Citation Nr: 0711508 Decision Date: 04/18/07 Archive Date: 05/01/07 DOCKET NO. 03-21 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The veteran served on active duty from January 1969 to January 1971, to include service in the Republic of South Viet Nam. The appeal comes before the Board of Veterans' Appeals (Board) from a June 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which determined that new and material evidence had not been submitted to reopen a previously denied claim of entitlement to service connection for PTSD. In January 2004, the veteran presented testimony at a hearing conducted at the Board before a Veterans Law Judge (VLJ). A transcript of this personal hearing has been associated with the veteran's claims folder. Subsequently, in June 2004, the Board reopened the claim and remanded the case for PTSD for further evidentiary development. In August 2006, the case was returned to the Board. Thereafter, in a December 2006 letter, the Board notified the veteran that the VLJ who had conducted the January 2004 personal hearing no longer worked at the Board. Because the law requires a VLJ who conducts a hearing on appeal to participate in any decision made on that appeal, the veteran had a right to present testimony at another hearing before a current VLJ. Consequently, the Board asked the veteran to clarify whether he desired to have another personal hearing before a current VLJ in Washington, D.C., at the RO, or via videoconferencing or whether he declined any additional hearing. The veteran was told that if he did not respond to the request for clarification within 30 days from the date of the letter, the Board would proceed to adjudicate his claim. The veteran failed to clarify whether wanted a new hearing. As such, the Board will proceed to consider the veteran's claim for service connection based upon the evidence currently of record. FINDINGS OF FACT 1. The veteran did not engage in combat with the enemy while serving on active duty. 2. The veteran does not have a verified in-service stressor. 3. The preponderance of the evidence is against finding that the veteran has PTSD due to his military service. CONCLUSION OF LAW PTSD was not incurred or aggravated as a result of military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304(f). (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., evidence of veteran status; existence of a current disability; evidence of a nexus between service and the disability; the degree of disability, and the effective date of any disability benefits. The veteran must also be notified to submit all evidence in his possession, what specific evidence he is to provide, and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record, and in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In this case, there is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in June 2004 and March 2006 correspondence, amongst other documents considered by the Board, generally fulfills the provisions of 38 U.S.C.A. § 5103(a), save for a failure to provide notice addressing the type of evidence necessary to establish a disability rating and an effective date for the disability on appeal. The claim was readjudicated in an August 2006 supplemental statements of the case. The failure to provide notice of the type of evidence necessary to establish a disability rating and an effective date for PTSD is harmless because the Board has determined that the preponderance of the evidence is against the claim. Hence, any questions regarding what rating or effective date would be assigned are moot. The Board acknowledges that under 38 U.S.C.A. § 5103(a), notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, any error was cured by providing notice and readjudicating the claim. The veteran has been afforded a meaningful opportunity to participate in the adjudication of his claims, to include the opportunity to present pertinent evidence and testimony. Thus any error in the timing was harmless, the appellant was not prejudiced, and the Board may proceed to decide this appeal. Simply put, there is no evidence that any VA error in notifying the appellant that reasonably affects the fairness of this adjudication. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). VA has secured all available pertinent evidence and conducted all appropriate development. The RO was able to obtain the appellant's service personnel records and post service psychiatric treatment records. The June 2004 Board Remand attempted to gather additional information to support the claim; however, the appellant did not respond to several letters from VA asking him for additional stressor evidence needed to verify his assertions. There is no pertinent evidence which is not currently part of the claims file. Hence, VA has fulfilled its duty to assist the appellant. Criteria Service connection will be granted if it is shown that the appellant suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For PTSD claims, service connection requires medical evidence establishing a 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. 38 C.F.R. § 3.304(f). If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Background The veteran's service medical records are negative for complaint or treatment related to psychiatric problems, including PTSD. The veteran's service personnel records and his DD Form 214 reveals that he served as a cook and was stationed in the Republic of Viet Nam, from April 1970 to January 1971. He did not receive any awards which are indicative of combat service. While he asserts that he engaged in combat with the enemy, the service records do not support this claim. A September 1983 VA psychiatric examination concluded that the veteran did not have PTSD but he was diagnosed with mild mental retardation. A May 2000 VAMC initial psychological assessment noted the veteran was homeless and lived at the Vet Center. Based on the veteran's self reported history the examiner diagnosed: polysubstance abuse; history of alcohol abuse; organic brain damage secondary to substance abuse; significant short and long-term memory loss, drug impaired. An August 2001 VAMC Vet Center report diagnosed polysubstance abuse; borderline intellectual functioning, and PTSD. In a January 2002 stressor letter, the veteran reported being stationed at Soc Trang, Viet Nam with the 221st Aviation Company in 1970 to 1971. He reported being continually exposed to extreme traumatic stress. His base camp was attacked by rocket and mortared many times. He noted that these intense experiences had been the cause of his ongoing problems since then. He reported continuous nightmares, flashbacks, and other symptoms. A VA examiner in February 2002 noted that, ".. it seems that [the veteran's] principal difficulty has been alcohol and substance abuse, but now that the substance abuse has been in remission, the PTSD may be a viable diagnosis." In April 2002 the U.S. Armed Service Center for Unit Records Research (USASCRUR) advised that stressor information provided by the veteran was insufficient. In an April 2003 letter, a Vet Center clinical psychologist advised that the veteran was suffering from PTSD which was directly related to experiences in military service. At the January 2004 Board hearing the veteran presented a written stressor statement which he read as testimony. He testified that while on guard duty he shot an enemy running away in the back; that while crossing a river by ferry boat he saw what the enemy had done to a village; that he saw a man lying on a stretcher with his head bashed in; and that he was tossed about by a mortar explosion which left him hearing impaired. The veteran also asserted witnessing a buddy severely burned by a gas bottle explosion. Following the June 2004 Board remand, the RO requested that the veteran submit a detailed statement of his stressors for verification. The RO sent several letters to the veteran but did not submit any verifiable stressor details. Analysis VA attempted to get a detailed stressor report from the veteran to submit to the National Personnel Records Center, the United States Armed Services Center for Unit Research, the United States Army, and any other logical source. Unfortunately, the appellant failed to provide VA with detailed stressor information, including any names or dates. The veteran claimed he was involved in combat and shot a fleeing enemy combatant. He also reported witnessing a destroyed village, and a friend being severely burned in a gas bottle explosion. None of these claims are independently verified. The records verify that he served as a cook. There is, however, no evidence supporting the claim that he was involved in any direct combat while in Viet Nam or that his unit came under attack while stationed in Soc Trang, Viet Nam. There is no evidence even remotely suggesting in- service combat experience. Therefore, there is no evidence that the claimant is a "combat veteran." Accordingly, his lay testimony regarding the claimed stressors cannot alone be accepted as conclusive evidence as to the actual existence of any of the claimed stressors. Although VA physicians have diagnosed the veteran with PTSD, the basis for these diagnoses is not shown to rely on an independently verified history of any in-service stressor. The Board may not grant service connection for PTSD in cases such as this without independent supporting evidence of the occurrence of the claimed stressors, and without evidence of that verified stressor being the basis for the diagnosis. Neither the evidence filed by the veteran nor any of the information obtained by VA verified any of the veteran's claimed stressors. Accordingly, because VA is not required to accept evidence that is simply information recorded by a medical examiner, the Board does not find that VA treatment records on file provide a basis to grant service connection. The Board recognizes that the veteran's own personal participation need not be strictly corroborated. See Suozzi v. Brown, 10 Vet. App. 307 (1997) (corroboration of every detail is not required to satisfy the 38 C.F.R. § 3.304(f) requirement that there be credible supporting evidence that the claimed stressors actually occurred). Nevertheless, despite efforts by VA to confirm the veteran's allegations, no evidence has been uncovered which verifies any of his assertions regarding an in-service stressor. Although VA healthcare providers have accepted the veteran's description of his in-service experiences as credible for diagnosing PTSD, the Board may not grant service connection for PTSD in cases such as this without independently verifiable evidence of the in-service occurrence of the claimed stressors. Given the lack of supporting evidence required by the law, the preponderance of the evidence is against the veteran's claim. Accordingly, entitlement to service connection for PTSD is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs