Citation Nr: 0718924 Decision Date: 06/22/07 Archive Date: 07/03/07 DOCKET NO. 03-22 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The veteran had active service from August 1971 to October 1975, as well as subsequent period(s) of duty with the Hawaii Army National Guard. The appeal comes before the Board of Veterans' Appeals (Board) from an October 2000 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of this appeal the veteran submitted a claim for service connection for chronic depression, which was denied by the RO in a June 2005 rating action. That claim for an acquired psychiatric disorder other than PTSD is not a subject of the current appeal, because the claims folders before the Board do not reflect that the veteran appealed that rating action. See 38 C.F.R. § 20.200. The veteran's representative in an October 2006 Written Brief Presentation has contended, in effect, that a psychiatric disorder, other than the claimed PTSD, is somehow intertwined with the claim on appeal, so that the Board should consider a claim for service connection for a psychiatric disorder more broadly. However, as noted above, a claim for an acquired psychiatric disorder other than PTSD is not before the Board. Such a claim is not inextricably intertwined with the claim for service connection for PTSD, because the claim for service connection for PTSD is in this case in no way dependent on the outcome of a claim for a different acquired psychiatric disorder, and prejudice to the veteran is not implicated by the specter of piecemeal adjudication. See Harris v. Derwinski, 2 Vet. App. 180. 183 (1991). FINDINGS OF FACT 1. The veteran was reported to be in sound mental condition upon entry into service, and clear and unmistakable evidence to the contrary has not been presented.. 2. An independently corroborated stressor in service has not been established to support a current diagnosis of PTSD. 3. The veteran does not currently have PTSD due to an in- service stressor. CONCLUSION OF LAW The criteria for service connection for post-traumatic stress disorder are not met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.304(b), 3.304(f) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159, 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). As an initial matter, the Board notes that in November 2006 we received original service medical records (SMRs) not previously associated with the veteran's claims file. However, these consisted only of original dental and immunization records, and copies of a May 1996 pre-enlistment examination and a May 1996 pre-enlistment report of medical history, for membership with the Hawaii Army National Guard. As the current claim is for service connection for PTSD related to service in Vietnam during the Vietnam era, and does not relate to Hawaii Army National Guard membership decades later, and because these records provide no indication of psychiatric illness to further the veteran's claim, there is no reasonable possibility that these additional records may be pertinent to the adjudicative outcome of the appealed claim at either the RO or Board level. Cf. Bernard v. Brown, 4 Vet. App. 384 (1993) (adverse finding by Board is potentially prejudicial where pertinent evidence is considered by Board and but not previously considered by RO). VA has fulfilled the requirements of the VCAA in this case. By letters in April 2001 and July 2005, the veteran was informed of the notice and duty-to-assist provisions of the VCAA, and was informed of the information and evidence necessary to substantiate his claim for service connection for PTSD. Other development letters also advised him of attempts to obtain pertinent evidence. He was told what evidence was needed to substantiate his claims, to include what evidence and information VA would obtain in his behalf and what information and evidence he could submit. He was also told that it was ultimately his responsibility to see that pertinent evidence not in Federal possession is obtained. The Board finds that the contents of the various notice and evidence-development letters letter provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. Also during the course of the appeal, an SOC was issued in May 2003, and SSOCs were issued in February 2004 and July 2006, each of which provided the veteran with an additional 60 days to submit more evidence. Although the latter are "post-decisional" documents, they provided de novo review of the appealed claim, including consideration of the matter based on all appropriate criteria for the claim. See Mayfield, supra. The VCAA letters and other development letters sent to the veteran requested that the veteran inform the RO of any VA and private medical sources of evidence pertinent to his claim, and provide necessary authorization to obtain those records. They also requested evidence and information about the claimed in-service stressors, and informed of information necessary so that VA could assist in confirming claimed stressors. Attempts were made to corroborate alleged stressors, including by contacting the U.S. Army Joint Services Records Research Center (JSRRC) (formerly the Armed Services Center for Research of Unit Records (USASCRUR)) with a reply from that facility received in September 2000. Statements supportive of alleged stressors in service were also received from fellow soldiers who said they knew the veteran. The RO discounted the validity of those statements, and, as discussed below, the veteran at this most recent VA examination in May 2005 no longer presented either those purportedly corroborating statements to support his claim or the stressors alleged in those statements as supportive of his PTSD claim. Accordingly, because the veteran no longer presents those alleged stressors as supportive of his claim, no additional development can be required to address their validity in furtherance of the veteran's claim. The single remaining alleged in-service event contended to be a stressor in this case is the veteran's visit to an orphanage in service. However, as the veteran presents, and circumstances suggest, no feasible means of corroborating that visit (other than the noted purported fellow soldier statements which the RO discredited and the veteran implicitly disavowed), there is no indicated means of furthering the veteran's claim as associated with that alleged incident. Records were sought from indicated medical sources, both VA and private. All records obtained were associated with the claims folder. Hence, any VA development assistance duty under the VCAA to seek to obtain indicated pertinent records has been fulfilled. The veteran was also informed of evidence that could not be obtained. The veteran had informed the RO that he was in receipt of Social Security disability benefits, and such benefits determinations and underlying medical records were accordingly obtained and associated with the claims file in 2005, in furtherance of the veteran's claim. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The record reflects that not all the veteran's SMRs are contained within the claims folders. His service medical records folder on file contains service entrance and separation examinations and corresponding reports of medical history, and dental treatment records. The RO has previously, in 1976, made exhaustive attempts to obtain any missing SMRs, with requests to the Department of the Army, to U.S. Army Reserves Components Personnel and Administration Center, and to other indicated sources. These exhaustive efforts were to no avail. When a veteran's records have been lost, the VA has an obligation to search for alternative records which support the claim. See Cuevas v. Principi, 3 Vet. App. 542 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Moreover, although there is a lack of service medical records, VA regulations provide that service connection may be shown through other evidence. Smith v. Derwinski, 2 Vet. App. 147 (1992); 38 C.F.R. § 3.303(a) (2006). Here, the veteran's service personnel records were obtained. Also, copies of records of the veteran's service hospitalization with some corresponding treatment records were successfully obtained in November 1976. As discussed in the body of this decision, below, the RO also made official requests to the U.S. Army Joint Services Records Research Center (JSRRC), in an attempt to corroborate alleged stressor events. The veteran was also afforded VA examinations to address his claim, and medical records held by the Social Security Administration were also obtained, as already noted. Thus, all reasonable efforts were made to obtain the veteran's service medical records, and when those were to no avail, to obtain substitute records or additional records to support the veteran's claim, fulfilling this heightened duty to assist the veteran. 38 C.F.R. § 3.303(a). The veteran addressed the appealed claim by submitted written statements. He had requested a Travel Board hearing at the RO before a Veterans Law Judge from the Board, to provide testimony in furtherance of his claim, and the Board remanded the case for that purpose in August 2004. However, he withdrew that hearing request by a September 2004 signed statement. He has not made a further request to address his claim at a hearing. There is no indication that the veteran desires to address his claim further, or that such a desire remains unfulfilled. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In addition to the foregoing harmless-error analysis, to whatever extent the recent decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. Since the claim for service connection is being denied, any issues as to rating or effective date are moot. II. Service Connection for PTSD Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2006); 38 C.F.R. § 3.303(a) (2006). To establish service connection for a disability, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of 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. See Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Service connection for PTSD generally requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, as well as a link, established by the medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2006); Cohen v. Brown, 10 Vet. App 128 (1997). Section 4.125(a) of 38 C.F.R. incorporates the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), which includes the criteria for a diagnosis of PTSD. If the evidence does not establish that the veteran served in combat with enemy forces during service, or if there is a determination that the veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 289 (1994). The veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Here, the veteran contends, in effect, either that he has PTSD as a result of in-service stressors, or that he had PTSD prior to service which was aggravated by in-service experiences. The claims folder contains treatment records in which PTSD is diagnosed. However, these records are not based on a complete review of the claims folder, and are not based on any independently corroborating evidence of alleged in- service stressors, but rather only on the veteran's own self- reported history. Because service connection for PTSD requires a confirmed diagnosis of PTSD due to an independently corroborated in-service stressor, these diagnoses of PTSD cannot serve to support the claim absent independent corroboration of an in-service stressor on which such a diagnosis relies. See 38 C.F.R. § 3.304(f); Cohen. "An opinion based upon an inaccurate factual premise has no probative value." Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The veteran submitted evaluations by J.P.R., a private psychologist, dated in March 1999 and April 2000 and based upon a review of the veteran's medical history. He also submitted a report by a treating VA psychiatrist in August 2000. Other treatment records and assessments were submitted or obtained from treating mental health professionals. However, all these opinions finding PTSD associated with service were apparently based upon the veteran's allegations of combat experiences in Vietnam. These opinions were also often based on the veteran's contentions of a pre-service history of sexual, physical, and emotional abuse while in foster care before being adopted at the age of six. While these mental health care professionals found that the veteran had PTSD, generally due to both pre-service and in-service stressors, these conclusions cannot serve to support the claim for two reasons. First, there is not clear any unmistakable evidence to overcome the presumption that the veteran was in sound condition upon entering service. The presumption of soundness here - that the veteran had no mental impairment upon enlistment and entry into service - is established based on the absence of any examiner's findings of psychological impairment upon the veteran's service entrance examination in February 1971. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). The veteran has not presented pre-service medical records or other records clearly and unmistakably establishing psychological impairment prior to service. In fact, other than his own statements and medical opinions relying on those statements, he has not presented any evidence of either his alleged abuse prior to service or resulting psychological harm. Hence, such pre-existing psychological impairment cannot be accepted to support the veteran's claim, due to the failure to overcome the presumption of soundness upon enlistment and entry into service. 38 C.F.R. § 3.304(b). Second, the veteran's allegations of combat in service in Vietnam have not been independently corroborated. Complete SMRs were not obtained, but service personnel records were obtained, and these indicate that the veteran did serve in the Republic of Vietnam during the Vietnam era, but also show that he was a food service specialist, and do not document any combat duties. In submitted statements the veteran alleged that he also had duties driving a truck in Vietnam, and that he thereby encountered combat. However, VA has been unable to corroborate those activities. He did receive an Army Commendation Medal in 1972. However, VA obtained a copy of that order, which reveals that the award was for "meritorious service in connection with military operations against a hostile force." Hence, there is no indication by this award that the veteran himself experienced combat. In an August 1999 submitted statement the veteran contended that he experienced stressors in a convoy headed north out of Cam Ranh Bay, on a Flight Line in Nha Trang, and in a convoy headed north out of Nha Trang toward Pleiku, as part of the 201st Aviation Air Support Group, 17th Air Assault Group, 1st Aviation Brigade. The veteran also provided the first names, and months and years of death in Vietnam, of three fellow soldiers, whose deaths in action he was claiming as stressors. However, despite requests by the RO, the veteran was unable to provide evidence of his participation in a combat operation, and was unable to provide sufficient details of alleged stressors to allow the U.S. Army Joint Services Records Research Center (JSRRC) to confirm those alleged stressors. Specifically, the JSRRC could not confirm the veteran's presence at any combat incidents without greater specificity as to such events from the veteran. Further, the JSRRC noted that several individuals by the name of "[redacted], [redacted], and [redacted]" from the 1st Aviation Brigade died during the veteran's tour in Vietnam. However, the JSRRC stated that greater specificity was required to corroborate that the veteran personally knew a specific soldier with one of those names who died in service. Despite requests from the RO, the veteran did not provide greater specificity as to those alleged stressor events, so as to allow the JSRRC to confirm alleged stressors. The Board notes that the veteran was awarded Social Security disability benefits, in part, based upon diagnosed PTSD due to an assault and battery suffered while working as a security guard in 1998, and in part due to alleged in-service combat stressors. That 1998 incident, while a confirmed stressor, was years after service. The medical records underlying that decision were associated with the claims folder, but these also do not provide any independent corroboration of the veteran's alleged in-service stressors. The veteran also submitted statements, one dated in February 2003 and one dated in May 2003, allegedly from two fellow soldiers, to the effect that they had personal knowledge of the veteran encountering combat in service in Vietnam. However, as the RO cogently observed in the February 2004 SSOC, both of those statements bore the same spelling and grammatical errors, and hence appear to have been written by the same person. In addition, one of the statements, while purportedly from a person whose Social Security number was provided, had that person's last name spelled incorrectly