Citation NR: 9717319 Decision Date: 05/15/97 Archive Date: 05/29/97 DOCKET NO. 94-28 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from July 1970 to July 1972. He served in Vietnam from April 1971 to February 1972. This matter comes before the Board of Veterans’ Appeals (Board) from a March 1993 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the veteran service connection for a nervous disorder. A subsequent RO decision, in August 1996, denied service connection for “a nervous disorder to include post traumatic stress disorder.” A Travel Board hearing was held on January 15, 1997, before Bettina S. Callaway, a member of the Board who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7102(b) (West 1991 & Supp. 1996) and who is rendering the determination in this case. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he is entitled to service connection for an acquired psychiatric disorder, including post traumatic stress disorder (PTSD). Specifically, he claims that a number of stressful incidents he experienced in Vietnam resulted in PTSD which now entitles him to service connection. He asserts his stressors are: witnessing a rape of a Vietnamese woman, being involved in inter-company racial violence, being exposed to drugs and alcohol, seeing many of his friends injured or dead, and being unjustly placed in jail for an altercation with an officer. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran’s claim for service connection for an acquired psychiatric disorder involving PTSD. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the veteran’s claim has been developed. 2. Service medical records indicate that the veteran was diagnosed with an impulsive personality disorder. 3. A current medical diagnosis of PTSD is recorded. 4. It is not shown that the veteran engaged in combat with the enemy at any time during his period of active duty. 5. The occurrences of the veteran’s claimed Vietnam service stressor incidents are not corroborated by credible supporting evidence. CONCLUSIONS OF LAW 1. The veteran’s post traumatic stress disorder was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1996). 2. The veteran’s impulsive personality disorder is not a disease or injury within the meaning of the applicable legislation providing for VA compensation benefits. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Well-grounded Claim Initially, the Board finds that the veteran’s claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The law provides that “a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” 38 U.S.C.A. § 5107(a) (West 1991). A well- grounded claim for service connection is “a plausible claim, one which is meritorious on its own or capable of substantiation.” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The claim does not need to be conclusive, but it must be accompanied by supportive evidence to meet the initial burden put on the veteran by § 5107(a). Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Mere allegations or speculations that the disability had its onset in service or is service connected is not enough to make the claim well- grounded. Id.; see Franko v. Brown, 4 Vet.App. 502, 505 (1993); Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). The three elements of a well-grounded claim are: (1) competent evidence of a current disability as provided by a medical diagnosis; (2) competent evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (citations omitted); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1996). Here, the veteran has submitted a claim with evidence of a current medical diagnosis of PTSD, of inservice stressors alleged to have caused the PTSD, and of medical evidence relating the current diagnosis to inservice events. This is sufficient to make out a well-grounded claim. Cohen v. Brown, No. 94-661, slip op. at 10 (U.S. Vet.App. March 7, 1997). Since the veteran has not alleged that any records of probative value that may be obtained and which have not already been associated with his claims folder are available, the Board finds that all relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). II. Service Connection for PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty for training. 38 U.S.C.A. §§ 101(16), 101(24), 1110 (West 1991); 38 C.F.R. § 3.303 (1996). When initial diagnosis of the disease or injury occurs after service, or active duty for training, service connection may still be granted “when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.” 38 C.F.R. § 3.303(d) (1996). Service connection for PTSD requires (1) medical evidence establishing a clear, current diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1996); see also VA ADJUDICATION PROCEDURE MANUAL M21-1 (MANUAL M21-1), Part VI, 11.38 (Aug. 26, 1996) (reiterating the three PTSD service-connection requirements set forth in regulation § 3.304(f) and specifically requiring “credible supporting evidence that the claimed in-service stressor actually occurred”). The MANUAL M21-1 provisions in paragraph 11.38 are substantive rules which are “the equivalent of [VA] [r]egulations”. See Hayes v. Brown, 5 Vet.App. 60, 67 (1993) (citing Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991)). a. Clear and current medical diagnosis To make a successful service connection claim for PTSD, the regulations require “medical evidence establishing a clear diagnosis” of PTSD. 38 C.F.R. § 3.304(f) (1996). Because specific requirements regarding the sufficiency of a stressor and the adequacy of symptomatology to support a PTSD diagnosis are not contained in § 3.304(f), a clear diagnosis of PTSD by a mental health professional must be “presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria.” Cohen, supra at 15. In this case, the record contains a report of VA mental disorders examination, dated March 1996. It states that the veteran was very stressed while in service, especially from seeing some of friends injured or deceased. It states that some were shot and some cut down by a helicopter, and that these incidents have made the veteran nervous, irritable, and feel guilty. The report shows current symptomatology of: nightmares about Vietnam, difficulty with sleep, sweating, outbursts of anger, and feelings of estrangement. It indicates a diagnosis of “chronic PTSD,” based upon the veteran’s “present mental status and history.” The Board finds that the requirement of a clear, current PTSD diagnosis has been satisfied. b. Occurrence of inservice stressors The second criterion outlined in § 3.304(f) is the requirement of credible evidence necessary to establish that the claimed stressor actually occurred. The nature of this evidence varies depending on whether it can be determined that the veteran “engaged in combat with the enemy.” 38 U.S.C.A. § 1154(b) (West 1991); see also Gregory v. Brown, 8 Vet.App. 563 (1996); Collette v. Brown, 82 F.3d 389 (Fed.Cir. 1996). The United States Court of Veterans Appeals (the Court) has held that “[w]here 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). However, where VA determines from the evidence that the veteran did not engage in combat with the enemy or where the veteran, even if he did engage in combat, is claiming stressors not related to combat, his lay testimony alone is not enough to establish that the stressors actually occurred. West (Carleton) v. Brown, 7 Vet.App. 70, 76 (1994); see also, Zarycki, 6 Vet.App. at 98. The MANUAL M21-1, as recently revised, provides that the required “credible supporting evidence” of a combat stressor “may be obtained from” service records or “other sources.” See Moreau v. Brown, 9 Vet.App. 389 (1996); see also Doran v. Brown, 6 Vet. App. 283 (1994). If the claimed stressor is related to combat, and in the absence of information to the contrary, receipt of certain individual military decorations will be considered evidence of participation in a stressful episode. See MANUAL M21-1, paragraph 11.38(c) (1). In this case, the evidence shows that the veteran did not engage in combat with the enemy. His service records show that his inservice occupation, while in Vietnam, was a helicopter repairman for two months and a supplyman for the remainder of the time. In addition, the veteran did not receive any individual decorations that would enable the Board to conclude that he was involved in combat with the enemy. In making a determination of whether the veteran was engaged in combat, the Board must also consider the veteran’s lay testimony. Cohen, supra at 25. In this case, the veteran, during his personal hearing, testified that, although he was listed as a supplyman, he actually spent much of his time in Vietnam working on guard duty, that he was situated in a combat zone during his entire time in Vietnam, and that he constantly saw injured and deceased servicemen. However, the veteran also testified that he never personally engaged the enemy, never went on any missions, and was never physically wounded while in Vietnam. In regard to his duty as a perimeter guard, he testified that he was never involved in “combat” and never encountered any incident with the enemy. Overall, the Board finds that, based on the service records and veteran’s own testimony, the veteran did not engage in combat while in Vietnam. Because the veteran did not engage in combat, his assertions of inservice stressors, consisting of: (1) the rape of a Vietnamese woman; (2) inter-company racial violence; (3) exposure to drugs and alcohol; (4) witnessing friends injured or deceased; and, (5) unjust punishment for an altercation with an officer, must be corroborated by other evidence. The Board finds that such corroboration is not included in the record. Item (1). The alleged rape is not mentioned in any of the service records or any other documents contained in the record, except for the testimony of the veteran and in a letter to the RO from him. While no U.S. Army and Joint Services Environmental Support Group (ESG) inquiry has been requested on this issue, the Board is of the opinion that such a request would be fruitless, given that the rape of a Vietnamese woman who was “the girlfriend of a soldier of another company” is vague and is not something an ESG inquiry ordinarily is capable of confirming. It is noteworthy that the rape was not recorded anywhere in the 1996 VA examination and, presumably, not mentioned by the veteran at that time. Item (2). The inter-company racial violence, similarly, is not documented by any of the other evidence in the record, including the 1996 VA examination report. Item (3). The exposure to drugs and alcohol is mentioned by the other evidence in the record. While the veteran testified that he used drugs his first night in Vietnam, he states that he had a bad reaction to it which scared him away from drugs for “6-7 months after that.” This is refuted by the other evidence in the record. An August 1971 Article 15 report shows that the veteran was cited for wrongfully possessing a bag of narcotic drugs. A May 1972 statement from the veteran’s platoon sergeant indicates that the veteran used “Speed” and was recommended to a military drug rehabilitation center. It concludes that the veteran admitted that he wanted to get out of the military and “would do anything he could to get out,” and recommends that he be released because “he could introduce good soldiers to bad habits.” A May 1972 military psychiatric report states that the veteran “used drugs throughout his time in Vietnam.” The service records indicate that the veteran was indeed discharged from the military for unsuitability. Overall, although he claims that exposure to drugs was a stressor that caused his PTSD, the veteran’s own testimony is that he did not use drugs for “6-7 months” out of the 11 months he spent in Vietnam. While the other evidence in the record indicates that the veteran did indeed use drugs in Vietnam, these documents support the conclusion that such use was the voluntary choice of the veteran. In Cohen, the requirements for an incident to be considered a stressor were outlined. It stated that, under the American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM)-III-R, the incident must be “outside the range of usual human experience” and be “markedly distressing to almost anyone.” Alternatively, the DSM-IV, which was adopted under regulations which became effective November 7, 1996, and were published in the Federal Register of October 8, 1996 (61 Fed.Reg 52695-52702), requires that the person’s response to a stressor involve intense fear, helplessness, or horror, due to a stressful event which involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. Cohen, supra at 18. Regardless of whether the record shows that the veteran was exposed to drugs, there is no evidence in the record indicating fear, distress, helplessness, or horror from the veteran’s drug use. In addition, drug use is not mentioned in the 1994 VA psychiatric examination report. Item (4). The witnessing of injured and deceased friends is not corroborated by other evidence. The veteran testified in his personal hearing that he often went to funerals for his friends while in service, but stated that he cannot remember any of their names. The Board finds that an ESG would be of no assistence because, without specific information, it could not confirm whether or not the veteran witnessed injured and deceased friends. Item (5). Being unjustly imprisoned for an altercation with an officer is mentioned by other evidence, but refutes, not corroborates, the veteran’s assertions of unjust imprisonment. In his personal hearing, the veteran testified that his first sergeant demanded that he get a haircut and, when the veteran stated that he already had, his sergeant did not believe him and hit him in the back of the head, according to his testimony, with a cup. A letter to the RO from the veteran, dated February 1994, however, states that he was hit with a pistol. The veteran testified that the two of them began to fight and that, as a result, he was placed in jail for a month and a half, including 11 days in a section that held the most violent criminals. In contraposition to the veteran’s assertions, a psychiatric examination report, dated May 1972, states, according to military history provided by the veteran, that the veteran got into a fight with his sergeant after being found asleep while at guard duty. It further records that the veteran received two Article 15 citations for being asleep while at guard duty, that he constantly used drugs in service, and that he was AWOL for a week. The Board notes that the veteran was sent a letter in March 1996, requesting specific information, including dates, places, and description of events that the veteran claims were stressors. In reply, the RO received a handwritten letter mentioning the rape of a Vietnamese woman, the hostile racial atmosphere, and the imprisonment, but no specific details were given. While the VA mental disorders examination report does mention the alleged death and injury of some of the veteran’s comrades, it, by itself, can not be considered corroborative evidence. Moreau v. Brown, 9 Vet.App. 389 (1996). Thus, after review of all the evidence, the Board concludes that there is no corroborating evidence in the record of the veteran’s claimed inservice stressors. As a result, the veteran’s claim for service connection for PTSD fails. c. Nexus Evidence VA regulations require medical evidence of a causal nexus between the veteran’s current symptomatology and the claimed inservice stressors in order for service connection for PTSD to be awarded. 38 C.F.R. § 3.304(f) (1996). Because the Board has denied the veteran’s claim on other grounds, supra, it does not need to address this issue at this time. III. Conclusion Notwithstanding the recent diagnoses of PTSD, the veteran’s available service department records and other evidence in the record do not corroborate the above-cited, alleged stressor incidents, as is required because the Board has determined that the veteran was not engaged in combat while in Vietnam. The Board also finds that the veteran’s acquired psychiatric disorder, diagnosed on his May 1972 psychiatric examination report as “impulsive personality” with “behavior problems,” but with no “psychiatric disease,” cannot be given service connection because it is a personality disorder that is not a disease or injury for compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (1996). Accordingly, the Board concludes that the requirements for service connection for an acquired psychiatric disorder, to include PTSD, have not been satisfied, and, as a result, the veteran’s claim must be denied. ORDER The veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the (CONTINUED ON NEXT PAGE) decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -