Citation Nr: 0015373 Decision Date: 06/09/00 Archive Date: 06/15/00 DOCKET NO. 94-18 070 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability other than PSTD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from October 1945 to January 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1994 rating decision by the RO. The veteran testified at a hearing at the RO in October 1994. Previously, this case was before the Board in March 1996 when it was remanded for additional development. FINDINGS OF FACT 1. The veteran did not participate in combat. 2. The veteran's alleged in-service stressors have not been corroborated; consequently, the veteran's diagnosis of PTSD is not attributable to his period of military service. 3. No competent medical evidence has been presented to show that any psychiatric disability other than PTSD began during military service or is otherwise attributable to the veteran's period of military service. CONCLUSIONS OF LAW 1. The veteran does not have PTSD that is the result of disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1999). 2. The claim of service connection for an acquired psychiatric disability other than PSTD is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom, Epps v. West, 118 S. Ct. 2348 (1998). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. 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 by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that competent evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability, competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service, and competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d at 1468. PTSD The veteran claims that he has PTSD as a result of stressful events he experienced while assigned to a Nazi concentration camp, Dachau, where he had helped released prisoners. His claims folder contains a January 1994 VA opinion and April 1994 VA report that reflect a diagnosis of PTSD and which indicate that PTSD is related to in-service stressors. Under these circumstances, the claim of entitlement to service connection for PTSD is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); Cohen (Douglas) v. Brown, 10 Vet. App. 128, 136-37 (1997). Establishing service connection for PTSD requires that there must be medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (1999); 64 Fed. Reg. 32,807-32,808 (1999). The stressor may be the result of either combat or non-combat experience(s). Where it is determined that the veteran was engaged in combat with the enemy and the claimed stressor is related to such combat, the veteran's lay testimony regarding the claimed stressor is accepted as conclusive as to its actual existence absent clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); 64 Fed. Reg. 32,807-32,808 (1999). Where, however, VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is not related to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the veteran's testimony as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f); Cohen (Douglas), 10 Vet. App. at 128. A January 1994 VA treating psychiatrist indicated that the veteran had been under his care since July 1993. The psychiatrist indicated that the veteran's working diagnoses included PSTD. The psychiatrist opined that it was evident, after having worked with the veteran for six months, that the veteran's experiences while being with American military forces, liberating the Nazi concentration camp of Dachau had been both traumatic and outside the realm of human experience. It was noted that the veteran had vivid recollections of dying camp residents, many corpses, and a specific traumatic memory of holding the head of a decapitated American captain in a glass jar. An April 1994 VA report indicates that, in March 1994, the veteran was seen for psychological assessment on three occasions, and that the April 1994 VA report was based on the veteran's self reported history and various psychological tests. It was noted that the veteran had reported being involved in the liberation of prisoners at Dachau for three weeks. He reported no exposure to combat. He reported that he found it particularly traumatic when seeing prisoners digging up dead bodies of those who were exterminated at Dachau. He reported seeing a prisoner rake up a skull. He stated that he was required personally to move at least 25 lampshades made of the tattooed skins of exterminated prisoners. He reported that he and another soldier moved a laboratory jar containing the severed head of an American captain. He reported that the remaining prisoners at Dachau were starving. He noted that he had observed three inebriated American soldiers raping a young German girl and that he had tried to stop them without success. PTSD was diagnosed. It appears that the April 1994 examiners accepted the description of the veteran's stressors as being sufficient to produce PTSD. As noted above, a diagnosis of PTSD has been provided. Additionally, the diagnosis has been linked to claimed in- service stressors. However, the second requirement necessary for a grant of service connection for PTSD is credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). As noted above, if the claimed stressor is not related to combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the veteran's statement as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f) (1999). The Court has also noted that the occurrence of in-service stressors may be corroborated by service records as well as other sources. Cohen, 10 Vet. App. at 142. However, an opinion by a mental health professional based on a post- service examination of the veteran cannot be used as credible evidence to establish the occurrence of the stressor. Id. Based on a review of the record, it is the lack of credible supporting evidence regarding the veteran's claimed in- service stressors that causes the Board to find that the preponderance of the evidence is against the veteran's claim. In the veteran's case, there is no confirming evidence, including decorations, that he served in combat. The veteran himself reported at a September 1997 VA examination that he had not seen active combat duty. His DD-214 indicates that his military occupational specialty was a clerk typist. His Separation Qualification record indicates that the veteran served at the headquarters of the 9th Infantry Division in Germany, where he performed various clerical and typing duties. Service personnel records show that the veteran arrived in Europe on June 29, 1946, and departed on December 27, 1946. Nevertheless, since these records do not contain evidence that the veteran was engaged in combat with the enemy, there must be corroborative evidence of the claimed in-service stressors. See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f); Cohen (Douglas), 10 Vet. App. at 138. In March 1996, the RO asked the veteran to provide specific information concerning the stressful events that he allegedly experienced. In May 1996, the veteran submitted information regarding the alleged stressful incidents. In July 1996, the RO referred the veteran's information to the U.S. Armed Services Center for Research of Unit Records (USASCRUR) (previously known as the U.S. Army and Joint Services Environmental Support Group), for the purpose of verifying the occurrence of the alleged in-service stressors. A response from USASCRUR, in August 1997 included the Report of Operations for 1946, submitted by the Headquarters of the 9th Infantry Division, the veteran's stated unit of assignment. These reports, however, do not tend to corroborate the any of the veteran's stressors. While it did verify, by the veteran's WD-AGO 53-55, that he was a clerk typist assigned to an infantry unit during his World War II tour, USASCRUR was unable to verify that the veteran was assigned to the Dachau concentration camp for clean-up duties. At a September 1997 VA PTSD examination, the veteran denied having seen active combat duty. The veteran reported that he was a member of the 9th Infantry and was to be attached to the Inspector General's (IG) unit; however, he had to wait for three weeks or more until a place opened up for him in that IG unit. During those three weeks, he reported that he was involved in cleaning up the concentration camp, and that it was during this three-week period when he had sustained psychological trauma. He reported that he saw the decapitated head of an American captain on display in a jar. He reported being exposed to lampshades that were made from the skin of dead concentration camp prisoners. He stated that he saw human hair that was used to stuff mattresses, prisoners who were emaciated and cachectic, and multiple dead bodies stacked on top of each other. PTSD was diagnosed. It appears, as before, that the September 1997 VA examiner accepted the veteran's statements with respect to stressful experiences as true. In April 1999, the RO informed the veteran that USASCRUR's report could not verify that he was assigned to Dachau. The RO asked the veteran to provide statements from persons with whom he had served who might have known of his visits to Dachau. In April 1999, the veteran informed the RO that he had sent correspondence in 1994 to three people who served with him in Germany but that he had received no responses. In July 1999, the RO informed the veteran that another VA examination was being scheduled in light of the fact that the last PTSD diagnosis was based upon the veteran being temporarily assigned to Dachau during a three-week period and that USASCRUR was unable to verify such assignment. The RO also informed the veteran that the private physicians he had identified as treating him on or about 1955 to 1957, 1977 to 1978, 1991 to 1993, and 1974 to 1990 did not reply to the RO's request for treatment records. The RO also requested additional information from the veteran for purposes of locating two other private physicians. In August 1999, the veteran submitted information in response to the RO's July 1999 letter. When the veteran was scheduled for a VA examination in August 1999, the RO included instructions to the VA examiner. The RO explained in these instructions that the veteran had been diagnosed with PTSD by VA in January 1994 and in September 1997 on the basis of stressors that had not been verified. The RO indicated that USASCRUR could not verify that the veteran was assigned for three weeks to Dachau for clean-up duties. The RO noted that the veteran's military records verified that he had arrived in Europe on June 29, 1946, and left Europe on December 27, 1946. Based on the veteran's information, the RO noted that it would not be speculative to assume that the veteran would have visited the camp while in Germany and that he saw one of the pictures of dead bodies, and that the veteran's experience of seeing hungry children and families would appear to be true. The RO further indicated that the veteran had recalled the hardships he had endured on a three-day train ride into Germany and while waiting in France for three weeks before returning to the United States. When examined by VA in August 1999, the examiner noted the veteran's history of being assigned to a unit in Europe between June 29 and December 27, 1946. At the examination, the veteran and his wife reported that, while at Dachau, he witnessed a severed head in a bottle, saw dogs held on chains, saw the ovens that had incinerated humans, saw lampshades made of human skin, saw stacked dead bodies, and saw electric chairs. It was noted that the veteran's detailed descriptions indicated that he was exposed to traumatic events where he witnessed events that involved the threat of physical integrity to others, and his response involved sincere helplessness and horror. The examiner noted that the veteran, therefore, satisfied criterion A for PTSD and that his description of these events indicate that these events were not fabricated. The diagnoses included PTSD, dementia, and major depression. In October 1999, the RO returned to the claims folder to the August 1999 VA examiner to determine whether a diagnosis of PTSD could be made based upon only those stressors for which there was credible supporting evidence. In a December 1999 addendum to the August 1999 examination report, a VA examiner opined that the tragic events described by the veteran could not be verified by the veteran or his wife with tangible evidence. The examiner noted that the verified stressors would not be of sufficient magnitude to produce a full PTSD syndrome. It was opined that, because the veteran did not meet criterion A for PTSD, this diagnosis should be deleted from the report and replaced with the diagnosis of anxiety disorder. The examiner noted that the veteran met criteria B, C, and D, and had had some stress- induced anxiety responses as described in the report, qualifying the veteran for this diagnosis. Although the record contains a diagnosis of PTSD, this diagnosis is based on the veteran's subjective report of service experiences, which have not been corroborated. Because of the lack of corroboration of any in-service experience on which a diagnosis of PTSD was based, and the absence of information to support a claim of combat experience, the Board finds that there is a lack of credible supporting evidence of the claimed in-service stressors. The Court has held that the Board is not required to grant service connection for PSTD solely on the basis that a physician or other health professional has accepted as credible an appellant's description of his experiences and diagnosed the appellant with PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Medical statements accepting a veteran's report as credible and relating PTSD to events experienced in service do not constitute the requisite credible supporting evidence of a stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Therefore, the January 1994, April 1994, and September 1997 diagnoses of PTSD may not serve as evidence to establish that the alleged experiences actually occurred. The Board has considered book reviews about concentration camp survivors and excerpts from a book about Dachau submitted by the veteran. The Board has also considered the veteran's October 1994 RO testimony and written statements as well as numerous lay statements submitted from the veteran's wife, brother, sister-in-law, and friends in support of his PTSD claim. However, while they are competent to provide information regarding the symptoms the veteran currently experiences and has experienced since military service, there is no indication that they are competent to comment upon etiology or time of onset of any diagnosed PTSD. See Layno, 6 Vet. App. at 470; Grottveit, 5 Vet. App. at 92-93; Espiritu, 2 Vet. App. at 494-95. Given the lack of credible supporting evidence as required by 38 C.F.R. § 3.304(f), the Board finds that the greater weight of the evidence is against the veteran's claim of service connection for PTSD. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991). Other Psychiatric Disability Based on a review of the evidence, the Board finds that the veteran's claim of service connection for an acquired psychiatric disability other than PSTD is not well grounded. 38 U.S.C.A. § 1110, 1131, 5107; 38 C.F.R. § 3.303. Initially, the Board notes that, with the exception of the veteran's January 1947 separation examination report, which shows that physical examination revealed no psychiatric diagnosis, his remaining service medical records are missing. Correspondence from the National Personnel Records Center (NPRC), dated in August 1993 and July 1996, reflects that the veteran's service medical records were likely destroyed in a 1973 fire. The Court has held that where "service medical records are presumed destroyed . . . the [Board's] obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA also has a heightened duty to assist the veteran in the development of evidence favorable to his claim. Nevertheless, the absence of service medical records does not lower the legal standard for proving a service connection claim. Rather, it increases the Board's duty to consider the evidence (and the benefit- of-the-doubt rule, if applicable). Post-service private treatment reports do not indicate that the veteran had a psychiatric disability until 1986, which is nearly 39 years after separation from service. A September 1991 private psychiatric evaluation report indicates that the veteran had been depressed since 1986 after a work-related injury left him unable to continue employment. The provisional diagnosis was psychotic depression. Private correspondence and treatment records show that, in March 1993, adjustment disorder with depression was diagnosed. The physician noted that, when the veteran was examined in March 1993, he gave a history of sustaining a back injury in February 1993. It was noted that, since that injury, the veteran had become withdrawn, worrisome, and depressed. The physician noted that the veteran's adjustment disorder was thought to have been caused by the February 1993 back injury. The physician also noted that, in 1988, the veteran had had a similar emotional reaction to physical injury. VA outpatient and examination reports show that the veteran was found to have major depression since July 1993. When examined by VA in August 1993, the diagnoses included anxiety disorder (not otherwise specified (NOS)), obsessive compulsive disorder, and depressive disorder. In July 1995, the impression was depression with psychotic features. In February 1996, the impressions included dementia. At a September 1997 VA examination, the diagnoses included severe, recurrent major depression with psychotic features, and anxiety disorder, NOS. At an August 1999 examination, the diagnoses included dementia due to unknown etiology, and recurrent major depression in remission. As noted above, the veteran must present competent medical evidence of both currently disability and relationship between that disability and service. Although the record shows that the veteran was found to have a psychiatric disability since at least 1986, and has been treated since then for psychiatric disabilities other than PTSD, none of the examiners, VA or private, has related a psychiatric disability other than PTSD to service. In fact, a September 1991 private psychiatric evaluation report indicates that the veteran had been depressed since 1986 after a work-related injury left him unable to continue employment. Moreover, a private physician in March 1993, noted that the veteran's adjustment disorder with depression was due to a back injury sustained in February 1993. In short, no competent medical evidence has been presented to show that the veteran currently experiences an acquired psychiatric disability other than PTSD that is attributable to his period of active military service. The Board has considered the veteran's written statements and numerous lay statements regarding the onset of an acquired psychiatric disability. However, while they are competent to provide information regarding the symptoms the veteran currently experiences and has experienced since his separation from military service, there is no indication that they are competent to comment upon etiology or time of onset of a currently diagnosed psychiatric disability. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu, 2 Vet. App. at 494- 95. Consequently, absent the presentation of competent medical evidence showing a link between any current psychiatric disability other than PTSD and service, or between continued symptoms since service and current disability, the veteran's claim of service connection for an acquired psychiatric disability other than PTSD may not be considered well grounded and must be denied. (The statutory presumption of 38 C.F.R. § 3.307 does not aid the veteran because there is no basis in the evidence for finding that a psychosis was manifested during the one-year presumptive period following the veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309.) The Board also notes that it has been contended on the appellant's behalf that the Board should determine whether the RO complied with M21-1, Part III, 1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). The provisions of M21-1 Part VI, 2.10(f) provide that "the duty to assist will prevail while development is undertaken." A careful reading of this provision clearly shows the initiation of this "development" is predicated on the claim being "potentially plausible on a factual basis." Essentially, "potentially plausible on a factual basis" means the claim is well grounded. Epps, supra. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the appellant has presented a well-grounded claim. As the appellant has not done so here, M21-1 Part VI, 2.10(f) is not applicable to his case. M21-1 Part III, 1.03(a) provides that "[b]efore a decision is made about a claim being well-grounded, it will be fully developed." However, only when a claim is well grounded does VA have an obligation to assist the claimant in "developing the facts pertinent to the claim." Robinette v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) (referring to evidentiary development required by the duty to assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development referred to in 38 U.S.C.A. § 5107(a), the provisions of M21-1, Part III, 1.03(a) refer to development of the claim. The requirement to fully develop a claim - as compared to development of the evidence underlying the claim - merely demands that VA ensure that the appellant has not filed a defective or incomplete application. See 38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78. See 38 C.F.R. §§ 3.1(p), 3.160(a) (defining a claim as an application for VA benefits); see also M21-1, Part III, 1.01(a) (discussing development of pertinent facts "concerning a well-grounded claim"); M21-1, Part VI, 2.10(f) (discussed, supra); compare M21-1, Part III, 2.01(c) (during initial screening stage of claims processing, the RO shall review all applications and evidence immediately to determine if "a claim" is incomplete and requires "further development"). Indeed, M21-1, Part III, 1.03(a) relies upon Grottveit, supra, in which the Court stated that, "[i]f the claim is not well grounded, the claimant cannot invoke the VA's duty to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] development of the claim." Grottveit, 5 Vet. App. at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until an appellant has submitted a well-grounded claim, VA is under no duty to assist the appellant in establishing the evidentiary elements of his claim. Morton v. West, 12 Vet. App. 477 (1999). In other words, the requirement to "fully develop" a claim pursuant to M21-1, Part III, 1.03(a) is not identical to the duty to assist which arises after a well-grounded claim has been submitted; instead, it appears merely to reiterate the duty to inform under 38 U.S.C.A. § 5103. Consequently, ensuring that a claim is "fully developed" under M21-1 Part III, 1.03(a) means that, where the appellant's application for benefits is incomplete, VA shall notify the appellant of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the appellant's application is incomplete, or that he is aware of evidence which would render his service connection claim for an acquired psychiatric disability other than PSTD well grounded, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). ORDER Service connection for PTSD is denied. Service connection for an acquired psychiatric disability other than PSTD is denied. MARK F. HALSEY Member, Board of Veterans' Appeals