Citation Nr: 0325624 Decision Date: 09/29/03 Archive Date: 10/03/03 DOCKET NO. 95-39 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran served on active military duty from August 1979 to September 1983, and from June to November 1991, with unverified periods of service in the U.S. Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In May 2001, the Board remanded the veteran's claim to the RO for further evidentiary development. The veteran was scheduled for a Board hearing at the RO in June 2000 and requested that the hearing be rescheduled. She was rescheduled for a Board hearing at the RO in February 2001, but failed to report and did not request that the hearing be rescheduled. As a result, the Board believes all due process requirements were met with regard to her hearing request. FINDINGS OF FACT 1. The veteran has a current medical diagnosis of PTSD, and at least one VA medical examiner has related the diagnosis to her claimed in-service sexual assault/rape. 2. The veteran's claimed in-service stressor is not related to combat. 3. The occurrence of the veteran's claimed in-service sexual assault/rape is not supported by credible corroborating evidence. 4. The current diagnosis of PTSD is based upon unsubstantiated reports of a stressor, or stressors, as provided by the veteran. CONCLUSION OF LAW Post-traumatic stress disorder was not incurred in or aggravated during, or as a result of, active military service. 38 U.S.C.A. §§ 1110, 1131, 5100-5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2002); 67 Fed. Reg. 10,330 (March 7, 2002), (now codified at 38 C.F.R. § 3.304(f)). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background When the veteran was examined for entry into service in July 1979, a psychiatric abnormality was not reported and she was found qualified for active duty. Service medical records are not associated with the claims file. The veteran was released from active duty in September 1983, and her Report of Transfer or Discharge (DD Form 214) indicates that her military occupational specialty (MOS) was Chemical Operations Specialist. It was indicated that she had spent part of her tour of duty in Germany. Thereafter, the veteran evidently had periods of inactive duty for training and/or inactive duty training service in the U.S. Army Reserve, and had active duty during the Persian Gulf War from June to November 1991. A DD Form 215, issued in August 1992 to update a previously issued DD Form 214, shows that she served in the Southwest Asia theater of operations from July 23, 1991, to September 11, 1991. An October 1990 service department record indicates the veteran was assigned to the 91st Training Support Brigade until May 1991. Although the RO repeatedly requested the veteran's service and personnel records from the National Personnel Records Center (NPRC), the records are apparently unavailable. Her awards and decorations include the Army Commendation Medal, the Army Achievement Medal, the Good Conduct Medal, the National Defense Service Medal, the Southwest Asia Service Medal w/Bronze Star, the Army Service Ribbon, and the Army Lapel Button. Her military occupational specialty was Chemical Operations Specialist. Her last duty assignment and major command was with the 91st TRNG SPT BDE, and she was transferred to the 91st TRNG SPT BDE in Dublin, California. Post-service, VA and private medical records and examination reports, dated from 1992 to 2003, are associated with the claims file. VA medical records dated in April and November 1992 reflect the veteran's relapses of polysubstance abuse and cocaine use. A November 1992 VA Drug Free Intake record indicates that she sought treatment because of difficulty maintaining her sobriety. Clinical data provided by way of history from the veteran indicates that she drank alcohol from ages fifteen to eighteen, and then used barbiturates. She said she was on active duty from 1979 to 1984 and was discharged to raise her daughter. In 1987 she began "free- basing" crack cocaine. Also in 1987, the veteran was placed on active reserve status. She further reported that, while on active reserve, she snorted cocaine and eventually resumed free-basing. She said her longest period of abstinence was from 1984 to 1985. She was then pregnant, and was dedicated to having healthy children. Depressed and angry about the situation regarding her daughter during the Desert Storm conflict, from June to December 1991, she resumed using crack cocaine until June or July 1992, when VA hospitalized her for treatment. She was also hospitalized for rehabilitation from September 1987 to March 1988, and at a drug center for six months for rehabilitation. A November 1992 Veterans Outreach Center Intake History record indicates that the veteran reported she was a chemical operations specialist in service. She prepared and trained personnel to take samples of water and food, to decontaminate areas, and to withstand chemical attack. It was noted that the veteran had to send people out to investigate alleged "mustard gas" explosions. Her presenting problem was that she was depressed and dealing with sequelae of sexual trauma in the military. She was 31/2 years into recovery for substance abuse. The veteran circled "yes" to the question asking if there had been any adverse or troubling experiences in the military, and reported sexual trauma and an Article 15 (i.e., non-judicial punishment) infraction (for not going to work). She reported being raped when she was eleven years old and that her father "beat up" the perpetrator. She indicated that she was raped again when she was fifteen, and had a son when she was sixteen. The veteran reported being raped by a first sergeant in Germany, and said he threatened harm to her if she told anyone. She said she was then transferred, became depressed, and took 30 days of leave. She described a second sexual attack which she said had occurred during Operation Desert Storm, when a male soldier raped her. She was pursued by the rapist to be in a relationship, applied for emergency leave, and left Saudi Arabia, after which she was discharged. Chronic PTSD and alcohol abuse (in remission) were diagnosed. VA hospitalized the veteran from March to April 1993. The records reflect that she had a long history of treatment for depression since age 15, and a long history of polysubstance abuse, to include both cocaine and alcohol. She reported having been hospitalized in 1988, and was then sober for three or four years thereafter. There were multiple psychiatric admissions with use of an antidepressant in the 1970s. There was no follow-up after her last suicide attempt. It was noted that she had served in the Army in Desert Storm for seven months and enjoyed the camaraderie. "We were all there for each other; I was on a cloud until I came back; then I crashed." The pertinent final diagnosis was polysubstance abuse. In March 1993, the RO received the veteran's claim for service connection for PTSD that she indicated began on December 15, 1991, and major depression. The veteran was hospitalized by VA again from May to July 1993. The diagnosis at that time was cocaine dependence and alcohol dependence, in rehabilitation, and major depression disorder. A September 1993 VA examination report indicates that the veteran, who was then 39 years of age, provided the information for the report and was deemed a reliable historian. The veteran gave a history of serving in Saudi Arabia during the Gulf War as a chemical operations and decontamination specialist. Her job was to train soldiers on how to detect chemicals in the atmosphere and in the ground. She was also involved with duties that included testing areas and personnel for the presence of chemical agents. The veteran said she was not involved in combat. She was also involved in cleanup operations, and picked up the bodies of dead Iraqi soldiers for about one and one-half weeks for about two hours per day. She said that was probably the most traumatic part of her tour of duty in Saudi Arabia. After her return to the United States, the veteran began heavy substance abuse, and lost her home and the custody of her daughter. She became suicidal and depressed, and overdosed twice on medications in suicide attempts. VA hospitalized her after her suicide attempts, when she was diagnosed with drug and alcohol dependence, and referred to an alcohol treatment program. The veteran indicated that she had experienced a happy childhood, finished high school, and went to college for three years. She married at age 25, and that lasted eight years. She had two children, ages 22 and 8 years. She veteran currently lived in a group home in the substance abuse program, and anticipated living independently with her daughter after she was discharged. Upon clinical examination, the Axis I diagnoses were alcohol dependency and polysubstance abuse, both in eight months' remission, major depression, severe, in partial remission, and mild PTSD. The VA examiner stated that the veteran's history and mental status examination were consistent with alcohol dependence and polysubstance abuse. She had major depression that was currently in partial remission. It was noted that her major depression could be secondary to her alcohol and drug abuse. The VA examiner commented that the veteran also had mild symptoms of PTSD that were related to her experience in Saudi Arabia. According to a report of an April 1994 telephone conversation with the veteran, she reported that she served in Desert Storm, and that her assigned unit at that time was the 91st Training Brigade in Dublin, California. In Saudi Arabia, her unit was the 164th Maintenance, Direct Support, 09734 APO. In an April 1994 response to the RO's inquiry, the PSNCO (Personnel Services Non-Commisioned Officer) of the 91st Training Brigade said that the veteran was never a member of this unit. In a June 1994 statement, T.P., the veteran's friend indicated that the veteran was very withdrawn and depressed after returning from Saudi Arabia. The veteran lived with T.P. for several months, during which time she experienced nightmares, headaches, and deep depression. According to VA Mental Hygiene Clinic (MHC) psychiatry records dated in 1995 and 1996, an August 1995 psychiatry progress note evaluation of depressive symptoms indicates that the veteran had a history of substance abuse and was clean and sober for 30 months. She reported a number of traumatic experiences in her life, including rape at ages 12 and 16. She said she was also raped during her military service while she was participating in Operation Desert Storm in 1990. The assessment at that time was major depression. In her October 1995 substantive appeal, the veteran reported VA treatment for PTSD, and said she was raped at ages 12 and 15 and in Saudi Arabia. While in Saudi Arabia, the veteran indicated that she was exposed to the removal of decomposed Iraqi soldiers VA clinical records dated in 1996 include diagnoses of PTSD and major depression. A February 1996 VA psychiatry progress note includes an assessment of major depression that was stable with prescribed medication. A June 1996 psychiatry note indicates the veteran was sexually assaulted by an acquaintance from the "fellowship". According to the record, he made aggressive advances but apparently did not harm the veteran physically. She filed charges of assault and battery. Since then, previous feelings related to her rape and daughter's molestation re-surfaced and were a source