Citation Nr: 0812083 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-21 338A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from August 1980 to July 1992, with service in Southwest Asia (SWA) from December 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim. The veteran participated in a Board videoconference hearing with the undersigned Veterans Law Judge in February 2008. A transcript of that proceeding has been associated with the veteran's claims file. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the veteran's claim for service connection for PTSD has been obtained or requested by the RO, and he has been notified of the evidence needed to substantiate this claim. 2. The veteran did not engage in combat during his time in active service. 3. There is no credible supporting evidence to establish that the claimed stressors occurred. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active military duty. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to and following the initial adjudication of the veteran's claim, letters dated in February 2005, October 2005 and March 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The aforementioned letters told him to provide any relevant evidence in his possession. See Pelegrini II, at 120-21. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The Board notes that the veteran provided VA with the names of five individuals who served with him in SWA. See veteran's statement, May 12, 2005. The October 2005 notice letter sent to the veteran noted the names of these soldiers and requested the veteran submit any available statements from these men regarding the duties the veteran was assigned to perform during Operation Desert Storm. See VA notice letter, October 6, 2005. The veteran did not submit any additional information. The Board notes that the duty to assist is not always a one-way street. If the veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes an examination is not needed in this case because the only evidence indicating the veteran "suffered an event, injury or disease in service" is his own lay statements. Such evidence is insufficient to trigger VA's duty to provide an examination. The Court has held, in circumstances similar to this, where the supporting evidence of record consists only of a lay statement, that VA is not obligated, pursuant to 5103A(d), to provide an appellant with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the veteran's claim because there was no evidence, other than his own lay assertion, that " 'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). See also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 3.159(c)(4)(i) is not in conflict with § 5103A(d) and evidence of record "establishing that the veteran suffered an event, injury, or disease in service," is required to trigger VA's duties pursuant to § 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under § 5103A to provide a veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some casual connection between his disability and his military service"). There is no reasonable possibility that a medical opinion would aid in substantiating the veteran's claim since it could not provide evidence of a past event. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. The Merits of the Claim Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2007). Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2007). Initially, the Board acknowledges that the veteran has received medical diagnoses of PTSD, attributed to his account of his military service. Nevertheless, the Board is unable to accept the diagnosis as based upon a confirmed stressor because the preponderance of the evidence is against a finding that the veteran engaged in combat with the enemy during active service, and the record does not otherwise contain independent evidence which confirms his account of in-service stressors. The Board must assess the credibility and weight of all the evidence, including the medical evidence. "Just because a physician or other health professional accepted appellant's description of his Vietnam experiences as credible and diagnosed appellant as suffering from PTSD does not mean the [Board is] required to grant service connection for PTSD." See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board is not required to accept a veteran's uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). 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 Medal, 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. "Credible supporting evidence" of a non-combat stressor may be obtained from service records or other sources. See Moreau v. Brown, 9 Vet. App. 389 (1996). However, the regulatory requirement for "credible supporting evidence" means that "the appellant'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 (1996). VA's Office of General Counsel has defined the phrase "engaged in combat with the enemy" to mean that the veteran must have personally participated in a fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99. The fact that the veteran served in a "combat area" or "combat zone" does not mean that he himself engaged in combat with the enemy. Id. Moreover, a general statement in the veteran's service personnel records that he participated in a particular operation or campaign would not, in itself, establish that he engaged in combat with the enemy because the terms "operation" and "campaign" encompass both combat and non-combat activities. Id. Whether or not a veteran "engaged in combat with the enemy" must be determined through recognized military citations or other supportive evidence. No single item of evidence is determinative, and VA must assess the credibility, probative value, and relative weight of each relevant item of evidence. Id. The veteran's assertions that he experienced combat with the enemy are not ignored, but are evaluated along with the other evidence of record. Id. However, the veteran's assertions that he "engaged in combat with the enemy" are not sufficient, by themselves, to establish this fact. The Board finds that the veteran did not engage in combat with the enemy. In the instant case, the veteran's Department of Defense Form 214 reports that the veteran did not receive decorations, medals, badges, commendations, citations, or campaign ribbons indicative of combat. However, foreign duty in SWA and Germany was noted. The veteran's military occupational specialties were reported as petroleum supply specialist and a motor office petroleum, oil and lubricants clerk. His military occupational specialties do not indicate combat service. There is no indication in the personnel records that he was assigned or participated in combat duties. Furthermore, the veteran does not allege that he was in combat. Therefore, although the evidence shows that he served overseas, the evidence does not support the conclusion that the veteran personally engaged in combat with the enemy, and the provisions of 38 U.S.C.A. § 1154(b) do not apply. There must be credible supporting evidence of record that the alleged stressors occurred in order to warrant service connection. His lay testimony is insufficient, standing alone, to establish service connection. See Cohen v. Brown, 10 Vet. App 128, 147 (1997) (citing Moreau, 9 Vet. App. at 395). Initially, the Board notes that the veteran has been diagnosed with PTSD, compliant with the DSM-IV. See VA treatment records, April 14, 2005. Thus, the veteran has satisfied the first element of 38 C.F.R. § 3.304(f). The Board now turns to the question of whether the veteran's stressors can be verified and the presence of medical nexus. The veteran contends that he suffered traumatic events during service that are the cause of his currently diagnosed PTSD. The veteran states that he experienced these events during his time served in Iraq, Kuwait and Saudi Arabia from December 1990 to May 1991. First, the veteran reported having to pass dead Iraqi soldiers and civilians that were victims of bombings during attempts to evacuate to Kuwait. The veteran noted that there were many cars that had been blown up and remained on the roads he traveled. He indicated that dead bodies were in these cars and that the odor was unbearable. Second, the veteran reported having to transport the bodies of fallen soldiers to an airport where they were taken back to the United States. During the development of the veteran's claim, the RO attempted to verify the veteran's alleged stressors. In December 2004, the U.S. Armed Services Center for Unit Records Research (USASCURR), whose name has now changed to U.S. Army and Joint Services Records Research Center (JSRRC), responded to the RO with a letter explaining that it was possible the veteran, as part of the 3rd Armored Division Support Command may have helped transport casualties. However, JSRRC could not verify what missions the veteran performed during his tour of duty. It was noted that this information may be contained in his personnel records. Review of the veteran's service personnel records did not confirm the veteran's allegations that he helped transport casualties. In December 2005, the veteran submitted a letter from the Department of Defense addressed to Gulf War veterans of units that were near Khamisiyah, Iraq, between March 10 and March 13, 1991, to inform them of possible exposure to very low levels of chemical warfare agents released during demolition operations following the war. See Department of Defense letter, September 27, 2005. The Board notes that this letter did not specifically name the veteran, but rather, was a general explanation of events near Khamisiyah, Iraq during the time the veteran was in SWA. While the veteran may have been near Khamisiyah, the letter does not address whether the veteran participated in any activities such as transporting casualties. The veteran was requested to provide additional information, to include the most specific dates possible, type and location of the incidents, the full names of the casualties, statements from soldiers in his unit, unit designations to the company level and other units involved. The veteran provided additional testimony during his February 2008 hearing, but did not include additional information that would assist in verification of his stressors. See Board video conference hearing transcript, February 20, 2008. There is no corroborating "credible supporting evidence" of the claimed in-service stressors. Without specific identifying information such as dates, places, and/or names of individuals involved in the alleged stressor events, there is no possible way the events could ever be corroborated. The Board is cognizant of the recent case of Pentecost v. Principi, 16 Vet. App. 124 (2002), wherein the Court reversed the Board's denial of a claim for service connection for PTSD on the basis of an unconfirmed in-service stressor. However, in Pentecost, the claimant submitted evidence that his unit was subjected to rocket attacks. The Court pointed out that corroboration of every detail of a stressor under such circumstances, such as the claimant's own personal involvement, is not necessary. See, also, Suozzi v. Brown, 10 Vet. App. 307 (1997). The facts in this case are distinguishable because the veteran has submitted no independent evidence of the occurrence of the claimed in- service stressors. Indeed, as noted above, the RO contacted JSRRC to obtain additional information, which did not confirm his allegations. Without verification of the veteran's stressors, there is no need to discuss the question of medical nexus. See 38 C.F.R. § 3.304(f) (2007). In summary, the Board has concluded that the preponderance of the evidence is against a finding that the veteran engaged in combat with the enemy while on active duty and, additionally, there is no independent verification of his reported in- service stressors. Therefore, the Board finds that the preponderance of the evidence is against the veteran's claim of service connection for PTSD, and it must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. ORDER Service connection for PTSD is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs