Citation Nr: 0209278 Decision Date: 08/07/02 Archive Date: 08/12/02 DOCKET NO. 99-14 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrew E. Betourney, Counsel INTRODUCTION The veteran served on active duty from July 1945 to November 1948. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1999 rating decision by the Department of Veterans Affairs (VA) Medical and Regional Office Center (M&ROC) in Wichita, Kansas, which denied the veteran's claim for service connection for PTSD. The veteran filed a timely appeal to this adverse determination. FINDINGS OF FACT 1. There has been compliance with the duty to assist and duty to notify provisions of the Veterans Claims Assistance Act of 2000. 2. The veteran has been diagnosed with PTSD. 3. The veteran did not engage in combat with the enemy. 4. There is no credible evidence that confirms the veteran's claimed inservice stressors. CONCLUSION OF LAW PTSD was neither incurred in nor aggravated by the veteran's active duty military service. 38 U.S.C.A. §§ 1110, 5100, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.304(f) (2001), 3.304(f)(3) (effective March 7, 2002); 66 Fed. Reg. 45630-32 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159). REASONS AND BASES FOR FINDINGS AND CONCLUSION On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126), which applies to all pending claims for VA benefits, and which provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his or her claim for benefits under the laws administered by VA. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. See VCAA, supra, see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Among its other provisions, this law redefines the obligation of VA with respect to the duty to assist. See 38 U.S.C.A. § 5103A (West Supp. 2001); see also 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.159). In addition, while this matter was pending before the Board, the United States Court of Appeals for the Federal Circuit decided Bernklau v. Principi, No. 00-7122 (Fed. Cir. May 20, 2002); See also Dyment v. Principi, No. 00-7075 (Fed. Cir. April 24, 2002). In Bernklau, the Federal Circuit held that Section 3A of the VCAA (covering the duty to notify and duty to assist provisions of the VCAA) was not retroactively applicable to decisions of the Board entered before the effective date of the VCAA (Nov. 9, 2000). In reaching this determination, the Federal Circuit appears to reason that the VCAA may not apply to claims or appeals pending on the date of enactment of the VCAA. However, the Federal Circuit stated that it was not reaching that question. The Board notes that VAOPGCPREC 11-2000 (Nov. 27, 2000) appears to hold that the VCAA is retroactively applicable to claims pending on the date of enactment. Further, the regulations issued to implement the VCAA are to be applicable to "any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). Precedent opinions of the chief legal officer of the Department and regulations of the Department are binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991). For purposes of this determination, the Board will assume that the VCAA is applicable to claims or appeals pending on the date of enactment of the VCAA. Among its other provisions, the VCAA redefines the obligation of VA with respect to the duty to assist. See 38 U.S.C.A. § 5103A (West Supp. 2001). First, VA has a duty to notify the veteran and his representative of any information and evidence necessary to substantiate and complete a claim for VA benefits. See 38 U.S.C.A. §§ 5102 and 5103 (West Supp. 2001). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate his claim. See 38 U.S.C.A. § 5103A (West Supp. 2001). VA issued regulations to implement the VCAA in August 2001. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The amendments became effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a) that became effective August 29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. In the present case, the Board concludes that VA's redefined duty to assist has been fulfilled to the extent practicable. The Board finds that the veteran was provided adequate notice as to the evidence needed to substantiate his service connection claim, as well as notice of the specific legal criteria necessary to substantiate his claim. The Board concludes that discussions as contained in the initial rating decision dated in March 1999, in the statement of the case (SOC) issued in June 1999, in the supplemental statements of the case (SSOCs) issued in July 1999, May 2000, January 2001, and April 2002, and in correspondence to the veteran have provided him with sufficient information regarding the applicable regulations regarding the evidence necessary to substantiate his claim. Furthermore, the Board observes that in a lengthy letter to the veteran dated in July 2001, the RO provided the veteran with detailed information about the new rights provided under the VCAA, including the furnishing of forms and notice of incomplete applications under 38 U.S.C.A. § 5102, providing notice to claimants of required information and evidence under 38 U.S.C.A. § 5103, and the duty to assist claimants under 38 U.S.C.A. § 5103A. The RO described the evidence needed to establish the veteran's claim, and specifically identified what evidence was needed from the veteran versus what evidence VA would attempt to procure. The Board finds, therefore, that such documents are in compliance with the VA's revised notice requirements. The veteran and his representative further plainly show through their statements and submissions of evidence that they understand the nature of the evidence needed to substantiate the veteran's claim. As the RO has completely developed the record, the requirement that the RO explain the respective responsibility of VA and the veteran to provide evidence is moot. The Board concludes that VA does not have any further outstanding duty to inform the veteran that any additional information or evidence is needed. The Board also finds that to the extent practicable at this time, all relevant facts have been properly developed with respect to the service connection issue on appeal, and that all relevant evidence necessary for an equitable resolution of this issue has been identified and obtained. The evidence of record includes the veteran's service medical records, service personnel records, post-service VA treatment notes and hospitalization reports, VA examinations, VA medical statements, and several personal statements made by the veteran in support of his claim. The record also includes a recent VA mental health clinic note, as well as several medical statements relating the veteran's current PTSD to his claimed inservice stressors, thus indicating that an opinion by a VA physician regarding the etiology of the claimed PTSD is not required. The RO has obtained all pertinent records regarding the issue on appeal and has effectively notified the veteran of the evidence required to substantiate his claim. The Board is not aware of any additional relevant evidence that is available in connection with this appeal, and concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the veteran's claim. Therefore, no further assistance to the veteran regarding the development of evidence is required, and would otherwise be unproductive. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burden on VA with no benefit flowing to the veteran are to be avoided.) In light of the foregoing, the Board finds that under the circumstances of this case, VA has made reasonable efforts to assist the veteran in attempting to substantiate his claim and that additional assistance is not required. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 66 Fed. Reg. 45,620 (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular injury or disease resulting in a current disability was incurred in or aggravated coincident with service in the Armed Forces. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2001); 38 C.F.R. § 3.303(a) (2001). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2001); a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor actually occurred. A review of the veteran's claims file reveals only two items of medical evidence that address the presence of PTSD. The first such piece of evidence is a VA mental health clinic note dated in May 1998. At that time, the veteran reported having been blown up in an explosion while stationed at the Oakland Naval Station during firefighting training in 1946. He reported that this explosion resulted in ruptured eardrums and mastoiditis. Following a mental status examination, the examiner rendered a diagnosis of PTSD, chronic, severe. The second such piece of evidence is a statement dated in August 2000 by a VA social worker and PTSD coordinator, co- signed by two VA psychiatrists. In this statement, the social worker indicated that she had been asked to review the veteran's file and to comment on how he got his diagnosis of PTSD. She indicated that the veteran's initial intake report showed that "he suffered an attempted rape by three men whom he beat up and was placed in jail for three days. He felt that California law protected the group. This incident for a man would be a major trauma as 'men are supposed to be able to take care of themselves.' Yet he was the one punished for doing so." The second reported traumatic incident consisted of the veteran's having been in an explosion while he was in firefighting school, which blew a hole in his eardrum. The social worked stated that "Fighting a fire and experiencing such and incident would also qualify as a stressor or trauma to cause his symptoms of PTSD. I believe that his daily records from his unit...verifies this incident." The Board notes that in a statement dated in July 2001, the veteran reported that this explosion occurred on May 14th, 15th, or 16th, 1946, during firefighting training, at which time an old fighter plane had been placed on drums and intentionally set ablaze for the firefighters to use in practice. He reported that he was standing on the wing of the plane when the plane blew up, throwing him to the ground, knocking him out, and severely injuring him. He indicated that his right ear began bleeding after this incident. He also stated that the other stressful incident occurred in March 1947, when he was walking in downtown Oakland, California, at which time three men grabbed him and told him what they were going to do to him. He reported that he fought them off and ran away, and was chased by these men until he ran into a policeman, who arrested him and took him to the shore patrol on base. He stated that he stood Captain's Mast, was found guilty of beating up these men, and was confined to the ships brig for 48 hours as punishment. As the veteran's claims file contains diagnoses of PTSD which have been linked by medical examiners to the veteran's claimed inservice stressors, the Board's analysis must turn to the remaining issue of whether the record contains credible supporting evidence that the veteran's claimed inservice stressors themselves actually occurred. Evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran was engaged in combat with the enemy. Where it is determined, through recognized military citations or other supportive evidence, 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 inservice stressor. 38 C.F.R. § 3.304(f) (as amended by 64 Fed. Reg. 32,807-32808 (1999)) (effective March 7, 1997) (implementing the decision in Cohen v. Brown, 10 Vet. App. 128 (1997)). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans). However, where the veteran did not engage in combat or the claimed stressor is non combat-related, the record must contain service records which corroborate the veteran's testimony as to the occurrence of the claimed stressor. Id.; Zarycki v. Brown, 6 Vet. App 91, 98 (1993). A review of the official military documentation contained in the veteran's claims file reveals no evidence that the veteran was engaged in combat with the enemy, as contemplated by VA regulations. In this context, the Board observes that the veteran commenced his active duty on July 30, 1945. This was over two months after the well-known surrender of Germany; Japan's surrender followed on August 15. The veteran's Notice of Separation from U.S. Naval Service does not reflect that veteran received any decorations or medals which indicate involvement in combat. Furthermore, his military occupational specialty (MOS) was listed as "aviation structural mechanic," which is not a specialty which is, on its face, indicative of a combat role. Moreover, the veteran's service records, including his personnel records, do not otherwise contain any entries that show that he received any decorations or performed any specific details that would have placed him in combat situations. See Gaines v. West, 11 Vet. App. 353, 358-60 (1998). Accordingly, in view of the absence of any official evidence that the veteran participated in action against an enemy, the Board finds that he did not "engage in combat," and the evidentiary presumption of 38 U.S.C.A. § 1154(b) does not apply. Therefore, as the veteran has not been shown to have been engaged in combat with the enemy, any alleged inservice stressors must be verified, i.e., corroborated by credible supporting evidence. Furthermore, the Board notes that the veteran's principal claimed stressors, the inservice shipboard explosion in May 1946 and the attempted rape in March 1947, are not claimed to be combat-related stressors, and, therefore, would in any case generally require evidence which corroborates the occurrence of these claimed stressors. In this regard, the Board observes that, during the pendency of the veteran's appeal, the Court issued a decision in Patton v. West, in which it noted that in the particular case of claims of PTSD due to a personal assault, VA has established special procedures for evidentiary development. Patton v. West, 12 Vet. App. 272, 277 (1999). These procedures, which became effective in February 1996, take into account the fact that since personal assault is an extremely sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in- service trauma may find it difficult to produce evidence to support the occurrence of the stressor. These procedures thus acknowledge the difficulty veterans face in establishing the occurrence of the stressor through standard evidence, and the need for development of alternate sources of evidence. See VA Adjudication Procedure Manual M21-1 (hereinafter Manual M21-1), Part III, paragraph 5.14c (Feb. 20, 1996) (substantially enlarging on the former Manual M21-1, Part III, paragraph 7.47c(2) (Oct. 11, 1995)). Alternate sources that may provide credible evidence of an in-service personal assault include medical or counseling treatment records following the incident, military or civilian police reports, reports from crisis intervention or other emergency centers, statements from confidants or family, copies of diaries or journals, or behavior changes documented or observed at the time of the incident, such as obsessive behavior at the time of the incident, pregnancy tests, increased interest in test for sexually transmitted diseases, termination of primary relationships, or alcohol and drug abuse. Evidence that documents any such behavioral changes may require interpretation by a VA neuropsychiatric physician to determine whether such evidence bears a relationship to the medical diagnoses. See M21-1, Part III, para. 5.14(c)(9). Furthermore, these provisions recognize that the standard PTSD stressor letter may be inappropriate for this type of PTSD claim, and thus state that if the claimed stressful incident is a personal assault, a stressor development letter specifically tailored for personal assault cases should be sent to such veterans. See M21-1, Part III, para. 5.14(c)(6). In this case, the Board notes that the veteran's claims file does not reflect that such a letter was sent to the veteran. However, the Board finds that, for several reasons, such a letter is not required in this particular case. First, the veteran has stated that he was not actually assaulted, but rather that he "beat up" three men who were threatening to assault him. As such, it is not clear that the incident as reported by the veteran is a "personal assault" as contemplated by VA regulations, such that the provisions cited above would apply. Second, as noted above, the rationale behind the requirement that a specific personal assault development letter be provided is that since personal assault is an extremely sensitive issue, many incidents of personal assault are not officially reported. However, in this case, the veteran has stated that he did report the incident to authorities - first to a police officer, and then to his military superiors, and, indeed, was officially sanctioned for his actions during the incident. Third, many of the "alternate sources" of evidence which would be requested in such a letter, including "military or civilian police reports," are already of record, and several other sources, such as pregnancy tests and increased interest in tests for sexually transmitted diseases, are clearly not applicable. Finally, the Board notes that in an effort to assist the veteran in developing his claim, the RO sent the veteran a PTSD questionnaire in December 1999 requesting information on all events that occurred which he believed led to his PTSD. In response, the veteran reported only the onboard explosion in May 1946 - and the accompanying stress from being hospitalized as a result of his ear injuries - as the sole stressor. Turning to the issue of whether the veteran's claimed stressors have been verified, the Board finds that neither of the veteran's claimed stressors are supported by the evidence of record. Regarding the claimed explosion in May 1946, the veteran's service medical records indicate that on May 15, 1946, the veteran was treated at the U.S. Naval Air Station at Oakland, California for chronic otitis media. At that time, the veteran stated that two days earlier, he began having profuse purulent discharge from the right ear and an earache. He gave a history of chronic otitis media since childhood, with an average of four to six attacks of earache with purulent discharge per year. He indicated that exposure to cold air and swimming would consistently bring on an acute exacerbation. He also stated that since entering the military ten months earlier, he had had four such attacks. The veteran was transferred to the U.S. Naval Hospital in Oakland, California for treatment "in light of long history of ear disease." The report from the Oakland U.S. Naval Hospital, dated May 17, 1946, indicates that the veteran had suffered from a chronically draining right ear since age seven. The veteran reported that he experienced acute flare-ups when exposed to drafts, cold winds, or dusty winds, and when swimming. The examiner noted that the most recent episode had occurred four days earlier "when he was working in dusty winds." Examination revealed a thickened right eardrum with a small perforation located centrally. Several subsequent treatment notes indicate that the veteran had had several flare-ups of his right ear disorder in service, including the May 1946 flare-up. However, none of these records indicates that the May 1946 flare up was due to an explosion. On the contrary, the veteran's service medical records consistently indicate that the veteran's May 1946 ear problems stemmed from exposure to dusty winds, which caused a flare-up of the veteran's chronic right ear disorder. Similarly, none of the veteran's other service medical records or service personnel records, which have been thoroughly reviewed, indicate that the veteran was involved in an explosion, much less that he was knocked unconscious and suffered a perforated eardrum as a result. Thus, as the Board has found no evidence that corroborates the veteran's report of having been knocked unconscious by an explosion on May 14, 1946 - and, indeed, has found extensive evidence which flatly contradicts this report. The Board concludes that the contemporaneous clinical records prepared at the critical time in question are entitled to vastly greater probative weight than the evidentiary assertion based upon recollection literally decades after the event. The Board finds that the veteran's first claimed stressor is not verified. Indeed, the Board must conclude that the contemporaneous record refutes the account of this alleged event. Similarly, the Board finds that the veteran's account of having been threatened by three civilians, having beaten them up, and then having received a Captain's Mast (nonjudicial punishment) of three days in a brig in March 1947 as a result of this incident is unverified. A thorough review of the veteran's service personnel records, which appear to be complete, does not indicate that the veteran ever served time in the ship's brig. Interestingly, the veteran's service personnel records do indicate that on March 4, 1947, the veteran received a Captain's Mast for the offense of disobedience of orders of a senior petty officer and failure to carry out assigned work duties. No mention was made of any fight between the veteran and others, and the punishment assigned was 40 hours of extra duty. Therefore, while this evidence supports a finding that the veteran received a Captain's Mast in March 1947, neither this evidence nor any other evidence of record corroborates the veteran's account of the incident with three attackers, or the punishment he allegedly received. Once again, the Board finds that the contemporaneous evidence is entitled to far more weight than the evidentiary assertion based upon recollection of events decades in the past. Thus, the Board finds that, absent sufficient evidence which corroborates the veteran's stressor incidents, service connection for PTSD based on these incidents must be denied. In reaching this decision the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for post-traumatic stress disorder is denied. Richard B. Frank 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.