of stress. The assessment was recent sexual trauma. A June 1996 Vet Center Intake Record includes an assessment of a history of PTSD and polysubstance abuse (sober for more than three years). Vet Center records include a diagnosis of PTSD. In an October 1996 assessment, the examining psychologist commented that the veteran struggled with symptoms of rape, both in the military and prior to entering service, and experienced anxiety, hypervigilance, depression, and rage at men. In an August 1996 written statement, the veteran said she was raped at age 11 and again at 16, when she became pregnant and gave birth to a son. She stated that, during her first period of active military service, while stationed in Germany, she was asked to baby-sit for her first sergeant. She said SGT R returned home without his wife and raped her. He threatened that her military career would end if she told anyone. She was later promoted and transferred, and did not tell anyone what had happened. The veteran further stated that in August 1991 another service member raped her while they were stationed in Saudi Arabia, but she had blocked out the man's name, although she recalled going to the clinic after the rape. She said that in June 1996 she was assaulted by a man in a store and filed a police report, a copy of which she submitted. (The report reflects her criminal complaint for indecent exposure.) The veteran said the attacker in the store had the same first name as the man who raped her at age 16, and she began having flashbacks. An August 1996 VA psychiatry progress note for follow-up of depressive symptoms includes an assessment of mood and depressive symptoms and PTSD/sexual trauma for which the veteran started to seek treatment. When seen in mid-October, she complained of nightmares, occasional delayed sleep, and lack of concentration during the day. The assessment at that time was depression or PTSD. When seen later in the month, the veteran reported symptoms of PTSD, and especially anger, that had bothered her for the past four years when she was substance free and had worsened in the past two months. The assessment at that time moderately severe PTSD, for which medication was prescribed. VA MHC records dated in 1997 indicate that when the veteran was seen in January, the assessment was bipolar disorder, unmasked by outpatient Prozac. In April 1997, the assessment was atypical depression. A July 1997 record indicates the veteran's problems were alcohol and cocaine dependence. She reported a substance abuse problem as a result of working on her PTSD issues at the Women's VETS Group in Oakland, California. In a February 1998 written statement, V.M.V., LCSW, said she treated the veteran and her daughter from 1994 to 1996, during which time the veteran reported being raped when she was fifteen and twice while in active service. It was noted that the veteran's daughter was molested in October 1995. Further, from November 1995 to September 1996, the veteran experienced a sexual incident that was reported to the police, and was stalked by a man. Her daughter's molestation resurrected the veteran's memories of being raped and impregnated as a 15-year-old and included two rapes in service that she had blocked out. It was noted that her Gulf War experience was very traumatic and there was a possibility of exposure to chemical warfare, with its attendant physical problems. April 1998 VA outpatient records indicate that the veteran reported being stalked by a fellow Alcoholics Anonymous member. She had obtained a permanent restraining order against the man, but he violated it. VA clinical records dated from 1998 to 2003 include diagnoses of PTSD and cocaine abuse, in remission. In June 2002, the RO received another negative response to its inquiry from the 91st Special Training Brigade regarding receipt of the veteran's service medical and personnel records. In a December 2002 written response to the RO's inquiry, the U.S. Armed Services Center for Research of Unit Records Research (USASCRURR), said that the veteran's name appeared on the personnel database portion of the Department of Defense Persian Gulf Registry as serving in Southwest Asia. However, it did not show her as serving with the 164th Maintenance Company (Main Co) during the Gulf War. It had her assigned to a Personnel Mobilization Unit at Ft. Dix. USASCRURR was unable to locate documentation regarding the 164th Maintenance Company (Maint Co) during the Gulf War. Information available indicated that the 164th Maint Co was assigned at different times to both the 246th Quartermaster Battalion (Graves Registration) and the 731st Maintenance Battalion during its tour of duty in the Persian Gulf area. Both units were either involved in, or had units assigned to them, that performed graves registration/mortuary duties. However, USASCRURR was unable to verify the duties each soldier performed during the Gulf War. Pursuant to the Board's May 2001 remand, the veteran underwent VA psychiatric examination in April 2003. According to the examination report, the veteran was unemployed and received SSI for approximately 5 or 6 years, and had approximately 10 prior hospitalizations. The veteran gave a history of serving as a chemical operations specialist in the 174th maintenance direct support unit during Operation Desert Storm. She was assigned to Saudi Arabia and on one occasion awoke to find another service member raping her. He was a man known to the veteran and was in their unit. The veteran said that the man came from the 3rd floor and all women were on the 2nd floor. The attacker told her not to say anything but she said she went to the commander the next morning and to the military police. Several days later she received orders to return to the United States and the case was not pursued. She said she was sober when she went to Desert Storm and when she returned, but started using drugs after she returned. The veteran stated that in August 1979 she was not raped when she was babysitting for SGT R, who left with his wife but returned alone. He had alcohol on his breath and blocked the doorway, but she talked her way out of the situation. The sergeant never touched her and his wife arrived shortly thereafter. He apologized for his behavior the next day. Further, prior to military service, the veteran reported that she was raped when she was fifteen years old. She said she reported it to the police but nothing was done, and she has a 31-year-old son from that experience who was raised by the veteran's mother. The veteran reported coming close to being raped when she was approximately 12 years old, but her father interrupted the situation. The VA examiner commented that, in hearing the above, it seemed the veteran reported an incident in the military that sounded as if it was based in reality. According to the examination report, the veteran had sleep difficulty and recurrent thoughts about the rape in the military, although she did not want to think about it, and nightmares and flashbacks of the event. Certain men reminded the veteran of the event, and she preferred to attend Narcotics Anonymous and Alcoholics Anonymous meetings for women to avoid being around men. Certain odors reminded the veteran of the rape, and she was irritable. She had a history of harming herself four times, most recently in 1999, when she took pills. Her first attempt was at age 16 "a few days after the rape" when she cut her wrist. The veteran reported that her duties during military service in the Gulf War involved picking up and labeling dead body parts. She said that she adjusted to that and had not had any significant problem from it. It was the rape that she reviewed repeatedly and had nightmares about, not body parts. Upon clinical assessment, the Axis I diagnosis was PTSD- chronic (raped in the military and met the criteria for PTSD and military sexual trauma) exacerbated by recent events n the Persian Gulf. An April 2003 VA outpatient record entry made by a physician who had treated the veteran in the past includes an assessment of depression and cocaine abuse in remission. II. Analysis A. Veterans Claims Assistance Act In November 2000, the President signed into law the Veterans Claims Assistance Act (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), 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, 5103A (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). The recent 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), overruled in part on other grounds, Kuzma v. Principi, ___ F.3d ___, No. 03-7032 (Fed. Cir. Aug. 25, 2003). In addition, VA has published regulations to implement 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)). The intended effect of these regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and scope of assistance VA will provide a claimant who files a substantially complete application for VA benefits. The new regulations also provide guidelines regarding VA's duties to notify claimants of necessary information or evidence and to assist claimants in obtaining evidence. The new regulations, which in pertinent part are effective as of the date of enactment of the VCAA, interpret and implement the mandates of the statute, "and do not provide any rights other than those provided by the VCAA." 66 Fed. Reg. 45,629. Judicial case law has been inconsistent as to whether the new statute is to be given retroactive effect. The United States Court of Appeals for Veterans Claims (CAVC) 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), overruled in part on other grounds, Kuzma v. Principi, ___ F.3d ___, No. 03-7032 (Fed. Cir. Aug. 25, 2003). That analysis would include cases that had been decided by the Board before the VCAA, but were pending in the CAVC at the time of its enactment. However, the U.S. Court of Appeals for the Federal Circuit (CAFC) 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 Kuzma v. Principi, supra (citing with approval Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002), and Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002), both of which had implicitly overruled Karnas); see also Stephens v. Principi, 16 Vet. App. 191 (2002) (per curiam) (holding that Court remand for the Board to apply the VCAA is not required where the Board decision had been issued before the date of enactment of the VCAA). Although the CAFC has held that the VCAA does not retroactively apply to claims decided by the Board before the date of its enactment, the Board notes that the VA General Counsel, in VAOPGCPREC 11-00, appears to hold that the VCAA is retroactively applicable to claims pending on the date of its enactment. Further, the VA 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. Changes potentially relevant to the appellant's appeal include the establishment of specific procedures for advising the claimant and his or her representative of information required to substantiate a claim, a broader VA obligation to obtain relevant records and advise claimants of the status of those efforts, and an enhanced requirement to provide a VA medical examination or obtain a medical opinion in cases where such a procedure is necessary to make a decision on a claim. The VA psychiatric examinations performed in September 1993 and April 2003 fulfill these criteria. The Board finds that the requirements of the VCAA have clearly been satisfied in this matter. The record reflects the RO's repeated and numerous requests to the National Personnel Records Center (NPRC) for the veteran's service medical and personnel records for her periods of active duty. However, it appears that only some documents were received for her first period of service and from her reserve service and active service in the Gulf War. Additionally, in April 1994 and June 2002, the RO received negative responses to its inquiries from the 91st Special Training Brigade for medical and personnel records regarding the veteran. The Board is mindful that, in a case such as this, where some service medical and personnel records are unavailable, there is a heightened obligation to explain our findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). While it is unfortunate that some of the veteran's service medical and personnel records are unavailable, the appeal must be decided on the evidence of record and, where possible, the Board's analysis has been undertaken with this heightened duty in mind. VA's duty to assist includes making reasonable efforts to obtain medical and other records that are relevant to the appellant's claim, unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. See VCAA § 3(a) (now codified at 38 U.S.C. § 5103A (West 2002)). The Board is aware of the judicial decision in Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), which held that a single request for pertinent service medical records does not fulfill the duty to assist, and that inherent in the duty to assist is a requirement to notify the claimant if VA is unable to obtain pertinent service medical records so that the claimant may know the basis for the denial of her claim, may independently attempt to obtain service medical records, and may submit alternative evidence. The Board is also aware of the Federal Circuit's subsequent decision in Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) (en banc), cert. denied, ___ U.S. ___ (June 16, 2003), which overruled the Hayre decision in part. However, the Cook decision addressed a different point of law (regarding claims of clear and unmistakable error), and did not overrule Hayre as to VA's obligation to make more than one attempt to obtain service medical records thought to be in the custody of Federal government officials. The multiple attempts required by Hayre and Cook have been undertaken in the present case. Furthermore, in lengthy letters to the veteran in November 1995 and September 2001, the RO requested that she provide the specifics of her alleged traumatic event in service, but the veteran failed to respond to those letters. Nor did she respond to the RO's June 2002 letter requesting information to substantiate her claim. We must emphasize, as has the Court of Appeals for Veterans Claims, that "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "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); aff'd on reconsideration, 1 Vet. App. 406 (1991). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). Given the RO's efforts to date, it would be unreasonable to place a burden upon VA to turn up heaven and earth in an attempt to secure further response from the claimant. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Additionally, we note that the appellant was advised, by virtue of a detailed statement of the case (SOC), and supplemental statements of the case (SSOCs) issued during the pendency of this appeal, of the pertinent law, and what the evidence must show in order to substantiate her claim. We, therefore, believe that appropriate notice has been given in this case. The Board notes, in addition, that a substantial body of lay and medical evidence was developed with respect to the appellant's claim, and the SOC and SSOCs issued by the RO clarified what evidence would be required to establish service connection. The appellant responded to the RO's communications with additional evidence and argument, thus curing (or rendering harmless) any previous omissions. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993), infra; VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Further, the claims file reflects that, in its September 2001 letter, the RO advised the veteran of the new VCAA and it s effect on her claim, and the April 2003 SSOC contained the new duty-to-assist law and regulation codified at 38 U.S.C.A. § 5107 (West 2002) and 38 C.F.R. § 3.102 (2002). A copy of the RO's letter and the SSOC were also sent to the veteran's accredited service representative of record. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (noting that VA must communicate with claimants as to the evidentiary development requirements of the VCAA). See also Charles v. Principi, 16 Vet. App. 370, 373-74 (2002) (holding that the Board must identify documents in the file which comply with the notice requirements of the VCAA). Accordingly, the Board believes that VA has no outstanding duty to inform the appellant or her representative that any additional information or evidence is needed to substantiate her claim. VCAA § 3(a), 114 Stat. 2096, 2096-97 (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A). Likewise, it appears that all obtainable evidence identified by the appellant relative to her claim has been obtained and associated with the claims file, and that neither she nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. Thus, the Board is satisfied that all relevant facts have been properly and sufficiently developed, and that the appellant will not be prejudiced by our proceeding to a decision on the basis of the evidence currently of record regarding her claim for a service connection for PTSD. As discussed in detail above, the Board has reviewed the evidence of record and determined that all notification and development actions required by the new legislation appear to have been completed to the extent necessary under the circumstances. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising her as to the evidence needed, and in obtaining evidence pertaining to her claim, under both former law and the new VCAA, to the extent it is applicable. The Board, therefore, finds that no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The Court of Appeals for Veterans Claims 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); see Stephens v. Principi, supra. 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); VCAA § 4, 114 Stat. 2096, 2098-99 (codified as amended at 38 U.S.C.A. § 5107(b)). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims 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 Pursuant to 38 U.S.C.A. §§ 1110 and 1131, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by service. "A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). The veteran seeks service connection for 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); 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 the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, of the American Psychiatric Association (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." See 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 v. Brown, 6 Vet. App. 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 in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service 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 in-service stressor. 38 U.S.C.A. § 1154(b) (West 1991); 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 § 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 in-service stressor occurred. If the evidence establishes 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 in-service stressor. If the evidence establishes that the veteran was a prisoner-of-war under the provisions of § 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. 64 Fed. Reg. 32,807 (June 18, 1999), now codified at 38 C.F.R. § 3.304(f) (2002) (effective March 7, 1997). That amendment implemented the Cohen decision, which had held that 38 C.F.R. § 3.304(f) did not adequately reflect the law of the governing statute, 38 U.S.C.A. § 1154(b). The effective date of the amendment was March 7, 1997, the date the Cohen decision was issued by the Court. More recently, section 3.304(f) was again amended, with specific regard to PTSD claims based upon personal assault. The regulation now reads: Service connection for [PTSD] requires medical evidence diagnosing the condition in accordance with § 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 in-service stressor occurred. Although service connection may be established based on other in-service stressors, the following provisions apply for specified in- service stressors as set forth below: (1) If the evidence establishes 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 in- service stressor. (2) If the evidence establishes that the veteran was a prisoner-of-war under the provisions of § 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, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in- service stressor. (3) If a [PTSD] claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a [PTSD] claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 67 Fed. Reg. 10,330 (March 7, 2002), codified at 38 C.F.R. § 3.304(f). The effective date of the amendment was March 7, 2002, the date of its issuance as a final rule. See YR v. West, 11 Vet. App. 393, 397-399 (1998) (credible evidence is not limited to service department records and can be obtained from any source). When regulations are changed during the pendency of an appeal, the veteran is entitled to a decision on the claim under the regulation most favorable thereto. See Fischer v. West, 11 Vet. App. 121, 123 (1998), quoting Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). Here, we observe that the RO, in its discussion of PTSD in the August 1994 rating decision and August 1995 SOC, referred to the obsolete, "clear diagnosis" version of the regulation. If the present case turned upon the diagnosis, we might be compelled to remand this issue again for the RO to reconsider the matter under the new regulation. However, because the Board is not directly questioning the diagnosis of PTSD, we believe that another remand would simply delay the resolution of this claim unnecessarily, with no benefit to the veteran. See Winters, Soyini, Sabonis, supra. Moreover, the 2002 amendment to section 3.304(f) also does not require further development of this case, because there is no unresolved factual issue as to the occurrence of the scenario that constitutes the claimed personal assault "stressor" in service. In fact, as will be discussed below, the available record is not referable to any complaint of or treatment for a sexual assault in service, and the veteran has not alluded to any additional information that would counter that lack of supportive evidence. The record reveals that, during the course of her appeal, the veteran has described two alleged stressors that caused her PTSD: that she was detailed to a body-bagging detail to retrieve dead Iraqi soldiers while in Saudi Arabia from July to September 1991, and that she was sexually assaulted in service. When the veteran initially filed her claim and was examined by VA in 1993, the Board notes that her alleged in-service stressor event involved picking up the body parts of dead Iraqi soldiers, which she said occurred approximately two hours a day for one and one half weeks in 1991. In April 1994, the veteran told the RO in a telehone conversation that she had served with the 164th Maint Co during the Gulf War. USASCRURR reported that department records did not show that the veteran served with the 164th Maint Co during the Gulf War. Information available to USASCRURR indicates that the 164th Maint Co was variously assigned to both the 246th Quartermaster Battalion (Graves Registration) and the 731st Maintenance Battalion during its tour of duty in the Persian Gulf area. Available information indicates both units were either involved in, or had units assigned to them, which performed graves registration/mortuary duties. However, USASCRURR said it was unable to verify the duties each soldier performed during the Gulf War. Nevertheless, when examined by VA in April 2003, the veteran said that, although part of her duties in service in the Gulf War involved picking up and labeling dead body parts, she had adjusted to that and had not really had any significant problems as a result of that activity. The Board notes that the veteran has also contended that she was the victim of sexual assault. She has said that another soldier raped her while she was on active duty in 1991, and variously alleged that she was raped during her first period of active duty. In her October 1995 substantive appeal she reported being raped at ages 12 and 15, as well as while in Saudi Arabia. In her August 1996 written statement, the veteran reported being raped during her first period of active service. According to the February 1998 statement from a social worker, the veteran reported being raped at age 15, and twice in service. There has been a medical diagnosis of PTSD, attributed to the alleged stressor incidents, made by VA physicians at the Oakland VAMC. Accordingly, the Board finds that there is some evidence of a stressor incident or incidents in service, evidence of a current disability, and also seemingly competent evidence that the current disability is a "residual" of the stressor experienced in service. With that in mind, the Board must review the claim on its merits, account for the evidence that it finds to be persuasive and unpersuasive, and provide reasoned analysis for rejecting evidence submitted by or on behalf of the claimant. Gilbert, supra. For a claim to be denied on its merits, the evidence must preponderate against the claim. Alemany v. Brown, supra. As noted above, the Board is not directly questioning the diagnosis of PTSD in this claim. However, by law, the 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 engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). If the claimed stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence from any source that corroborates the veteran's testimony or statements. YR v. West, 11 Vet. App. at 397; Cohen, 10 Vet. App. at 147. In the particular case of claimed personal assault, VA has established special procedures for evidentiary development. 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)). These procedures take into account the difficulty establishing the occurrence of the stressor through standard evidence, and the need for development of alternate sources of evidence. The provisions of M21-1 dealing with PTSD are substantive rules that are the equivalent of VA regulations; VA is therefore required to follow these provisions. Patton v. West, 12 Vet. App. 272, 277 (1999); YR, supra, 11 Vet. App. at 398-99; Cohen, 10 Vet. App. at 139. Moreover, the 2002 amendments to 38 C.F.R. § 3.304(f), quoted above, have augmented the substantive law pertaining to such claims. The final requirement of 38 C.F.R. § 3.304(f) for service connection of PTSD is medical evidence of a nexus between the claimed in-service stressor and the current disability. In cases of claimed personal assault, VA recognizes that some evidence may require interpretation by a clinician to establish a relationship to the diagnosis, per Manual M21-1, Part III, paragraph 5.14c(9). Accordingly, the general rule that post-service medical nexus evidence cannot be used to establish the occurrence of the stressor is not operative in such cases. Patton, 12 Vet. App. at 280. See Cohen, 10 Vet. App. at 145; Moreau, 9 Vet. App. at 396. The starting point for any determination with regard to PTSD is whether there is a "stressor." Under all versions of the controlling regulation, there must be credible supporting evidence that the claimed in-service stressor(s) actually occurred. 38 C.F.R. § 3.304(f). The question of whether the veteran was exposed to a stressor in service is a factual determination, and VA adjudicators are not bound to accept such statements simply because treating medical providers have done so. Wood v. Derwinski, supra, Wilson v. Derwinski, 2 Vet. App. 614 (1992). The existence of an event alleged as a stressor that results in PTSD (though not the adequacy of the alleged event to cause PTSD) is an adjudicative, not a medical determination. See Zarycki v. Brown, 6 Vet. App. 91 (1993). As the veteran does not allege that she engaged in combat, and as her reported stressors are not related to combat, her assertions, standing alone, cannot, as a matter of law, provide evidence to establish that an in-service event claimed as a stressor occurred. See Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet. App. 70, 76 (1994). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). This does not mean that she cannot establish that the alleged in-service events occurred, it only means that other "credible supporting evidence from any source" is necessary. See Cohen. Since there is a diagnosis of PTSD here, it must be determined whether there is credible supporting evidence of the veteran's alleged stressor, i.e., whether service records or other independent credible evidence corroborates the alleged stressor. See Dizolgio, supra. The Court of Appeals for Veterans Claims has held repeatedly that, where there is a current diagnosis of PTSD, it must be presumed that the physician(s) making the diagnosis accepted the sufficiency of the in-service stressor(s). Nevertheless, since the diagnostician does not generally have firsthand knowledge of whether a stressor actually occurred, credible evidence is required to verify that element. Pentecost v. Principi, 16 Vet. App.124 (2002). Based upon a review of the entire record in this case, and in view of the factors discussed above, the Board finds that the evidence of record has not corroborated the veteran's allegation of a rape in service. The veteran initially maintained that she was raped by SGT R while stationed in Germany in 1979, and by another person, whose identity she cannot recall, in 1991 while in Saudi Arabia. A June 1994 statement from T.P., the veteran's friend, is to the effect that the veteran was very depressed and withdrawn when she returned from her Persian Gulf War service. The record also contains a 1998 statement from a licensed clinical social worker to the effect that the veteran reported being raped at age 15 and twice in service. Contravening the above evidence is the fact that, during her April 2003 VA examination, the veteran said she was not raped by SGT R and was not raped at age 12. More importantly, the veteran has failed to provide the RO with any specific information upon which her allegation of rape in Saudi Arabia could be verified. In its November 1995 and September 2001 letters to the veteran, the RO requested that she provide the specifics of her alleged traumatic event, but she failed to respond to the RO's requests. See Wood v. Derwinski, supra. Notwithstanding the absence of medical records, and giving the veteran the benefit of the doubt, nevertheless, her description of her stressful events in service has been inconsistent, to say the least. In October 1995, the veteran reported being raped at ages 12 and 15, and in Saudi Arabia, and in August 1996 she said she was raped in Germany during her first period of service but, in April 2003, she told a VA examiner that she was not raped at age 12 or during her first period of service. Moreover, her failure to respond to the RO's requests for specific information regarding her stressful event leaves the Board with virtually no factual information upon which to rely regarding the alleged assault. Likewise, medical statements which attempt to accept a claimant's reports as credible and then relate a diagnosis of PTSD to events experienced in service do not constitute the requisite credible evidence of a stressor. Moreau v. Brown, 9 Vet. App. at 389. As noted above, several VA treatment reports reflect that the examiners have indicated that the veteran's current diagnosed psychiatric disorders, particularly PTSD, were due to sexual assault/rape. Clearly, those treating psychiatric physicians did not undertake review of the veteran's service records, but based their premises of in-service sexual assault solely upon the veteran's statements to them. The filtering of the veteran's account of her military service through her physician does not transform the veteran's account into competent medical evidence, or an accurate account of those experiences, merely because the transcriber happens to be a medical professional. See Leshore v. Brown, 8 Vet. App. 409 (1995). Moreover, with regard to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive and is not entitled to absolute deference. Indeed, the CAVC has provided guidance for weighing medical evidence. The Court has held, for example, that a post-service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). A medical opinion based upon speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the claimant's history, and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Further, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998); LeShore v. Brown, supra. As a layperson, the veteran is not competent to render a medical opinion in this regard. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). Accordingly, the veteran is not entitled to service connection for PTSD under the theory that it resulted from unverified, inconsistently reported stressors during service. In light of the foregoing, the Board finds that the record does not support the veteran's assertion that she was raped in service, during either her first or second period of service. Thus, although the foundation for the diagnosis of PTSD in this case was the veteran's account of having been raped, we must conclude that the claimed stressor has not been satisfactorily established as having occurred. The veteran may very well consider events that occurred in conjunction with her alleged sexual events in service to be stressful, but she has failed to provide even one factual detail of the alleged events on which to base her claim, other than a specific description of an alleged sexual assault during her first period of service that she later recanted, and a vague description of a second attack during her second period of service in 1991. Thus, while the veteran does have a diagnosis of PTSD based upon her purported in-service stressor, that stressor is not shown by satisfactory evidence to have occurred. With all due respect to the veteran, we find that her written statements in support of her claim are, thus, unsubstantiated and are of little evidentiary weight. Having so concluded, the Board finds that the preponderance of the credible evidence is against the claim, and that neither a VA psychiatric examination nor further interpretation by a clinician of the in-service symptoms/behavior is necessary. See M21-1, Part III, 5.14(c); Patton v. West, supra at 280. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (old and new versions); Gilbert v. Derwinski, supra. ORDER 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.