Citation Nr: 0307657 Decision Date: 04/22/03 Archive Date: 04/30/03 DOCKET NO. 98-06 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical & Regional Office Center in White River Junction, Vermont THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Maureen A. Young, Associate Counsel INTRODUCTION The veteran had active military service from July 1974 to July 1977. This matter is before the Board of Veterans Appeals (Board) on appeal from a June 1997 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, in which the veteran's claim of entitlement to service connection for PTSD was denied. A notice of disagreement (NOD) was filed in February 1998 and a statement of the case (SOC) was issued that same month. The veteran perfected an appeal in April 1998. Jurisdiction of his claims file was subsequently transferred to the Medical & Regional Office Center (M&ROC) in White River Junction, Vermont. This matter was previously before the Board in June 1999, March 2000, and March 2001, at which times it was remanded for additional development. By rating decision of October 2002, the M&ROC denied the veteran's claims of entitlement to service connection for a back disorder, depression, and a left shoulder injury. There has been no NOD filed as to these issues and they are not currently before the Board for appellant consideration. FINDINGS OF FACT 1. The medical evidence shows that the veteran has a diagnosis of post-traumatic stress disorder (PTSD). 2. There is no credible supporting evidence of the veteran's alleged in-service stressor(s) so as to support a diagnosis of PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2002); 38 C.F.R. § 3.304 (1996 and 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background Service medical records show that, in February 1977, the veteran reported to sick call and requested to see a psychiatrist. He reported that he was getting highly nervous and unable to cope with everyday problems. In addition, he reported that he had difficulty getting to sleep and had suffered from frequent nightmares. The following day he was seen by a clinical psychologist. The report of the psychologist indicates that the veteran presented with complaints of anxiety, depression, nightmares, and sleepwalking for the previous three months. He had reported that it took him one to two hours to go to sleep after awakening during the night. He disclosed that he drank six cans of beer nightly. The psychologist indicated that basically the veteran desired help in coping with his last month on active duty. Examination revealed that the veteran was not mentally ill. There was no evidence of any psychosis, neurosis, or brain impairment. The clinical impression was of an immature personality disorder that had existed prior to enlistment and was not disqualifying. A March 1977 clinical evaluation, for the purpose of discharge from service, revealed normal neurologic and psychiatric findings. In March 1995, the veteran was seen at a VA facility for emergency services. He reported that since his discharge from service in 1977 he had experienced flash- backs, increased nervousness, alcohol abuse, and infrequent "pot" use. His latest intake of alcohol had been the day before he was seen for medical services. He reported that he had been jumpy lately, and stated that he had flashbacks of his shipmate disappearing at night, overboard. The diagnosis was alcohol dependence. It was noted that further evaluation was needed for PTSD/adjustment disorder. A May 1995 VA outpatient treatment report reveals that the veteran was referred for a medication evaluation. He reported trouble with insomnia, instability, and depression which he related to several incidents while in the Navy. The incidents included routinely being belittled by his commanding officer, being beaten up while on leave five or ten times by officers, and of losing a friend on the ship. He said his friend had disappeared and his body was later found floating in the sea. He reported that he had been unable to succeed at anything since he left the Navy. The listed diagnoses were typical depression, mixed bipolar, substance dependence, personality disorder, generalized anxiety disorder, and PTSD. On further psychological evaluation in 1995, the veteran complained that he was irritable, angry, and had difficulty with sleep and with being "hyper." He also complained of flashbacks or ruminations regarding his friend's death twenty years before. He reported that he had always been "hyper" but his irritability and insomnia had increased since the initiation of a divorce process a year and a half before. He said he had always been a heavy drinker but did not see that as a problem. He reported that his only buddies were members of his motorcycle gang, and he reported that they were concerned about his recent behavior and had convinced him to seek treatment at VA. He further reported that he had been a "heavy drinker" since his early teens. He would drink one- half quart of Jack Daniels and one to two six packs of beer a day. He would also take illegal drugs occasionally to calm himself. The diagnoses under Axis I included adjustment disorder with anxiety - provisional, alcohol dependence, rule-out PTSD, bipolar disorder, substance abuse, substance- induced mood disorder, and personality disorder. The stressors indicated under Axis IV were problems with primary support, divorce, and loss of children, unemployment, and inadequate finances. In June, July, and December 1995 the veteran was seen at VA outpatient clinic with complaints of irritability and trouble falling asleep. He was diagnosed with anxiety disorder, not otherwise specified (NOS). In an August 1995 VA outpatient treatment report it was noted that the veteran reported that he was doing well on Diazepam. He reported that he was much less anxious and that he would have only one beer occasionally. The diagnosis was described as uncertain. The examiner noted that PTSD was certainly in the differential diagnostic consideration. A November 1995 VA outpatient treatment report reveals the veteran reported that he had had a conflict with his girlfriend, who had left, due to his temper. He also reported that he was "running into trouble" with his motorcycle club due to his temper. He discussed an experience that occurred in the Navy when he saw a sailor thrown overboard and was told to keep quiet or he would be next. He stated that he had intrusive memories of that, and of frequent beatings by officers while on shore leave. The diagnoses were probable PTSD, history of substance abuse, and personality disorder. In November 1995 he filed a claim for entitlement to service connection for PTSD. He indicated on the claims form that he had received no treatment for the claimed disorder while in service. He indicated that he had received post-service treatment for PTSD since 1995 at the VA hospital in White River Junction. In December 1995 he completed a PTSD Questionnaire, in which he noted that, while he was assigned to USS Nashville LPD 13 in the North Atlantic in 1974-1975, his friend mysteriously fell overboard. He stated that he believed some of the crew was responsible. He further stated, "They told me if I ever said anything I'd be next." He noted that his friend's name was [redacted] and he had known him as "[redacted] ." He was the only person who went overboard, and there may have been two or three people on the ship with the name [redacted] . He indicated that GKS, who was also aboard the ship during that time, might know something about the incident. He reported that every time he had shore leave the guys involved with [redacted] 's death would "beat him up." He stated that they would terrorize him all the time with beatings or threats of beatings. One such person was a petty officer, and the other was a second-class petty officer who worked in the laundry. He noted that he had blocked out much of that time and therefore could not recall their names. He indicated that no one else saw what happened to him because they would beat him up when he was alone and there were no witnesses. In January 1996 the RO contacted the veteran regarding his claim and requested that he provide details of the stressful event or events that had caused the claimed PTSD. In that same month, the veteran submitted a document entitled Information in Support of Claim for Service Connection for PTSD, wherein he noted that a crewmember was thrown off the back of the ship and one week later his torso was found floating in the ocean. He further reported that he was threatened for the rest of his time in the service. He indicated that the approximate date the event took place was between 1973 and 1977, on the USS Nashville. He was assigned to the USS Nashville, LPB 13. He also averred that the name of the person killed was [redacted] and that he did not remember his first name. Also in January 1996, the veteran was admitted to a VA facility with complaints of depression and suicidal ideation, stating that he had paranoid thoughts of people who were out to "get him." It was noted that he mentioned an event which happened twenty years earlier while he was in the Navy. He stated he thought he had witnessed a murder, and was concerned that the individuals who perpetrated the crime were out to seek revenge against him. Further, it was noted that he had also been using heroin very heavily over the previous several months, possibly years, and had also been using cocaine very heavily prior to admission. He had been intoxicated upon admission. The diagnoses included under Axis I were polysubstance dependence, including heroin, cocaine, and possibly alcohol. The stressor shown under Axis IV was marital discord, characterized as moderate to severe. His score on the Global Assessment of Functioning (GAF) scale was 30. In a January 1996 VA outpatient treatment report it was noted that the veteran had PTSD symptoms as follows - under the "B" criterion: intrusive memories; "C": avoidance of memories, estrangement, numbing; and "D": anger, poor concentration, and hypervigilance. The examiner noted that proving the "A" criterion might be difficult, although he had no reason to disbelieve the veteran, and thought his account of the disappearance of the sailor should be verifiable. In his clinical assessment of the veteran, the examiner noted that he was skeptical about the veteran's ability to stay sober and clean, but would let him prove his assertion that he could, and then respond accordingly. A VA outpatient treatment report of February 1996 revealed a diagnosis of PTSD as well as personality disorder and "rule out" MDD (major/manic depressive disorder). Later, PTSD, polysubstance dependence in early partial remission, and "rule out" antisocial personality disorder were diagnosed in April and May 1996. In June 1996 the RO requested that the National Personnel Records Center (NPRC) furnish the official U.S. Navy logs, records, investigations, etc., of the USS Nashville for an incident which occurred sometime between February 1975 and February 1977. NPRC responded that deck log information could be obtained from the Naval Historical Center at the Washington Naval Yard. VA outpatient treatment reports of June 1996 indicate that the veteran was experiencing increased depressive symptoms secondary to financial and marital problems and situational stressors. In July 1996 the RO requested records from the U.S. Army and Joint Services Environmental Support Group (now known as U.S. Armed Services Center for Research of Unit Records (USASCRUR)). The RO specifically requested records concerning the incident that the veteran described concerning someone named [redacted] or [redacted] . In a written statement dated in September 1996 by a VA addiction therapist, it was noted that the veteran was a psychotherapy patient who had been referred by his psychiatrist. The therapist noted that the veteran had had symptoms of anxiety, irritability, social withdrawal, and depression. He had been briefly hospitalized in the beginning of the year for suicidal ideation, and was diagnosed with antisocial personality disorder, anxiety disorder NOS, PTSD, and polysubstance dependence in early partial remission. VA outpatient treatment records dated in October, November, and December 1996 and signed by the veteran's addiction therapist provide a clinical assessment of antisocial personality disorder. In October 1996 the RO received the deck logs for the USS Nashville (LPD-13) which provided the command history from 1976 and 1977. The incident to which the veteran referred, in which a sailor disappeared overboard and was later found dead, was not described in any of the deck logs received. In a telephone discussion with the veteran in October 1996, he indicated to the RO that there were no other witnesses to the incident when a person named [redacted] was allegedly thrown overboard by two petty officers, and he did not know how it could be verified through documents. But, [redacted] body, he stated, was later recovered and that should be verifiable. He did not remember the year or the location of the ship at the time of the incident. He stated that he had recently divulged the incident to a friend, RG, who served with him and who might be willing to submit a written statement. He stated that RG could not verify the incident, as he did not witness it, but he could verify that the veteran recently told him about he incident. In November 1996, January 1997, and May 1997 the RO requested the U.S. Navy logbooks, records, investigations, etc., of the USS Nashville for 1975. In a February 1997 VA outpatient treatment report by the veteran's addiction therapist, he (the veteran) discussed his feelings of anger and distress with respect to an alleged perpetrator of an assault on his niece. He discussed feelings of wanting to bring harm to the perpetrator. He also reported that he had been rejected for Social Security Administration disability benefits, which had happened before. The therapist provided a clinical assessment indicating an antisocial personality disorder and PTSD. VA outpatient treatment reports by the veteran's addiction therapist dated intermittently from April 1997 to June 2001 for psychological therapy sessions show the veteran had been clinically assessed during that period with having an antisocial personality disorder. In addition to that assessment he was also diagnosed with PTSD in June 1998, July, 1998, August 1998, September 1998, April 1999, May 1999, July 1999, October 1999, and April 200l. In a June 1997 response from the USASCRUR it was noted that the history of the USS Nashville confirms that that ship deployed to the Mediterranean in 1975. However they were unable to verify that a person named "[redacted] " was killed during the veteran's period of assignment to the USS Nashville. The RO was informed that in order to conduct further casualty research, the veteran must provide a specific date, "[redacted] " full name, and a complete unit designation. In June 1997 the RO denied the veteran's claim of entitlement to service connection for PTSD on the basis that the evidence available for review did not establish that a stressful experience occurred in service. The veteran perfected an appeal. The RO issued an SOC in February 1998 which continued the denial. In a June 1999 medical statement, a VA treating physician noted that the veteran was a patient in his care at the VA Medical Center (MC). He stated that he had treated him for PTSD, among other things. He noted that the veteran had received therapy treatment for PTSD and an antisocial personality disorder. He further noted that, given his combination of multiple medical and psychiatric problems, the veteran was not capable of competitive employment. In July 1999 the RO again contacted the veteran pursuant to the Board's remand directive and requested that he supply the full name and complete unit designation of "[redacted] or [redacted] ," the serviceman who allegedly died after he was thrown overboard from the USS Nashville sometime in 1975 or 1976. In addition, the RO requested the date on which the incident had occurred. The veteran was advised that in the event the information was not provided, the allegation could not be verified by the USASCRUR. In addition, the RO requested that the veteran provide information as to whether he was physically assaulted and/or verbally threatened. If he had been physically beaten then he should provide the RO with details such as where and when the beating(s) took place and where and when treatment for such beating(s) was sought. The veteran was also asked to respond to the following questions: "Did you ever report the beatings and/or threats while in service? Was an investigation conducted? Please supply the full names of the Petty Officers involved in the incident(s)." In October 1999 the RO issued a supplemental SOC (SSOC) in which it continued the denial of the veteran's claim of entitlement to service connection for PTSD. It was indicated in the SSOC that the veteran had not responded to the RO's request for evidence which had been sent to him in July 1999. In March 2000 the RO notified the veteran that he again had an opportunity to submit any additional evidence which would clarify the claimed in-service PTSD stressors. In November 2000 the RO issued another SSOC, in which it continued the denial of the veteran's claim of entitlement to service connection for PTSD. It was indicated in the SSOC that the veteran had not responded to the RO's request for additional evidence which had been sent to him in March 2000. In a November 2000 written statement from the veteran's sister, she stated that the veteran wrote her while in the service and told her that he had witnessed a friend being thrown overboard. He stated that an argument had started with the guy and then two or three men beat his friend and threw him off the ship. She further stated that when the veteran came home he was different and would not talk about anything he had seen. The veteran was hospitalized at a VA facility from December 2001 to January 2002, with a diagnosis under Axis I of adjustment disorder with depressed mood. The stressor indicated under Axis IV was the possibility of returning to jail status pursuant to an upcoming court date. His GAF score was 30. By letter dated in April 2001 the RO informed the veteran of the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). The letter also informed him of the evidence necessary to establish entitlement, what information or evidence the RO still needed from him and what he could do to help with his claim. In October 2001 the RO again requested deck log information from the Naval Historical Center. The response from them was that a years worth of logs would cost $218.00 for specific information and it was much cheaper to narrow down the request for information if possible. In a written statement by GKS received by the RO in December 2001, he noted that he was stationed aboard the USS Nashville, where he met the veteran. He stated that one night while they were out on a cruise the veteran had slipped to the back of the ship to smoke a cigarette. GKS stated that he was watching television when the veteran came running in white as a ghost and told him that he had seen two guys throw someone off the back of the ship. He said that he was sure they saw him so he took off running. He further noted that a day or so later a guy named [redacted] was reported missing and all they recovered was a torso. From that night on the veteran would not go anywhere or walk anywhere by himself, someone would have to be with him. In March 2002 the RO notified that veteran of the response from the Naval Historical Center and informed him that VA was prohibited from paying for the records. The RO further advised the veteran that he needed to provide enough information to support his claim to allow them to request records from other Federal agencies. He was further notified that before another request for supporting records from the Naval Historical Center would be made, he must furnish specific information regarding the time frame covering the stressful events that he allegedly endured. VA mental health outpatient treatment reports dated in June 2002 reveal that upon examination, the veteran was clinically assessed with having an antisocial personality disorder. In July 2002 he was seen for treatment at the VA mental health outpatient clinic. He reported having little sleep in the past two weeks due to discontinuing medication due to retrograde ejaculation. He also reported that he felt stressed due to his part-time work. He indicated that he had been more irritable recently and fighting with his wife. He disclosed that he choked his wife in his sleep one night. He had also had an argument with his ex-wife regarding their son. The clinical assessment was that he was worse in a setting of stressors and insomnia, due to not being able to take medication. In August 2002 the M&ROC contacted GKS, who was aboard the USS Nashville at the time of the alleged incident reported by the veteran. GKS was asked to provide information as to when the incident occurred, and/or where the ship was cruising at that time. There has been no response from GKS to this request. In October 2002 the M&ROC issued a SSOC in which the denial of the veteran's claim for entitlement to service connection for PTSD was continued on the basis that there was no evidence to corroborate the claimed in-service stressor. II. Legal Analysis A. Preliminary matters - VCAA During the pendency of this appeal, the President signed into law the VCAA, which substantially amended the provisions of chapter 51 of title 38 of the United States Code and, among other things, eliminated the requirement of a well-grounded claim and enhanced the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (now codified as amended at 38 U.S.C.A. § 5103 (West 2002)). VA has long recognized that the Department has a duty to assist claimants in developing evidence pertinent to their claims. See the former version of 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.103(a) (2002). Changes in law have amended the requirements as to VA's development efforts in this, and other pending cases, modifying and clarifying VA's duty to assist a claimant in evidentiary development. See VCAA, supra. See generally Holliday v. Principi, 14 Vet. App. 280 (2001). In addition, VA has published new regulations, which were created for the purpose of implementing many of the provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2002)). Judicial case law is inconsistent as to whether the new statute is to be given retroactive effect. The United States Court of Appeals for Veteran Claims (Court) has held that the entire VCAA potentially affects claims pending on or filed after the date of enactment (as well as certain claims that were finally denied during the period from July 14, 1999, to November 9, 2000). See generally Holliday v. Principi, supra; see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). That analysis would include cases that had been decided by the Board before the VCAA, but were pending in Court at the time of its enactment. However, the United States Court of Appeals for the Federal Circuit has held that only section 4 of the VCAA (which eliminated the well-grounded claim requirement) is retroactively applicable to decisions of the Board entered before the enactment date of the VCAA, and that section 3(a) of the VCAA (covering duty-to-notify and duty- to-assist provisions) is not retroactively applicable to pre- VCAA decisions of the Board. See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002) (stating that Dyment "was plainly correct"). Although the Federal Circuit appears to have reasoned that the VCAA may not retroactively apply to claims or appeals pending on the date of its enactment, the Court stated that it was not deciding that question at this time. In this regard, 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 its enactment. Further, the regulations issued to implement the VCAA are expressly 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 2002). Therefore, for purposes of the present case, the Board will assume that the VCAA is applicable to claims or appeals pending before the RO or the Board on the date of its enactment. The VCAA contains a number of new provisions pertaining to claims development procedures, including assistance to be provided to claimants by the RO, and notification as to evidentiary requirements. We have carefully reviewed the claims file, to ascertain whether further remand to the RO or other development is necessary in order to assure compliance with the new legislation. We note that the development of medical evidence appears to be complete. By virtue of the SOC issued in February 1998, the SSOCs of October 1999, November 2000, and October 2002, the text of the Board's remands of June 1999, March 2000, and March 2001, and correspondence provided by the RO, the Board believes that the appellant has been given ample notice of the information and/or medical evidence necessary to substantiate his claim. Likewise, he has also been given notice that VA has a duty to assist him in obtaining any evidence that may be relevant to this appeal. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (noting that VA must communicate with claimants as to the evidentiary development requirements of the VCAA). In this regard, the Board notes the letter of April 2001 in which the RO advised the veteran of the enactment of VCAA, and of VA's responsibility to assist him by obtaining medical records and other evidence to support his claim. Therein, the RO expressly advised the veteran of what evidence VA had already received and what evidence was necessary to establish entitlement. See Quartuccio, supra. It is thus clear that substantial compliance with the requirements of the VCAA has been established in this matter. See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). It thus appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims folder, and that he has not reasonably identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board believes that the RO obtained all relevant medical records that the veteran sufficiently identified. As discussed in the Factual Background, above, the RO has made several requests to obtain information to verify the veteran's alleged stressors. The veteran was advised that more specific information was needed in order to verify the alleged stressor. Because he did not provide that information, despite being so advised to on several occasions, VA is unable to make any further efforts to verify the alleged stressor. Moreover, the Board is aware that VA may assist the veteran by providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2002). For the reasons discussed herein, there is no need for an examination. In summary, we find that VA has satisfied its duty to assist the appellant in apprising him as to the evidence needed, and in obtaining evidence pertaining to his claim, under both former law and the new VCAA. 38 U.S.C.A. § 5107(a) (West 2002). The Board therefore finds that no useful purpose would be served in undertaking more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no benefit flowing to the appellant. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In fact, the Court has stated, "The VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims." Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). The Board concludes that any defect in meeting the technical requirements of the VCAA is nonprejudicial and harmless error. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2002); In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. B. Discussion In general, under pertinent law and VA regulations, service connection may be granted if the evidence establishes that the veteran's claimed disability (in this case, a psychiatric disorder) was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2002). Notwithstanding the lack of a diagnosis of a psychiatric disorder during service, service connection may still be granted if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2002); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). With specific reference to PTSD, establishing service connection for PTSD requires (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2002); Anglin v. West, 11 Vet. App. 361, 367 (1998); Gaines v. West, 11 Vet. App. 353, 357 (1998), Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Suozzi v. Brown, 10 Vet. App. 307 (1997). The diagnosis of PTSD must comply with the criteria set forth in DSM-IV. See generally Cohen v. Brown, supra; 38 C.F.R. § 4.125 (2002). The evidence required to support the occurrence of an in-service stressor varies "depending on whether or not the veteran was 'engaged in combat with the enemy'. . . . Where . . . VA determines that the veteran did not engage in combat with the enemy . . . the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor." Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The requisite additional evidence may be obtained from sources other than the veteran's service medical records. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996), aff'd, 124 F.3d 228 (Fed. Cir. 1997) (table); see also Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); Doran v. Brown, 6 Vet. App. 283 (1994); Zarycki, supra, at 98. Prior to March 7, 1997, governing regulations provided that service connection for PTSD required medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor was related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation would be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (1996). However, on June 18, 1999, and retroactive to March 7, 1997, that regulation was amended to read as follows: Service connection for PTSD requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter, a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed inservice stressor actually occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is consistent with the circumstances, conditions, and hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. If the evidence establishes that the veteran was a prisoner-of-war under the provisions of Sec. 3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions and hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 64 Fed. Reg. 32,807 (June 18, 1999) codified at 38 C.F.R. § 3.304(f) (effective March 7, 1997). Pursuant to Karnas v. Derwinski, 1 Vet. App. 308 (1991), where a law or regulation changes after the claim has been filed or reopened before administrative or judicial review has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. While, in Rhodan v. West, 12 Vet. App. 55 (1998), the Court stated that a liberalizing regulation cannot be applied retroactively under Karnas unless the regulation contains language that permits it to be so applied, the veteran does get the benefit of having both the old regulation and the new regulation considered for the period after the change was made. See VAOPGCPREC 3-00 (Apr. 10, 2000); Rhodan v. West, supra, appeal dismissed, No. 99-7041 (Fed. Cir. Oct. 28, 1999). Notwithstanding the above, in considering the veteran's claim of entitlement to service connection for PTSD received in 1996, the Board will apply the version of the regulation most favorable to him. 38 U.S.C.A. § 1154(b) (West 1991) provides that, with respect to combat veterans, "[t]he Secretary shall accept as sufficient proof of service-connection [of a claimed injury or disease] satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary." See also 38 C.F.R. § 3.304(d) (2002). If there is no verified combat experience, or if there is a determination that the veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran, 6 Vet. App. at 288-89 (1994). The veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio, 9 Vet. App. at 166 (1996). Further, an opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of a stressor. Moreau v. Brown, 9 Vet. App. at 395-96 (1996); Cohen v. Brown, 10 Vet. App. 128 (1997). The Board notes that there are several notations of PTSD in the record. Therefore, the primary question which must be resolved in this decision is whether the appellant sustained a qualifying stressor within the requirements of 38 C.F.R. § 3.304(f), as discussed above. Without such corroboration of a qualifying stressor, the question of the validity of a diagnosis of PTSD is irrelevant. See Moreau, 9 Vet. App. at 395-396; Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described). In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b); 38 C.F.R. §§ 3.303(a), 3.304; Hayes v. Brown 5 Vet. App. 60, 66 (1993). As noted above, where the claimed stressor is not related to combat, "credible supporting evidence" is required and "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor." See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The requisite additional evidence may be obtained from sources other than the veteran's service records. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996), aff'd, 124 F.3d 228 (Fed. Cir. 1997) (table). In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court clarified the analysis to be followed in adjudicating a claim for service connection for PTSD. The Court pointed out that VA has adopted the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) in amending 38 C.F.R. §§ 4.125 and 4.126. See 61 Fed. Reg. 52,695-702 (1996). Therefore, the Court took judicial notice of the effect of the shift in diagnostic criteria. The major effect is that the criteria have changed from an objective ("would evoke . . . in almost anyone") standard in assessing whether a stressor is sufficient to trigger PTSD, to a subjective standard tailored to the individual. The criteria now require exposure to a traumatic event and response involving intense fear, helplessness, or horror. The question of whether a claimed stressor was severe enough to cause PTSD in a particular individual is now a clinical determination for the examining mental health professional. See Cohen, supra. Nothing in Cohen, however, negates the need for a non-combat veteran to produce credible corroborating and supporting evidence of any claimed stressor used in supporting a diagnosis of PTSD. Id.; Moreau, supra. The corroboration may be by service records or other satisfactory evidence. See Doran v. Brown, supra. In Doran, a veteran's service records had been lost due to fire, but his account of in-service stressors was corroborated by statements from fellow servicemen. Moreover, the Court has stressed the necessity of complete development of the evidence if a PTSD claim is based on an alleged personal assault. See Patton v. West, 12 Vet. App. 272, 276 (1999). In Patton, the Court pointed out that there are special evidentiary development procedures for PTSD claims based upon personal assault contained in the VA Adjudication Procedure Manual M21-1, Part III, Para. 5.14(c) (Feb. 20, 1996), and former MANUAL M21-1, Part III, Para. 7.46(c)(2) (Oct. 11, 1995). The general M21-1 provisions on PTSD claims in Para. 5.14 require that, in cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence. Manual M21-1, Part III, Para. 5.14(b)(2). As to personal- assault PTSD claims, more particularized requirements are established regarding the development of "alternative sources" of information as service records may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. Manual M21-1, Part III, 5.14(c). Further, the provisions of subparagraphs (7) and (8) indicate that "[b]ehavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor", and that "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes" and that "[e]vidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." When read together, the Court states that the subparagraphs show that, in personal-assault cases, the Secretary has undertaken a special obligation to assist a claimant in producing corroborating evidence of an in-service stressor. The Court has held that the provisions in M21-1, part III, 5.14(c), which address PTSD claims based on personal assault are substantive rules which are the equivalent of VA regulations and must be considered. See YR v. West, 11Vet. App. 393, 398-99 (1998). Also in Patton, the Court qualified prior statements contained in other Court decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for "credible supporting evidence"," and that "[a]n opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of the stressor." The Court stated that these quoted categorical statements were made in the context of discussing PTSD diagnoses other than those arising from personal assault. See Cohen, supra; Moreau v. Brown, 9 Vet. App. 389 (1996). To that extent, the Court found that the above categorical statements in Cohen and Moreau, and other cases where that may have been in accordance, are not operative. In addition, the Court noted that in two places Manual M21-1, Part III, 5.14, appeared improperly to require that the existence of an in-service stressor be shown by "the preponderance of the evidence." The Court clearly stated that any such requirement would be inconsistent with the benefit-of-the- doubt doctrine, which is applicable where the evidence is in equipoise. Patton, 12 Vet. App. at 280. In the veteran's case, his service records do not show, and he does not contend, that he ever engaged in combat with an enemy of the United States. He has claimed that the in- service stressor which resulted in the development of PTSD was the experience of witnessing a friend named [redacted] being thrown overboard the ship, and threats that he would be next if he said anything. Also he alleges that he was beaten by the same individuals who allegedly threw [redacted] overboard. The basis of the RO's denial of the claim for service connection for PTSD was the lack of any credible supporting evidence that the homicide or the beatings had occurred. The Board notes that the outcome of this issue hinges on the existence and corroboration of stressors. The veteran has been given the opportunity to describe his claimed stressors, and he has indeed done so. Not only has he provided stressor information, there is a statement on file from GKS, who served onboard the ship with the veteran and stated that the veteran told him that he had witnessed someone being thrown overboard. In addition, the veteran's sister stated that the veteran had told her of the alleged incident wherein he witnessed a friend being thrown overboard. Since the claimed stressor is not related to combat, there must be some corroboration that the stressor actually took place, other than the veteran's own statements and what he told others. Here, information received from the NPRC, Naval Historical Center, and USASCRUR has not corroborated the veteran's account of the stressor. In fact the USASCRUR was unable to verify that a person named "[redacted] " was killed during the veteran's period of assignment to the USS Nashville. In addition, deck logs for the USS Nashville (LPD-13) from 1976- 1977 do not describe the alleged stressor. Furthermore, when the veteran sought in-service psychiatric treatment in 1977, he did not mention the incident and he was diagnosed with an immature personality disorder that was determined to have existed prior to enlistment. Moreover, the service medical records do not show any treatment for beatings claimed to have been administered by shipmates. In summary, the Board finds that there is no credible supporting evidence to substantiate the veteran's claimed stressors, either witnessing the murder of a shipmate or undergoing one or more personal assaults by his superiors. Thus, his claim fails to satisfy one of the essential elements in establishing service connection for PTSD, i.e., credible evidence of an in-service stressor. 38 C.F.R. § 3.304(f) (old and new versions). Furthermore, the Board notes that the post-service VA health care providers who rendered diagnoses of PTSD did so based upon the veteran's unverified and uncorroborated accounts as to his in-service experience. Accordingly, the Board finds that such diagnoses are not probative. See Swann v. Brown, 5 Vet. App. 229, 233 (1993). The Board further notes that, because of the lack of verified stressors, we believe there is no necessity to seek current medical records or conduct a VA examination to confirm previous diagnoses of PTSD, or to determine whether the veteran has a present diagnosis of PTSD. See 38 U.S.C.A. § 5103A(d)(1) (West 2002). In view of the foregoing, because there is no credible supporting evidence of an in-service stressor, and because the diagnoses of PTSD of record lack probative value, the Board concludes that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for PTSD. The benefit sought on appeal must, accordingly, be denied. ORDER Entitlement to service connection for post-traumatic stress disorder is denied. _____________________________ ANDREW J. MULLEN 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.