Citation Nr: 0306750 Decision Date: 04/08/03 Archive Date: 04/14/03 DOCKET NO. 96-15 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher J. Gearin, Counsel INTRODUCTION The appellant served on active duty from June 1971 to June 1975 in the Air Force and from July 1976 to August 1978 in the Navy. There is no verified service in Vietnam during the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. That rating decision denied the appellant's claim for service connection for PTSD. In December 1996, pursuant to the appellant's change in address, the case was transferred from the RO in Buffalo, New York, to the RO in Nashville, Tennessee. The Board remanded this issue for further development in July 1999, and the case has returned for appellate decision. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The record does not show that the veteran engaged in combat with the enemy. 3. The veteran's alleged in-service stressors have not been verified by official records or corroborated by service records or other credible evidence. 4. The diagnosis of PTSD is not based on a corroborated stressor. CONCLUSION OF LAW PTSD was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.104, 3.303, 3.304, (1996)(2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 As an initial matter, it is observed that there has been a significant change in the law during the pendency of this appeal. 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). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); see Karras v. Derwinski, 1 Vet. App. 308, 312-13 (1991); cf. Dyment v. Principi, 287 F.3d. 1377 (Fed. Cir. 2002) (holding that only section 4 of the VCAA, amending 38 U.S.C. § 5107, was intended to have retroactive effect). The final rule implementing the VCAA was published on August 29, 2001. 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). These regulations, likewise, apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by the VA as of that date, with the exception of certain provisions relating to attempts to reopen claims, not pertinent here. In this case, the Board considers that VA's duties under the VCAA have been fulfilled to the extent possible. Among other things, the VCAA provides that VA must notify the veteran of evidence and information necessary to substantiate his claim and inform him whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West 2002); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(b)); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this regard, the veteran was notified of the information necessary to substantiate his claim, by means of the discussions in the February 1996 statement of the case, the February 1999 and October 2002 supplemental statement of the case, the July 1999 Board remand. Specifically the RO, in the October 2002 supplemental statement of the case, specifically addressed the contents of the VCAA in the context of the veteran's claim. The RO explained its decision with respect to the veteran's claim, and invited the veteran to identify records that could be obtained to support his claims. Under these circumstances, VA has no outstanding duty to inform the veteran that any additional information or evidence is needed. Further, it is observed that VA attempted to inform the veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf. In the letter dated in the October 2002 supplemental statement of the case, the RO asked the veteran to identify records relevant to his claim. The October 2002 supplemental statement of the case letter explicitly set out the various provisions of the VCAA, including what records VA would obtain, and what was the responsibility of the veteran. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 66 Fed. Reg. 45,620, 45,630-31 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(c), (d)). Here, the RO obtained the records of the veteran's treatment at VA, which were the only records the veteran identified as relevant to his claim. The veteran was also examined for VA purposes in connection with this claim, and pertinent medical opinions were obtained addressing the specific question at issue in this appeal. There appears to be no other development left to accomplish, and under the foregoing circumstances, the Board considers the requirements of the VCAA to have been met. II. Legal Criteria: Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2002). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD now requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); 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). Prior to the effective date of 38 C.F.R. § 3.304(f) on June 18, 1999, and at the time the veteran filed his claim for service connection for PTSD, the requirements for service connection for PTSD were: medical evidence establishing a clear diagnosis of the condition; credible supporting evidence that the claimed stressor actually occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1998). Generally, when a law or regulation changes while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). In this case, the Board finds that the new regulation is potentially more beneficial in this veteran's case because it only requires medical evidence of a current diagnosis of PTSD in accordance with DSM-IV, but no longer requires a "clear" diagnosis of PTSD (which could include a diagnosis based on a version of DSM prior to the DSM-IV). The Board finds that the veteran was not prejudiced by not being notified of the change in the regulation. See Bernard v. Brown, 4 Vet. App. 384 (1993). With regard to the claimed stressor involving allegations of personal assault, VA recognizes that veterans claiming service connection for disability due to an in-service personal assault face unique problems documenting their claims. Personal assault is an event of human design that threatens or inflicts harm. Although these incidents are most often thought of as involving female veterans, male veterans may also be involved. These incidents are often violent and may lead to the development of PTSD secondary to personal assault. VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14 (April 30, 1999) (hereinafter M21-1). Because assault is an extremely personal and 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. Therefore, alternative evidence must be sought. The M21-1 includes a sample letter to be sent to the veteran, asking him to provide detail as to any treatment he had received, any family or friends he had communicated with concerning this claimed personal assault, and any law enforcement or medical records pertaining to the alleged assault. M21-1, Part III, 5.14 (April 30, 1999). See also YR v. West, 11 Vet. App. 393 (1998) (5.14 is a substantive rule and the equivalent of a VA regulation). With respect to claims involving personal assault, all available evidence must be carefully evaluated. If the military records do not document that a personal assault occurred, alternative evidence might still establish an in- service stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Examples of behavior changes that might indicate a stressor are (but are not limited to): (a) visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; (b) sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; (c) lay statements indicating increased use or abuse of leave without an apparent reason such as family obligations or family illness; (d) changes in performance and performance evaluations; (e) lay statements describing episodes of depression, panic attacks, or anxiety but no identifiable reasons for the episodes; (f) increased or decreased use of prescription medications; (g) increased use of over-the- counter medications; (h) evidence of substance abuse such as alcohol or drugs; (i) increased disregard for military or civilian authority; (j) obsessive behavior such as overeating or undereating; (k) pregnancy tests around the time of the incident; (l) increased interest in tests for HIV or sexually transmitted diseases; (m) unexplained economic or social behavior changes; (n) treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; and (o) breakup of a primary relationship. M21-1, Part III, 5.14(7). In personal assault claims, secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. M21-1, Part III, 5.14(8). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d),(f) (2001); Doran v. Brown, 6 Vet. App. 283, 289 (1994). However, if it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). III. Analysis The appellant contends, in essence, that he is entitled to service connection for PTSD. Specifically, he claims that a number of stressful incidents he experienced during his active duty service resulted in PTSD. His alleged stressors include: (1) an alleged sexual assault by two of his Sergeants while stationed at Homestead Air Force Base during the fall of 1971; (2) exposure to poisonous snakes while stationed in Thailand in 1972; (3) having had a gun pointed at his head while stationed in Thailand; (4) having witnessed individuals being pushed out of an airborne helicopter; (5) having been subjected to enemy gunfire and mortar attacks; and (6) having been in a bar which was bombed while stationed in Thailand. In this case, there is no objective evidence that the veteran "engaged in combat with the enemy." See VAOPGCPREC 12-99. The veteran's DD Form 214 and service personnel records do not indicate references to combat, but reflects that the veteran was an administration specialist and earned no combat decorations, medals, badges, ribbons, or awards. According to his military occupational specialty was Material Facilities Specialist. For these reasons, the Board finds that the veteran did not engage in combat with the enemy and that the reported stressors are not related to combat. Because the veteran did not engage in combat with the enemy, his lay statements alone are not enough to establish the occurrence of the alleged stressors, to include the description of personal assault in September 1971. VA has been unable to verify the veteran's claimed stressors relating to snakes and other incidents which allegedly occurred while in Thailand or in Vietnam. The veteran has not provided the requested detail regarding these incidents to allow for corroboration. However, the alleged stressor concerning a personal assault at Homestead Air Force Base is not subject to the usual methods of corroboration and the Board has examined this allegation in consideration of the criteria used in an attempt to verify such a stressor. After a review of the evidence, the Board finds that the credible evidence of record does not show that the veteran's alleged stressor of a personal assault in September 1971 actually occurred as required under 38 C.F.R. § 3.304(f). Service medical and personnel records are silent for any complaint of, or treatment for, a personal assault. The Board has specifically considered whether behavior changes occurred at the time of the incident, or soon thereafter, as indicated by the M21-1, which may indicate the occurrence of an in-service stressor. The M21-1 contemplates that visits to a medical clinic without a specific diagnosis or specific ailment is a behavior change occurring at the time of the incident that might indicate a stressor. In this veteran's case, the veteran's service medical records do not show that he sought medical treatment at the time of the alleged rape in 1971. Subsequent, in-service examinations are silent for any complaints, treatment, or diagnoses of a psychiatric disorder or residuals of a personal assault. Additionally, the veteran has indicated that no medical records existed that would document medical treatment during service. Changes in performance and performance evaluations are behavior changes contemplated by M21-1 that might indicate a stressor. The veteran claims that the sexual assault occurred in September 1971. According to his stressor statement, received in May 1997, two Sergeants lured him into their room. They attacked the veteran and threatened to force him to perform oral sex on them. The veteran could not remember the names of his attackers. The veteran recalled that he did not report the incident to the authorities. The veteran remembered that his friend, L.W., contacted the Charge of Quarters (CQ). The CQ asked the veteran to report the incident, but the veteran declined to do so. The veteran recalled that his friends, L.W. (already mentioned) and L.F., protected him. The veteran has not kept in contact with L.W. or L.F., and he does not know where they currently reside. The Board remanded this issue in order to develop more details to support the veteran's claim. The Board informed the veteran in the July 1999 remand that it was vital to the veteran's claim that he provide additional details about the individuals involved, as well as the time, date, and location of the alleged incident. The Board explained what evidence the veteran needed to submit in order to prove his service- connection claim for PTSD, to include as a result of a personal assault. The veteran did not respond to the RO's August 2001 request for additional stressor information. Without this additional information, the RO was unable to develop the case any further. The RO informed the veteran again in the October 2002 supplemental statement of the case that he should provide the requested information, and he did not respond. The United States Court of Appeals for Veterans Claims (Court) has held that "the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Court has also held that the duty to assist is not a blind alley, see Olson v. Principi, 3 Vet. App. 480, 483 (1992), and is not a license for a "fishing expedition" to determine if there might be some unspecified information, such as the police report described by the veteran, which could possibly support a claim. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). In this case the veteran has not fully cooperated with VA subsequent to the Board's July 1999 remand. As a result, the Board finds that, without the veteran's detailed stressor statement, the RO was correct in deciding not to contact the United States Armed Services Center for Research of Unit Records (USASCRUR). USASCRUR requires specific details in order to conduct its research of the military record. USASCRUR is an independent entity and VA has no legal authority over it. Therefore, VA must comply with USASCRUR's policies. Given that the veteran has not provided details with respect to his claimed stressors, the Board finds that the evidence of record is insufficient to supply to USASCRUR because it lacks specificity. Without the veteran's assistance, the Board finds the likely existence of any documentation of the veteran's alleged stressors to be virtually nonexistent, and that additional efforts to obtain such documentation would serve no useful purpose, particularly given the extensive development already undertaken. As such, further delay in the adjudication of the veteran's claim from yet another remand to develop corroborative evidence of the veteran's stressors would not be justified. Therefore, the claim must be decided based upon the evidence of record. The evidence at the time of the incident in September 1971 does not show any changes in performance that would evidence a behavior change. None of the contemporaneous service medical or personnel records show the veteran referring to an assault. The veteran's service personnel records show that he received positive reviews from his superiors. In October 1973, he was promoted to Sergeant. For over two years after the described assault in September 1971, the veteran's service personnel and medical records are negative for abnormality. Beginning in December 1973, the veteran was found guilty of writing bad checks. In January 1974, as punishment, the service demoted him to the grade of Airman First Class. This incident occurred over two years after the veteran's described assault in September 1971. During this time there was no evidence of (a) visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; (b) sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; (c) lay statements indicating increased use or abuse of leave without an apparent reason such as family obligations or family illness; (d) changes in performance and performance evaluations; (e) lay statements describing episodes of depression, panic attacks, or anxiety but no identifiable reasons for the episodes; (f) increased or decreased use of prescription medications; (g) increased use of over-the- counter medications; (h) evidence of substance abuse such as alcohol or drugs; (i) increased disregard for military or civilian authority; (j) obsessive behavior such as overeating or undereating; (k) pregnancy tests around the time of the incident; (l) increased interest in tests for HIV or sexually transmitted diseases; (m) unexplained economic or social behavior changes; (n) treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; and (o) breakup of a primary relationship. The check writing incident did not occur at the time of the incident that reportedly occurred in September 1971. The service records do not mention complaints of an assault, or relate this check writing incident in December 1973 to an assault over two years before. The veteran's December 1974 service separation examination report is negative for psychiatric abnormality. Likewise, the veteran's subsequent July 1976 entrance examination and August 1978 separation examination reports are negative for psychiatric abnormality. Evidence of alcohol abuse is also a behavior change indicated by M21-1 as behavior that might indicate a stressor. In this case, the evidence does not show that the veteran developed alcohol abuse during service or shortly thereafter. Similarly, obsessive behavior is a change contemplated by M21-1 that might indicate a stressor. Although the veteran's service records indicate that he had personality problems with commanding officers during his tour of duty from 1976 to 1978, the contemporaneous service records and subsequent reserve service records do not evidence an obsessive behavior. The first evidence of PTSD was nearly 20 years after discharge from service in 1978. The Board finds that the veteran's recollection regarding this personal assault in September 1971, as well as other significant facts that he reported, are not consistent with the service medical and personnel evidence and other corroborative evidence. The Board notes that the record is devoid of medical or counseling treatment records following the incident, military or civilian police reports, reports from crisis intervention or other emergency centers, or medical or counseling notes to verify the occurrence of the described sexual assault in September 1971. In August 1995, the veteran was referred by a Vet Center readjustment therapist for evaluation. He was given a provisional diagnosis of provisional PTSD. However, a report of a VA examination signed by two physicians shows a diagnosis of dysthymic disorder and personality disorder. Also considered by the Board are the later VA diagnoses of post-traumatic stress disorder, most particularly the conclusion following a May 1997 VA "Post-Traumatic Stress Disorder Examination" that, if the veteran's stressors could be confirmed, the veteran had PTSD that was related to service. It has long been established that the Board is not required to accept doctors' opinions that are based upon the appellant's recitation of medical history, as was the basis for the opinion provided here. See Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Brown, 5 Vet. App. 474 (1993); Swann v. Brown, 5 Vet. App. 229 (1993). The Board finds that the contemporary evidence and statements made by the veteran during service have more probative weight than medical opinions or lay statements made over two decades later. Medical opinions as to a nexus may decline in probative value due to: a lengthy time period between service and the date of the opinion. Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (noting that 20 years had elapsed); Swann v. Brown, 5 Vet. App. 229, 233 (1993). The veteran's discharge examination reports in 1974 and 1978 are negative for PTSD or any psychiatric abnormality. More importantly, the veteran's claimed assault in September 1971 and his other claimed stressors have not been confirmed. Contemporaneous medical findings may be given more weight than a medical opinion coming many years after separation from service. Struck v. Brown, 9 Vet. App. 145, 155-56 (1996) (this opinion was also based on an inaccurate oral history provided by the appellant, and the physician had not reviewed relevant material in claims file). The Board finds that the probative value of the May 1997 VA examination report is negligible due to the complete lack of any information tending to corroborate the veteran's alleged stressors. While the veteran is competent to attest to matters susceptible to lay observation, as a lay person, he is not competent to provide an opinion requiring medical expertise, such as an opinion that he has PTSD that is etiologically related to the stressors that he claimed occurred during service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board finds that the evidence of record is not sufficient to establish that the alleged stressor of a personal assault or any of the other claimed incidents occurred during the veteran's active duty service. Thus, the Board finds that these reported stressors are not supported by the evidence. 38 C.F.R. § 3.102. Accordingly, service connection for PTSD is not warranted. 38 C.F.R. § 3.304(f). (CONTINUED ON NEXT PAGE) ORDER Service connection for PTSD is denied. ____________________________________________ BETTINA S. CALLAWAY Veterans Law Judge, 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.