in both typed and signature form, with an "I" used in the name on the statement where the correct name corresponding to the Social Security number provided had an "L". On these bases, the RO rejected these statements as not providing independent corroboration of the veteran's alleged stressors. The veteran failed to provide an explanation for the noted problems with these two purported corroborating statements. Instead, at a May 2005 VA psychiatric examination for compensation purposes, the veteran no longer gave a history of being involved in combat, and instead implied to the examiner that he had previously tried to prove this but the RO had discounted those attempts. Thus, it would appear that the veteran himself then no longer contended that he had engaged in combat, in the face of evidence showing the likely inauthenticity of the previously submitted documents. However, in January 2004 he submitted some statements which he said he had received over the Internet from other Vietnam veterans. These statements are to the effect that those soldiers witnessed combat or other stressor events, such as bombings or fellow solders being killed, or knew of such events taking place within a particular military group and/or at a point in time. However, those statements ultimately do not support the present claim, since those individuals did not say that they knew of the veteran engaging in combat or of the veteran experiencing or witnessing stressor events in service. Thus, ultimately, those statements are not adequate independent corroboration any stressors specifically alleged by the veteran, because they do not present first-hand knowledge as to the veteran, and they also do not provide additional information regarding his claimed stressors so as to allow any such stressors to be independently verified through official channels. Rather, these statements speak to stressors known of, or experienced by, those other soldiers who were not personally known to the veteran in service. Corroboration of their stressors in service does not serve to corroborate the veteran's stressors because a link of personal experience has not been established between the veteran, those other soldiers, and their alleged stressors. The evidentiary record as a whole has provided no corroborated in-service stressor to support a diagnosis of PTSD for the veteran. Allegations of the veteran's own combat exposure or personal knowledge of soldiers killed in service have not been confirmed through official channels or through corroborating statements that can withstand evidentiary scrutiny. At the above-noted May 2005 VA psychiatric examination, the examiner addressed the veteran's reported pre-service stressor history of having suffered abuse as a child, as well as his reported visit to an orphanage in service. That examiner concluded that the veteran did not have PTSD, because his condition does not meet the criteria employed by psychiatrists to diagnose that disorder. However, the examiner did conclude that the veteran has a depressive disorder in part related to experiences in service, in particular in part related to his visit to an orphanage in Vietnam. However, the examiner specifically concluded that the veteran's alleged trip to an orphanage in service, while having a psychiatric effect, could not be classified as a stressor for purposes of a diagnosis of PTSD, because, in effect, the psychological impact did not meet the criteria of a stressor for PTSD. Thus, this report fails to support the claim for several reasons. First, the veteran's described visit to an orphanage in service in Vietnam is not independently corroborated and hence could not serve as a stressor to support the claim. Second, the examiner specifically found that the alleged orphanage visit did not constitute a stressor in this veteran's case. See Cohen (determining that whether an event in service was a stressor is a medical question particular to the individual claimant's case, to be answered by a medical professional). Third, the examiner did not diagnose PTSD. As noted in the Introduction, above, the Board does not currently have jurisdiction over a perfected appeal for service connection for any psychiatric disability other than PTSD, and hence is addressing only PTSD in this decision. While the veteran's claims files do contain a record of service hospitalization for mental illness, the condition was then assessed as a situational depressive reaction due to the his recent divorce, with no report of any stressor-type incidents or of any diagnosis of PTSD. Where, as here, the veteran's complete SMRs have proved to be unobtainable, the Board's obligation to explain our findings and to consider the benefit of the doubt rule is heightened. O'Hare v. Derwinski, supra. In this case, the Board has carefully considered the evidence presented, but does not find evidence of a diagnosis of PTSD supported by an independently corroborated in-service stressor, so as to support the claim. Rather, all diagnoses of PTSD presented were based upon uncorroborated stressors, and the most recent VA examination did not find PTSD to be present. Hence, the preponderance of the evidence is against the claim, and the benefit-of-doubt doctrine, while carefully considered, cannot be for application here because the evidence is not in equipoise. 38 U.S.C.A. § 5107(b). Accordingly, absent a confirmed diagnosis of PTSD based upon a corroborated in-service stressor, the claim for service connection for PTSD must be denied. 38 C.F.R. §§ 3.303, 3.304(f). ORDER Service connection for post-traumatic stress disorder is denied. _________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs