Citation Nr: 0902910 Decision Date: 01/28/09 Archive Date: 02/09/09 DOCKET NO. 06-07 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The veteran served on active duty from September 1967 to June 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for PTSD. In November 2008, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The veteran had perfected an appeal for a claim of entitlement to service connection for peripheral vascular disease. At the November 2008 hearing, the veteran submitted a written statement, indicating he wanted to withdraw that claim from the appeal. Thus, that claim is no longer part of the current appellate review. See 38 C.F.R. § 20.204 (2008). Also at the hearing, the veteran submitted additional evidence along with a waiver of initial consideration by the agency of original jurisdiction. Thus, the Board may consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2008). FINDINGS OF FACT 1. PTSD was not diagnosed in service. 2. The veteran did not engage in combat with the enemy during military service. 3. The veteran has not been diagnosed with PTSD based on an independently verified in-service stressor. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in correspondence dated in January and February 2004 of the information and evidence needed to substantiate and complete a claim for service connection for PTSD, to include notice of what part of that evidence is to be provided by the claimant, notice of what part VA will attempt to obtain, and the need for the veteran to provide specific information regarding his in-service stressors. VA did fail to provide notice how disability evaluations and effective dates are assigned prior to initial consideration of the claim. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The record, however, shows that any prejudice that failure caused was harmless, as the preponderance of the evidence is against entitlement to service connection for PTSD. Thus, any questions as to the appropriate disability rating or effective date to be assigned are moot. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims including VA medical records and records relied upon by the Social Security Administration in granting the veteran disability benefits. VA also submitted the veteran's in- service stressors to the proper agency in an attempt to verify them. VA did not provide the veteran with an examination in connection with his claim for service connection for PTSD. The Board finds that an examination was not necessary to decide the merits of this claim. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Admittedly, the threshold for the duty to provide an examination is rather low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, however, the evidence of record is sufficient to decide the claim for service connection for PTSD. While the veteran has a valid diagnosis of PTSD, the in-service stressors alleged by the veteran have not been verified. As a noncombat veteran, his statements alone cannot establish the existence of a stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). As stated above, VA submitted the veteran's in-service stressors to the proper agency for verification, and it was unable to verify the stressors the veteran has described. Without a corroborated stressor, there is no reason for VA to provide an examination or obtain an opinion in connection with this claim. There is not a scintilla of evidence that any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, the appellant has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Analysis At the November 2008 hearing before the undersigned, the veteran's representative argued that an amendment to the provisions of 38 C.F.R. § 3.304(f), which addresses the evidence necessary to establish a claim for service connection for PTSD, applied to the veteran's claim because he had been diagnosed with PTSD during service. It was alleged that when the veteran first landed in Vietnam in February 1968 at the airport in Tan Son Nhut, his unit received incoming fire. The veteran elaborated on this stating that they landed in Vietnam in a civilian airplane and were receiving incoming rocket and mortar attacks. He stated this occurred in February 1968. The representative stated that such stressors had been verified. The veteran stated he was in Cam Ranh Bay in March 1968 and received incoming fire at that location as well. He denied witnessing anyone being injured or killed during those attacks, but noted the attacks were not far from him. The veteran testified that he was seen in service by a psychiatrist and was diagnosed with battle fatigue. He stated it was suggested he receive a medical discharge. He noted he went absent without leave due to medical problems his wife was having. The veteran felt that the military had not been understanding as to his wife's medical problems and denied him leave. The Board has reviewed all the evidence in the veteran's claims file, which includes his written contentions, his testimony, service treatment records, Social Security Administration records, and VA medical records. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection is 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; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). In October 2008, VA amended the provisions of 38 C.F.R. § 3.304(f) by eliminating the requirement of evidence corroborating occurrence of the claimed in-service stressor in claims in which PTSD is diagnosed in service. 73 Fed. Reg. 64208 (Oct. 2008). Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau, 9 Vet. App. at 395; Dizoglio, 9 Vet. App. at 166. In such cases, the record must contain service records or other credible evidence that supports and does not contradict the veteran's testimony. See Doran v. Brown, 6 Vet. App. 283, 289 (1994). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the grant of service connection for PTSD. The reasons follow. The veteran asserts that he was diagnosed with PTSD in service. He bases this assertion on the fact that a VA examiner reviewed his service treatment and personnel records and opined that the symptoms the veteran exhibited in service were indicative of PTSD. See November 13, 2008 letter from Dr. JW. The Board disagrees that he was diagnosed with PTSD in service and finds that the amendment to 38 C.F.R. § 3.304(f) does not apply to the veteran's claim. The intent of the amendment was to assist veterans who had actually been diagnosed with PTSD while in service. See 72 Fed. Reg. 64208 (Oct. 2008). There is no suggestion that the amendment was to assist those who are retrospectively diagnosed with post traumatic stress disorder after service. In providing its rationale for the amendment, VA stated the following, in part: VA has found, based on claims submitted since September 11, 2001, that service members are increasingly being diagnosed with PTSD while still in service, rather than after discharge from service. The increased incidence of in-service diagnosis of PTSD is attributable to advances in medicine and increased monitoring of service members' mental health by the service departments. Given the ability to more quickly diagnose PTSD and the proximity between an in-service diagnosis of PTSD and the claimed occurrence of the stressor, VA no longer believes it is necessary to require evidence corroborating occurrence of the stressor in claims based on an in-service diagnosis. Id. at page 64209 (Emphasis added). The veteran's service treatment records do not show a diagnosis of PTSD. An after-the-fact diagnosis of PTSD 40 years after discharge from service is not an in-service diagnosis of PTSD in service. The Board does not agree with the veteran that the after-the-fact diagnosis of PTSD meets the amended provisions of 38 C.F.R. § 3.304(f). For these reasons, the Board finds that the VA examiner's postservice opinion does not constitute an in-service diagnosis of PTSD. The fact that there is no diagnosis of PTSD in service is not, however, outcome determinative. The veteran provided VA with a statement detailing his in- service stressors in April 2007. He stated he arrived in Tan Son Nhut Air Force base on February 12, 1968, while the base was being mortared and rocketed. He stated they boarded buses from the airport while incoming rounds were hitting the runway and went to the 90th Replacement Company. The veteran stated they received incoming rocket attacks on February 13, 1968 as well. Reportedly, on the third night, the "ammo bunker was destroyed." The veteran stated he arrived in Cam Ranh Bay Air Base approximately on February 17, 1968, and they received incoming rounds. The veteran also stated that from April to October 1969, he was with the "HHHC" 18th Engineer Brigade, during which time he picked up damaged equipment and wounded/dead soldiers. In December 2007, VA sent the veteran's stressor statements and his personnel file to the U.S. Army & Joint Services Records Research Center (JSSRC) In the response, the JSSRC indicated that it was able to verify that Tan Son Nhut received incoming mortar, rocket, or ground attacks before the veteran's arrival in February 1968 and after his departure later that month, but not on the dates provided by the appellant. Moreover, the JSSRC noted that The Center for Military History indicated that the 31st Supply Company to which the veteran was attached was in Cam Ranh Bay during that period, and thus it was unable to place the veteran's supply company at Tan Son Nhut. While Cam Ranh Bay Air Base was attacked in March 1968, there was no reported damage or injuries to personnel. The Board concludes that the veteran's stressors have not been corroborated, or if they have been, that stressor has not been the basis for a diagnosis of post traumatic stress disorder. While the veteran claims to have been in Tan Son Nhut, there is no documentation to substantiate the allegation that the airbase was attacked while he was there, to include lay statements from someone who served with him. Thus, the Board does not find that the veteran engaged in combat. Hence, his statements alone are not be enough to establish the occurrence of the alleged stressors. See Moreau, 9 Vet. App. at 395; Dizoglio, 9 Vet. App. at 166. While the veteran at his November 2008 hearing stated that he was in Cam Ranh Bay in March 1968 when it received incoming mortar rounds, a review of the evidence of record shows that the appellant has never been diagnosed with post traumatic stress disorder based on this March 1968 stressor standing alone. Indeed, the Board can find no reference to this March 1968 stressor in any clinical record. As a result, the Board does not find a basis to grant service connection. While the veteran has been diagnosed with post traumatic stress disorder, such diagnosis is not based upon an independently-verified stressor. Because the diagnosis of PTSD is based on an unconfirmed stressor, service connection for PTSD cannot be granted. 38 C.F.R. § 3.304(f). Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for PTSD; hence, the reasonable doubt doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consequently, the claim must be denied. ORDER Service connection for PTSD is denied. _______________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs