Citation Nr: 0204628 Decision Date: 05/16/02 Archive Date: 05/24/02 DOCKET NO. 96-00 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia 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 HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD John J. Crowley, Counsel INTRODUCTION The appellant is a veteran who served on active duty from February 1972 to September 1974, with a period of incarceration during this service. This case came before the Board of Veterans' Appeals (Board) on appeal from a February 1995 decision of the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was transferred to the RO in Huntington, West Virginia, when the veteran moved. In April 1997, the Board remanded this case to the RO for additional development. One of the matters the Board must address is which issue or issues are properly before it at this time. Under the provisions of 38 U.S.C.A. § 7105(a) (West 1991), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203 (2001). In April 1997, the Board noted that a VA Form 9 (substantive appeal) submitted by the veteran, dated in October 1995, appeared to constitute a notice of disagreement with a September 1995 rating determination. The RO had not provided a statement of the case with regard to those issues addressed within the September 1995 rating determination. These issues were referred to the RO for further appropriate action. The issues of entitlement to an increased rating for pes planus and entitlement to nonservice-connected pension were subjects of a statement of the case issued in August 1998. A substantive appeal regarding those issues has not been received. In making this determination, the Board has noted a substantive appeal submitted by the veteran in December 2001. However, a review of this substantive appeal indicates that it only addresses the issue of entitlement to service connection for PTSD. It should also be noted that the veteran has been awarded nonservice-connected pension. Nowhere in the December 2001 substantive appeal is the issue pertaining to pes planus mentioned by the veteran. Accordingly, the Board finds that the issues addressed in the August 1998 statement of the case are not before the Board. This determination is consistent with the veteran's testimony before the undersigned in April 2002, in which he made no reference to these issues. FINDINGS OF FACT 1. VA has fulfilled its duty to assist the veteran in the development of all facts pertinent to this claim; all available, relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran did not engage in combat with the enemy. 3. The veteran has provided no meaningful information which can be used as the basis for another attempt to confirm his alleged stressor in service. 4. There is no credible supporting evidence that the veteran was subjected to the claimed stressor event in service. CONCLUSION OF LAW Service connection for PTSD is not warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.304 (2001) and 66 Fed. Reg. 45,620 45,630-32 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background Service medical records, which appear complete, show no treatment for PTSD or PTSD-related symptoms. Medical records associated with the veteran's incarceration in Fort Leavenworth, Kansas, are also part of the veteran's service medical records before the Board. The veteran did undergo an admission summary performed by a social worker in March 1973, during his incarceration. He had been incarcerated for several months prior to this report. He made no reference to a sexual assault during his incarceration. From October 1974 to February 1975, the veteran was hospitalized at a VA Medical Center (VAMC). He was treated for drug abuse and other disorders not at issue herein. Significantly, during this hospitalization he made no mention of being sexually abused in service. In October 1974, the veteran filed a claim seeking service connection for a nervous condition which, he contended, began in 1972. He made no reference to a sexual assault in service. The veteran underwent a VA psychiatric evaluation in July 1975. He made no reference to a sexual assault during service. PTSD was not diagnosed. In a December 1975 administrative determination it was found that the veteran's character of discharge for his period of service from February 1972 to September 1974 was to be considered by VA as under conditions other than dishonorable. In a February 1976 rating determination, the RO denied service connection for a nervous condition. It did not specifically address the matter of service connection for PTSD. The veteran did not appeal that denial. The veteran filed an additional claim for VA compensation in September 1980. Once again, he made no reference to a sexual assault during his active service. Additional outpatient treatment records obtained by the RO during this time did not indicate any difficulties with PTSD or PTSD symptomatology. In October 1994, the veteran filed a claim seeking service connection for PTSD. In December 1994, the RO requested a detailed description of the specific traumatic event that he alleged resulted in his acquiring PTSD. From September to October 1994, the veteran was hospitalized for PTSD. In December 1994, he indicated that he witnessed an individual being stabbed and beaten. He also noted that in July of 1973 he was the victim of an attempted rape. On December 1994 VA psychiatric evaluation, the veteran related that he had been charged with insubordination and unauthorized leave and sentenced to six months of hard labor at Fort Leavenworth, Kansas. He noted no other crimes at that time. He stated that while he was in prison he witnessed and experienced brutality and violence. On three occasions, he saw prisoners attacked with knives. He also indicated that another prisoner beat him after he refused to submit to his sexual advances. The veteran's subjective complaints were noted and an objective evaluation was performed. The diagnosis was depressive disorder with psychotic features and a borderline personality disorder. The examiner concluded that the specific criteria for a diagnosis of PTSD were not met. The RO denied this claim in February 1995, and the veteran appealed this determination to the Board. At a hearing held before the undersigned in February 1997, the veteran reiterated his previous contentions. His representative conceded that service medical records did not reflect any treatment for a condition indicative of physical beatings and/or sexual assaults. It was contended that the veteran was physically as well as sexually abused while incarcerated at Fort Leavenworth, Kansas. A statement from the chief of a VA mental hygiene clinic was to the effect that the veteran had been treated for PTSD for approximately three years. The veteran submitted a January 1997 statement from a person who has known him since the eighth grade. It was indicated that 20 years after the veteran's service (in 1992) the veteran told this person about his experiences of being attacked by inmates during his incarceration. In April 1997, the Board remanded this case to the RO for additional development. In September 1998, at the request of the Board, the RO contacted the veteran and asked him to note any additional medical records pertaining to his psychiatric treatment that may have been provided to him while he was confined at Fort Leavenworth. Additional efforts to obtain records in support of the veteran's case also were initiated by the RO. In October 1998, the National Personnel Records Center, upon request by the RO for additional medical records, indicated that all medical records had been submitted. In December 1998, the RO contacted the US Army Crime Records Center. In a response received at the RO in December 1998, it was indicated that the veteran was incarcerated for wrongful possession of a hypodermic instrument with intent to use, wrongful use of a controlled substance, carrying a concealed weapon, housebreaking, larceny, and forgery. A search of Army criminal file indexes indicated no additional information regarding the veteran. In 1998 and 1999, the RO made extensive efforts to obtain additional records from the Fort Leavenworth prison. Numerous requests for information were submitted. Additional outpatient treatment records were obtained, including a hospitalization report from March 1995 to July 1995. This hospitalization report notes treatment for PTSD, depression, alcohol dependence, and opioid dependence (in remission). During these treatments, there was negligible, if any, reference to an alleged sexual assault in service. A February 2000 medical report indicates treatment for PTSD as a result of experiences in Fort Leavenworth. The veteran reported that while he was in prison, he was assaulted, held down, and there was an attempt to rape him. He indicated he was knocked unconscious, and that someone intervened just before he was penetrated. The diagnoses were PTSD and a personality disorder. In a June 1999 response to the RO's request for information, the Commandant of the United States Disciplinary Barracks at Fort Leavenworth, Kansas, stated that following the veteran's release, his records were retired to the National Personnel Records Center in St. Louis, Missouri, where they were maintained for 25 years and then destroyed. It was indicated that correctional records are no longer available for someone confined in 1973. With regard to the RO's request for information regarding three witnesses (fellow inmates) who came to the veteran's aid during the alleged assault (their names are noted within an August 1999 communication from the RO to Fort Leavenworth), the commandant indicated that he had no information available on the inmates mentioned. In a December 2001 response to a supplemental statement of the case, it was contended that had the Newark RO acted more promptly, records from Fort Leavenworth could have been obtained within 25 years of the veteran's incarceration. In this regard, the Board must note that it has reviewed the veteran's service medical records and it appears that the service medical records are complete. A second hearing was held before the undersigned in April 2002. At that time, it was reaffirmed that the veteran did not serve in Vietnam and had no combat service. He indicated that he was receiving Social Security Disability benefits based solely on the diagnosed disability of PTSD. In April 2002 the Board received information from the veteran regarding his Social Security benefits. The veteran waived RO jurisdictional review under 38 C.F.R. § 20.1304(c). The Social Security determination clearly indicates that the veteran was found disabled due to "anxiety disorders and personality disorders." PTSD was not mentioned. At the hearing, the undersigned noted that the RO in New Jersey had attempted to contact the three witnesses the veteran mentioned at his prior travel board hearing. The veteran was advised that attempts to contact these individuals had failed. In response to the question posed by the undersigned of whether the veteran had heard from these people or contacted them, he responded that it was against the law for him to contact any of these people and as inmates they were not "that kind of friends." The veteran indicated there were no additional records relevant to his claim that the Board or the RO could obtain. He requested a 30-day extension to obtain additional records, which was granted. The veteran provided information regarding his Social Security determination, which has been cited above. No additional records have been submitted. II. The Duty to Assist There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA and implementing regulations eliminate the concept of a well-grounded claim and redefine the obligations of VA with respect to the duty to assist. The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA and implementing regulations apply in the instant case, but the Board finds that the mandates of the new law and regulations are met. The claim has been considered on the merits. Regarding stressor verification, the Board finds that the extensive efforts of the RO to find evidence that would support the veteran's claim fulfill the duty to assist. Efforts to obtain additional medical records or statements from witnesses of the alleged sexual assault have totally failed. The Board has carefully considered the issue of whether it should return this case to the RO in an additional effort to verify the veteran's stressor. However the Board finds no basis for an additional remand. Based on the statements by the veteran, the Board finds that any effort to confirm the alleged stressor in service would fail. The veteran has provided no significant leads for development of evidence that would confirm his alleged stressors. Under the VCAA, the VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. The veteran was afforded opportunities to submit argument on behalf of his claim, which he did (twice directly before the undersigned). The Board finds that VA has done everything reasonably possible to assist the veteran. Discussions in the rating decision, statement of the case, and supplemental statements of the case have informed the veteran of the information and evidence needed to substantiate his claims and complied with VA's notification requirements. The duty to assist is not unlimited in scope. See Smith v. Derwinski, 2 Vet. App. 429, 431, 432 (1992). In Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (citations omitted), the Court stated, in pertinent part: [T]he "duty to assist" is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim. In connection with the search for documents, the duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim. In this case, the RO has made all reasonable efforts to assist the veteran in the development of his claim including, but not limited to, repeated attempts to obtain information that would support the claim. The Board finds that, in light of the extensive and exhaustive efforts already made, further attempts at development would not be justified. III. Analysis Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125; 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. 38 C.F.R. § 3.304(f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to this 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. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The VA regulation was changed in June 1999 to conform to the Court's determination in Cohen v. Brown, 10 Vet. App. 128 (1997). As the Cohen determination and the new regulation were in effect when the RO reviewed this case, the Board finds no prejudice to the veteran in proceeding with this case at this time. The record before the Board demonstrates that PTSD has been diagnosed. Notwithstanding, as stated by the Court, "[j]ust because a physician or other health professional accepted the appellant's description of his active service experiences as credible and diagnosed the appellant as suffering from PTSD does not mean the [Board is] required to grant service connection for post-traumatic stress disorder." Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). It is also clear that the Board is not required to accept an appellant's statements regarding his alleged symptoms, including nightmares, flashbacks, and other difficulties he associates with his active service, if the Board does not find the statements regarding his symptoms to be credible. The starting point for analyzing a claim of service connection for PTSD is a determination whether there is evidence of one or more "stressors." The question of a "stressor" also bears upon credibility determinations, as certain veterans who "engaged in combat with the enemy" gain evidentiary presumptions. 38 C.F.R. § 3.304(d). Under the controlling regulation, there must be credible supporting evidence that the claimed service stressor actually occurred. 38 C.F.R. § 3.304(f). The existence of an event alleged as a "stressor" that results in PTSD, though not the adequacy of the alleged event to cause PTSD, is an adjudicative, not a medical determination. Zarycki v. Brown, 6 Vet. App. 91, 97- 98 (1993). Under the framework established in Zarycki, the Board must make an explicit determination as to whether the veteran engaged in combat with the enemy. In this case, the veteran has conceded that he did not engage in combat with the enemy. The Board has determined that the veteran did not engage in combat with the enemy as defined within 38 U.S.C.A. § 1154(b). As a result, as a matter of law, a medical provider cannot provide supporting evidence that the claimed in-service event actually occurred based on a post-service medical examination. Moreau v. Brown, 9 Vet. App. 389, 395-6 (1996). In addition, the veteran's own testimony will not be sufficient. Id. Other credible supporting evidence from any source must be provided. The veteran has cited his stressors in service. They include the following: (1) Witnessing attacks of fellow inmates by other inmates during his incarceration; (2) The general stress involved in being incarcerated; (3) The alleged sexual assault. In evaluating these alleged stressors, the Board must note that all of these alleged stressors occurred during the veteran's incarceration in Fort Leavenworth. As a result, the Board has considered the issue of whether or not such alleged injuries can be considered to have occurred in the line of duty. The provisions of 38 C.F.R. § 3.1(m) (2001) mandate that the requirements as to line of duty are not met if, at the time that the injury was suffered or disease contracted, the veteran was either (1) avoiding duty by desertion, or absent without leave which materially interfered with the performance of military duty; (2) confined under a sentence of court-martial involving an unremitted dishonorable discharge; or (3) confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court. See also 38 U.S.C.A. § 105 (West 1991) (to the same effect). Willful misconduct means an act involving conscious wrongdoing or known prohibitive action. 38 C.F.R. § 3.1(n). The language of § 3.1(m), by qualifying the type of confinement under a sentence of a court-martial to that which involved an "unremitted dishonorable discharge" strongly implies that confinement as a result of any other reason, such as pretrial confinement or by reason of a court-martial sentence other than one that included an unremitted dishonorable discharge (as in this case), does not prohibit a favorable line-of-duty determination for an injury or disease contracted during the confinement. This is significant because the available records do not show at this time that the veteran received a sentence that included a dishonorable discharge. He has been found by the VA to be discharged under conditions other than dishonorable. Therefore, any trauma experienced by the veteran will be considered as incurred in the line of duty. This does not end the discussion of this case. Upon analyzing the evidence, the Board finds that the veteran has failed to supply "credible" evidence of his alleged inservice stressors. None of his alleged stressors in service is confirmed, and the undersigned can find no basis by such stressors could be confirmed by the VA. The special provisions of VA Adjudication Procedure Manual M21-1 (M21-1), Part III, regarding personal assault have been considered in reaching this determination. M21-1 notes that: "Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking." M21-1, Part III, 5.14c. M21-1 identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1, Part III, 5.14c(4)(a). When there is no indication in the military record that a personal assault occurred, alternative evidence, such as behavior changes that occurred at the time of the incident, might still establish that an in-service stressor incident occurred. Examples of behavior changes that might indicate a stressor include: visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; lay statements indicating increased use or abuse of leave without apparent reason; changes in performance or performance evaluations; lay statements describing episodes of depression, panic attacks or anxiety with no identifiable reasons for the episodes; increased or decreased use of prescription medication; evidence of substance abuse; obsessive behavior such as overeating or undereating; pregnancy tests around the time of the incident (clearly not at issue in the veteran's case); increased interest in tests for HIV or sexually transmitted diseases; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; breakup of a primary relationship. M21-1, Part III, 5.14c(7)(a)-(o). After extensive and careful review of the evidence of record, the Board concludes that there is no credible documented evidence to indicate that the veteran experienced any of the identified behavior changes, or any other unusual behaviors during his active military service. Particularly damaging to the veteran's case are medical records immediately following his discharge from service, which make no reference to the alleged stressors. While there is documentation of drug abuse (one of the above-listed indicators of behavior changes which might evidence an in-service stressor) almost immediately after service, this was not a new behavior. The veteran's incarceration in service was, in part, for possession of drugs/drug paraphernalia. The Board has noted the extensive efforts of the RO to confirm the veteran's alleged stressors, with no results. The Board has reviewed the service medical records and they appear complete. There is absolutely no indication that the veteran underwent treatment for assault or for a psychiatric condition during his incarceration in Leavenworth (as contended). Specific medical records from Leavenworth are contained within the veteran's service medical records and they failed to note any indication of PTSD or PTSD-related symptomatology. Medical records immediately following his discharge from service only support this finding. These facts do not support the claim. The Board is aware of the Court's decision in Patton v. West, 12 Vet. App. 272 (1999). Patton involved an allegation of noncombat personal assault as the alleged stressor with respect to PTSD. The Court noted that certain provisions in VA Manual M21-1 apply to such claims. In this case, however, the Board has specifically determined that every effort to confirm the veteran's alleged stressor in service has been undertaken, with negative results. Also noteworthy are the extensive medical evidence and evidentiary records that fail to support the veteran's alleged stressors in service. Specifically, medical records following the veteran's discharge from active service provide no indication of an alleged sexual assault. The veteran did report the alleged sexual assault to any individual he confided in until decades after his discharge from active service. His own testimony before the undersigned is not entirely consistent with statements he initially made to the VA regarding his psychiatric disability following service. These facts weigh against his claim. A VA psychiatric evaluation in December 1994 found that the criteria necessary for a diagnosis of PTSD were not met. Although PTSD has been diagnosed on other occasions, such diagnoses were based on stressor events that are not confirmed. Consequently, there is no need to resolve the inconsistency in the medical evidence as to whether the constellation of symptoms shown supports a diagnosis of PTSD. To establish entitlement to service connection for PTSD, the veteran must present both medical evidence diagnosing the condition and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Without credible supporting evidence of an in-service stressor, even unequivocal medical evidence that a claimant has all the symptoms needed to establish that he has PTSD would be insufficient to establish service connection for the PTSD, i.e., establish that the PTSD is service related. The preponderance of the evidence is against the claim for service connection for PTSD. Although the veteran is entitled to the benefit of the doubt when the evidence supporting his claim and the evidence against the claim are in equipoise, the benefit of the doubt doctrine is inapplicable where, as here, the overwhelming preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). ORDER Service connection for PTSD is denied. GEORGE R. SENYK Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.