine dependence in early remission.  The treating 
psychiatrist also noted that the veteran had physical 
conditions including lumbar degenerative disc disease with 
low back syndrome, ankle pain supported by radiologic 
evidence of osteopenia on the right, and chronic knee pain.  
He was also noted to have enduring psychosocial problems.  

In connection with his application for social security 
disability benefits, the veteran was provided a psychiatric 
evaluation on November 18, 2002.  The psychiatrist's 
diagnosis was (1) bipolar disorder, depressive phase with 
active psychotic features, (2) PTSD, and (3) cocaine and 
alcohol abuse.  The examiner noted, as concerned the 
diagnosis of PTSD, that the veteran had stressors (the Haiti 
experiences noted above), auditory and visual hallucinations, 
flashbacks, suicidal ideation, and substance abuse.  The 
examiner also noted that the veteran admitted to ideas of 
reference, and that he clearly demonstrated paranoid ideation 
during the examination.  

In his September 2002 claim, the veteran claimed service 
connection for the following mental disorders:  major manic 
depression, bipolar disorder, PTSD, and insomnia.  (The Board 
notes that insomnia is a symptom of mental disorders.)  
Review of the veteran's treatment record, as noted above, 
shows that he has not been diagnosed with major depression.  
He has been diagnosed with bipolar disorder, depressive phase 
with psychotic features.  He was also diagnosed with PTSD by 
the social security examiner (the VA psychiatrist who treated 
the veteran in the PRRTP unit made only a provisional 
diagnosis of PTSD), and the veteran has also been diagnosed 
with cocaine and alcohol abuse.

In his April 2004 stressor statement, his February 2004 NOD, 
and his August 2005 substantive appeal, the veteran has 
essentially contended that, because he has been diagnosed 
with current mental disorders, his lay statements that they 
are related to his active military service should be accepted 
as evidence to prove service connection.  However, according 
to the regulatory requirement for establishing service 
connection outlined above, in addition to a diagnosis, the 
evidence of record must establish that a particular injury or 
disease resulting in disability was incurred in the line of 
duty in active military service.  

The Board notes that the veteran is competent to testify 
about what he has experienced with regard to stressful events 
that occurred in service, and the symptoms he has experienced 
since that time.  However, although the veteran asserts that 
his difficulties with psychiatric illness have existed since 
service and can be attributed to stressful events in service, 
the record does not establish that he has the medical 
training necessary to offer competent opinions on matters of 
medical diagnosis or etiology.  See, e.g., Espiritu v. 
Derwinski, 2 Vet. App. 492, 494-95 (1992) (a lay person is 
not competent to offer opinions that require medical 
knowledge).  Additionally, as concerns the claim of service 
connection for PTSD, the veteran's lay statements of stressor 
events cannot be accepted as evidence unless the evidence 
supports that he was engaged in combat.  If the alleged 
stressor is not combat related, then the claimant's lay 
testimony, in and of itself, is not sufficient to establish 
the occurrence of the alleged stressor.  Instead, the record 
must contain evidence that corroborates his testimony or 
statements.  See Cohen v. Brown, supra; Moreau v. Brown, 
supra.  See also Zarycki, supra; Doran v. Brown, supra.

In the present case, the Board notes that the record contains 
no medical opinion that associates the veteran's bipolar 
disorder with service.  While the veteran testified that he 
did seek outpatient treatment for stress that he experienced 
in service, the record shows that he did not seek inpatient 
treatment until sometime in 2001 in Georgia, apparently after 
his wife left him and after he lost his job.  In August 2002 
the VA psychiatrist who treated the veteran in the mental 
health unit diagnosed the veteran with stress factors in the 
form of an unstable living situation, recent loss of his job, 
and the death of his uncle.  The VA psychiatrist who treated 
the veteran in the PRRTP unit noted that the veteran also 
suffered from physical ailments including lumbar degenerative 
disc disease with low back syndrome, ankle pain supported by 
radiologic evidence of osteopenia on the right, and chronic 
knee pain.  

The Board finds that the record does not contain evidence 
that would support a conclusion that the veteran was in 
combat with the enemy when his claimed stressor(s) occurred.  
The veteran's Department of Defense Form 214 (DD Form 214) 
indicates that his military occupational specialty (MOS) 
during service was that of "Food Service," and that he 
received, among others, the Army Commendation Medal, the Army 
Achievement Medal, the Army Good Conduct Medal, the National 
Defense Service Medal, the Armed Forces Expeditionary Medal, 
the Army Service Ribbon, and the Overseas Service Ribbon.  
Therefore, the official record of discharge does not confirm 
that the veteran engaged in combat while in active military 
service.  None of the military decorations that he received 
are among those typically recognized as indicative of combat 
service, (the Purple Heart, Combat Infantryman Badge, or 
similar combat citation).  See VAOPGCPREC 12-99 (October 18, 
1999); 38 U.S.C.A. 1154(b); 38 C.F.R. 3.304(d). 

Additionally, nothing about the remaining evidence suggests 
that the veteran actually engaged in combat as contemplated 
by regulation.  Indeed, the stressor incidents that the 
veteran has described that he witnessed in Haiti, the strange 
rites and evidence of the voodoo and the cruelty of the 
people, while horrific, were not events that occurred in 
combat.  Nor did the noise of warning horns in Korea during 
peacetime constitute engagement in combat.

Therefore, because there is no medical opinion evidence to 
associate bipolar disorder with active military service, and 
because there is no evidence that the veteran engaged in 
combat, nor do his stressors as described constitute 
engagement in combat, the veteran's claim of service 
connection for a psychiatric disorder to include PTSD and 
bipolar disorder must be denied.  None of the stressors 
reported by the veteran have been corroborated, and no 
psychosis was objectively manifested to a compensable degree 
within a year of the veteran's separation from service.  
Additionally, cocaine and substance abuse disorders are not 
compensable disabilities within the meaning of the law.  
38 U.S.C.A. § 1110.  

B.  Low Back Disorder

The veteran testified at the December 2006 hearing that, as a 
food service specialist, his duties included work as a ration 
person doing a lot of loading and unloading five-ton trucks 
of food supplies, and cases of meats and rations on a daily 
basis for about 5 years.  He contends that his current back 
disorder is due to the regular heavy lifting he experienced 
in service.  He testified that he did not seek treatment in 
service (the record does show that he did seek treatment for 
chronic low back pain in service, as discussed below), but 
instead toughed it out using over-the-counter pain 
medications.  He said that he did not seek treatment for his 
back until he was at the VAMC in Chicago. 

The Board notes that the veteran was provided with the 
opportunity to have a VA compensation and pension examination 
of his spine in connection with his claim for service 
connection.  This examination was scheduled for November 2, 
2002.  However, the veteran did not report for the 
examination.  The provisions of 38 C.F.R. § 3.655(b) (2006), 
in the case of a veteran's failure to report for a VA 
examination, provides that when examination is necessary to 
favorably decide a claim, and "[w]hen a claimant fails to 
report for an examination scheduled in conjunction with an 
original compensation claim, the claim shall be rated based 
on the evidence of record."  In the present case, the Board 
determines that the veteran's claim on appeal for service 
connection of a low back disorder is an original compensation 
claim for the purposes of 38 C.F.R. § 3.655(b) (2006).  This 
is because the veteran timely appealed the denial of service 
connection for a low back disorder.  Accordingly, the claim 
will be decided based on the evidence of record.

Review of the record reveals that, during September 1996 and 
February 1997 the veteran did visit the Martin Army Hospital 
complaining of low back pain when he was stationed at Fort 
Benning, Georgia.  However, radiological studies and a bone 
scan showed a normal spine.  The record also shows that in 
September 1996, February 1997, and October 1997, the veteran 
was issued pain medications at the Army hospital.  In the 
October 17, 2002 discharge summary from the PRRTP unit at 
Chicago's Westside VAMC, the veteran's treating psychiatrist 
noted, in pertinent part, that during the course of the 
program, a radiographic study of the lumbar spine showed mild 
relative decreased height of the posterior L5-S1 disc space.  
The remaining disc spaces appeared well preserved.  The 
diagnosis included lumbar degenerative disc disease with low 
back syndrome. 

Although the veteran asserts that his low back disorder has 
existed since service and can be attributed to regular heavy 
lifting in connection with his duties in service, the record 
does not establish that he has the medical training necessary 
to offer competent opinions on matters of medical diagnosis 
or etiology.  See Espiritu, supra.  In the present case, 
however, there is no medical opinion evidence to connect the 
veteran's current lumbar degenerative disc disease to a 
particular injury or disease that was incurred in the line of 
duty in the active military service.  The radiological 
evidence from September 1996 and February 1997 showed that 
the veteran's spine was normal.  He separated from service in 
May 1998.  He testified that he did not seek treatment for a 
low back disorder until he entered the Chicago Westside 
VAMC's PRRTP unit in September 2002.  

Therefore, without medical opinion evidence that associates 
the low back disability to a particular injury or disease 
that was incurred in the line of duty in the active military 
service, the claim of service connection must be denied. 


ORDER

Service connection for psychiatric disability, to include 
PTSD and bipolar disorder, is denied

Service connection for a low back disorder is denied.



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs