Citation Nr: 0806724	
Decision Date: 02/28/08    Archive Date: 03/06/08

DOCKET NO.  04-33 868	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUE

Entitlement to service connection for post-traumatic stress 
disorder (PTSD). 


REPRESENTATION

Appellant represented by:	AMVETS


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Francis, Associate Counsel


INTRODUCTION

The veteran served on active duty from July 1964 to August 
1967. 

This appeal comes before the Board of Veterans' Appeals 
(Board) from a July 2003 rating decision of a Department of 
Veterans Affairs (VA) Regional Office (RO) that denied 
service connection for post-traumatic stress disorder. 

The veteran testified before the undersigned Acting Veterans 
Law Judge sitting at the RO in Huntington, West Virginia in 
July 2007.  A transcript of the hearing is associated with 
the claims file. 


FINDINGS OF FACT

1.  The veteran did not serve in combat.  

2.  The veteran has been diagnosed with PTSD.  There is some 
medical evidence of a general link between the disorder and 
the military experiences reported by the veteran; however, 
there is no credible supporting evidence that the claimed in-
service stressors occurred. 

3.  The veteran's mental disorders diagnosed as major 
depression, explosive disorder, and PTSD first manifested not 
earlier than 1996 and are not related to any aspect of 
service.  


CONCLUSION OF LAW

The criteria for service connection for post-traumatic stress 
disorder have not been met.  38 U.S.C.A. §§ 1110, 1154 (West 
2002); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2007). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Upon receipt of a complete or substantially complete 
application, VA must notify the claimant and any 
representative of any information, medical evidence, or lay 
evidence not previously provided to VA that is necessary to 
substantiate the claim.  This notice requires VA to indicate 
which portion of that information and evidence is to be 
provided by the claimant and which portion VA will attempt to 
obtain on the claimant's behalf.  See 38 U.S.C.A. §§ 5103, 
5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 
(2006).  The notice must:  (1) inform the claimant about the 
information and evidence not of record that is necessary to 
substantiate the claim; (2) inform the claimant about the 
information and evidence that VA will seek to provide; (3) 
inform the claimant about the information and evidence the 
claimant is expected to provide; and (4) request or tell the 
claimant to provide any evidence in the claimant's possession 
that pertains to the claim, or something to the effect that 
the claimant should "give us everything you've got 
pertaining to your claim(s)."  Pelegrini v. Principi, 18 
Vet. App. 112 (2004).

Here, the RO sent correspondence in April 2003, which 
informed the veteran of the information and evidence required 
to substantiate the claim and which also informed him of the 
information and evidence VA was to provide and which the 
veteran was to provide.  While the letter did not explicitly 
ask that the appellant provide any evidence in his possession 
that pertains to the claim, he was advised of the types of 
evidence that could substantiate his claim and to ensure that 
VA receive any evidence that would support the claim.  
Logically, this would include any evidence in his possession.  

The notice requirements of 38 U.S.C.A. § 5103(a) and 38 
C.F.R. § 3.159(b) apply to the following five elements of a 
service connection claim: 1) veteran status; 2) existence of 
a disability; (3) a connection between the veteran's service 
and the disability; 4) degree of disability; and 5) effective 
date of the disability.  Accordingly, VA is to notify the 
veteran that a disability rating and an effective date for 
the award of benefits will be assigned if service connection 
is awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 
(2006).  In the present appeal, the veteran was not provided 
with a notice regarding the assignment of a rating and 
effective date.  However, the Board finds that this defect 
with respect to the notice requirement is harmless error.  
See Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  

The Board finds that any defect with regard to the content of 
the notice to the appellant is harmless because of the 
thorough and informative notices provided throughout the 
adjudication and because the appellant had a meaningful 
opportunity to participate effectively in the processing of 
the claims with an adjudication of the claims by the RO 
subsequent to receipt of the required notice.  There has been 
no prejudice to the appellant, and any defect in the content 
of the notice has not affected the fairness of the 
adjudication.  See Mayfield v. Nicholson, 19 Vet. App. 103 
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 
2006) (specifically declining to address harmless error 
doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 
(2006).  Moreover, as the Board concludes that the 
preponderance of the evidence is against the claim for 
service connection for PTSD, any questions as to the 
appropriate disability rating or effective date to be 
assigned are rendered moot.  Thus, VA has satisfied its duty 
to notify the appellant and had satisfied that duty prior to 
the adjudication in the February 2005 supplemental statement 
of the case.

VA has a duty to assist the veteran in obtaining evidence 
necessary to substantiate the claim. 38 U.S.C.A. § 5103A 
(West 2002); 38 C.F.R. § 3.159(c) (2005).  VA has obtained 
all relevant, identified, and available evidence and has 
notified the appellant of any evidence that could not be 
obtained.  Although VA has obtained the veteran's service 
medical records, his detailed service personnel records have 
not been obtained and are suspected of destruction in a fire.  
The veteran has not provided sufficient specific information 
regarding certain events in service that would make further 
attempts productive.  Where the service personnel records are 
lost and presumed destroyed the Board's obligation to explain 
its findings and conclusions and to consider carefully the 
benefit-of-the-doubt rule is heightened. See O'Hare v. 
Derwinski, 1 Vet. App. 365, 367 (1991); see also Marciniak v. 
Brown, 10 Vet. App. 198, 201 (1997) (Board complied with 
requirements set forth in O'Hare where heightened 
consideration was afforded due to the missing records), 
aff'd, 168 F.3d 1322 (Fed. Cir. 1998).

VA has obtained service medical examinations and records of 
periodic VA outpatient care.  VA is obligated to obtain an 
additional medical examination or opinion based on a review 
of the evidence of record if it is necessary to decide the 
claim.  Specifically, an examination is necessary if there is 
competent lay or medical evidence of a current diagnosed 
disability, establishes that the veteran suffered an event, 
injury, or disease in service, and indicates that the claimed 
disability may be associated with the event, injury, or 
disease.  38 C.F.R. § 3.159 (c) (4) (2007).   Here, the Board 
concludes that there is competent medical evidence of record 
of a current disability, but there is insufficient lay or 
medical evidence that establishes an event, injury, or 
disease in service.  Additional medical examinations would 
not provide information to verify the occurrence of events in 
service.  Thus, the Board finds that VA has satisfied both 
the notice and duty to assist provisions of the law.

The veteran served as a light vehicle driver and mechanic in 
U.S. Army units including non-combat service in Korea in 1965 
to 1966.  He contended that his PTSD is related to traumatic 
events in service when he was beaten by fellow soldiers.  

Service connection for PTSD requires medical evidence 
establishing a diagnosis of the condition in accordance with 
38 C.F.R. § 4.125(a) (i.e., the diagnosis must comply with 
the Fourth Edition of the Diagnostic and Statistical Manual 
of Mental Disorders, 1994 (DSM-IV)); credible supporting 
evidence that the claimed in-service stressor occurred; and a 
link, established by medical evidence, between current 
symptomatology and the claimed in-service stressor.  See 38 
C.F.R. §§ 3.304(f), 4.125; see also Cohen v. Brown, 10 Vet. 
App. 128, 140 (1997).  

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," as established by recognized 
military combat citations or other official records.  If, 
however, VA determines either that the veteran did not engage 
in combat with the enemy or that the veteran did engage in 
combat, but that the alleged 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 service records or other probative 
evidence supporting his allegations.  38 U.S.C.A. § 1154(b); 
38 C.F.R. § 3.304(f); see Zarycki v. Brown, 6 Vet. App. 91, 
98 (1993).   

The occurrence of an event alleged as the "stressor" upon 
which a PTSD diagnosis is based (as opposed to the 
sufficiency of the alleged event to cause PTSD) is an 
adjudicative determination, not a medical determination. Id. 

The veteran did not contend nor do service personnel records 
show that the veteran was in combat.  Therefore, verification 
of a stressor is required.  

The veteran's PTSD claim is based on an in-service personal 
assault.  Because personal assault is an extremely personal 
and sensitive issue, many incidents are not officially 
reported, which creates a problem of proof of the occurrence 
of the claimed stressor.  In such situations it is not 
unusual for there to be an absence of service records 
documenting the events the veteran has alleged.  Therefore, 
evidence from sources other than the veteran's service 
records may corroborate an account of a stressor incident.  

Specifically, the RO must consider all of the special 
provisions of VA Adjudication Procedure Manual M21-1 (M21-1), 
Part III, regarding personal assault. M21-1 notes that 
"personal assault is an event of human design that threatens 
or inflicts harm.  Examples of this are rape, physical 
assault, domestic battering, robbery, mugging, and stalking." 
M21-1, Part III, 5.14c. M21-1 identifies alternative sources 
for developing evidence of personal assault including private 
medical records, civilian police reports, reports from crisis 
intervention centers, testimonial statements from confidants 
such as family members, roommates, fellow service members, or 
clergy, and personal diaries or journals.  M21-1, Part III, 
5.14c(4)(a).  Where there is no indication in the military 
record that a personal assault occurred, alternative 
evidence, such as behavior changes that occurred at the time 
of the incident, might still establish that an in-service 
stressor incident occurred.  Examples of behavior changes 
that might indicate a stressor include: visits to a medical 
or counseling clinic or dispensary without a specific 
diagnosis or specific ailment; sudden requests that the 
veteran's military occupational series or duty assignment be 
changed without other justification; lay statements 
indicating increased use or abuse of leave without apparent 
reason; changes in performance or performance evaluations; 
lay statements describing episodes of depression, panic 
attacks, or anxiety with no identifiable reasons for the 
episodes; increased or decreased use or prescription 
medication; evidence of substance abuse; obsessive behavior 
such as overeating or under eating; increased interest in 
tests for HIV or sexually transmitted diseases; unexplained 
economic or social behavior changes; treatment for physical 
injuries around the time of the claimed trauma but not 
reported as a result of the trauma; breakup of a primary 
relationship.  M21-1, Part III, 5.14c(7)(a)-(o).  See also, 
38 C.F.R. § 3.304(f)(3) (2005); Patton v. West, 
12 Vet. App. 272 (1999) (holding that certain special M21-1 
manual evidentiary procedures apply in PTSD personal assault 
cases).

In a July 2007 Board hearing, the veteran stated that when he 
was in recruit training he was threatened and beaten by 
fellow soldiers to an extent that he required hospital care.  
He stated that after transfer to a unit in Korea, he 
continued to receive beatings from fellow and allied soldiers 
and was sent to the hospital several times for up to two 
weeks.  The veteran did not provide his unit assignment or 
approximate dates for the beatings or hospital treatment.  
However, his service medical records indicated that he was 
assigned to an artillery regiment for at least some portion 
of his tour of duty in Korea.  

In an August 2003 letter, another soldier stated that he had 
enlisted with the veteran in July 1964.  He stated that they 
received training at the same bases at approximately the same 
time, although in different units.  He stated that he saw the 
veteran infrequently but did notice a black eye and cut on at 
least one occasion.  He presumed that the injuries were 
sustained in a fight because the veteran had a small stature, 
was ill early in training, and other soldiers, particularly 
those of a different race, had picked on him.  He further 
stated that they did not serve together in Korea but that he 
had heard about the veteran's involvement in fighting and 
trouble in Korea.  

At his Board hearing, the veteran also stated that he had 
reported the harassment by other soldiers to his leaders but 
that no action was taken.  He stated that during service he 
had received non-judicial punishment on at least five 
occasions, one special court martial, and two general courts 
martial.  He stated that special court martial resulted in 
confinement for a month but the conviction was later 
reversed.  The veteran's Report of Transfer or Discharge, DD-
214, showed that the veteran received an honorable discharge 
at the end of his obligated service with 27 days of lost 
time.  The veteran did not provide his unit assignment, 
specific charges, or approximate dates for these disciplinary 
proceedings.   

Service medical records are silent for any symptoms, 
examination, or treatment for any psychiatric disorders or 
for any physical injuries in service.  The veteran was 
hospitalized for a month from August to September 1964 for 
treatment for pneumonia.  The remainder of his service 
medical records showed periodic treatment at training bases, 
at a dispensary and an evacuation hospital in Korea, and at a 
base in Virginia.  The treatment included respiratory 
infections and skin disorders but there was no evidence of 
even minor treatment for any physical trauma or psychiatric 
disorders.    

In October 1996, the veteran sought inpatient treatment for 
insomnia, depression, anxiety reactions, crying spells, 
feelings of social withdrawal, and decreased concentration.  
A VA examiner noted that the veteran had been urged to seek 
treatment by his spouse and by a judge after a repeat offense 
for driving while intoxicated.  The examiner noted the 
veteran's report of a history of violent temper all his life 
and that he had been disciplined in the service for 
insubordination and fighting.  The veteran did not mention 
any traumatic assaults in service but did report that he had 
been assaulted and injured on his face four years earlier and 
that he had been depressed since a friend was murdered in 
1987.  He did not report any intrusive thoughts, nightmares, 
avoidance behaviors or other symptoms related to events in 
service.  He acknowledged that he was unemployed and had a 
history of heavy alcohol abuse.  He also reported auditory 
hallucinations but no suicidal ideations.  After a week of 
inpatient treatment, the veteran was discharged with 
diagnoses of a single episode of major, severe depression, 
intermittent explosive disorder, and alcohol dependence and 
was prescribed medication.  

In a follow-up examination in January 1997, the same examiner 
noted some additional historical information, apparently 
provided by the veteran.  He noted that the veteran 
experienced an unsettled childhood and was involved in 
frequent physical fights with other boys.  The veteran's 
discipline in service was reportedly for insubordination, 
fighting, failure to report for duty, drinking on duty, and 
causing damage to a vehicle while under the influence of 
alcohol.  He reported experiencing depression since 1984 when 
his father died.  In 1988, the veteran was incarcerated for 
eight months for burglary.  The examiner noted additional 
symptoms including paranoid thoughts that someone was trying 
to kill him, homicidal ideations when intoxicated or angry, 
and auditory hallucinations.  He displayed an anxious and 
depressed mood.   However, the examiner did not discuss 
whether the symptoms were related to any specific events in 
service.  The examiner again diagnosed major depression, 
intermittent explosive disorder, and alcohol dependence and 
continued the medication. 

In September 2000, a VA contract examiner noted a review of 
the claims file that did not contain the veteran's service 
medical records at the time.  He summarized the previously 
noted history with some additional information, apparently 
provided by the veteran.  The veteran reported that while 
stationed in Korea, he did not get along with fellow soldiers 
of a different race and feared threats on his life.  He 
reported that he was in several altercations, slept with a 
weapon, and had nightmares of his fear of being harmed.  He 
did not report that he sustained any injuries in the 
altercations.  The examiner provided a detailed clinical 
assessment and diagnosed major depressive disorder with 
psychotic features and alcohol dependence.  He stated that 
the indicators of an explosive disorder were part of the 
depressive disorder.  The examiner commented that the 
depression was present while in service in Korea, but did not 
explain his conclusion or refer to any service information 
other than the veteran's reports.  He also stated that there 
was an impression of PTSD because the veteran believed he was 
threatened and as a result had related nightmares, avoidance 
behaviors, and hyperautonomic arousal.  He declined to 
provide a clear diagnosis of PTSD because he was not sure 
that the veteran had experienced an objective traumatic 
event.  

In a June 2002 annual comprehensive review, a VA psychiatrist 
noted that the veteran had received treatment at his PTSD 
clinic for some time.  He noted that the veteran had PTSD and 
a problem with alcohol abuse.  However, he provided no 
clinical comments or rationale for the PTSD diagnosis.  In 
August 2002, the veteran was admitted for inpatient 
psychiatric care at the same facility.  On admission, an 
examiner noted the veteran's reports of nightmares related to 
his military experiences.  The veteran also reported crying 
spells, feelings of hopelessness, problems with anger 
control, avoidance of crowds, hypervigilance, and decreased 
memory and concentration.  He reported feelings of guilt 
about unspecified things that he did in service and his 
current family situation.  He also reported being injured in 
combat in Korea and very heavy alcohol use.  He was not 
participating in an alcohol abuse treatment program or taking 
previously prescribed antipsychotic medication.  After a 
period of inpatient treatment for detoxification, the veteran 
left the facility prior to starting a preventive alcohol 
abuse program.  However, in September 2002, the PTSD clinic 
psychiatrist noted that he prescribed new medication and 
recommended a counseling program.  

In November 2002, the PTSD clinic psychiatrist noted a review 
of a three page document provided by the veteran that 
described what happened to him in service.  From the 
document, the psychiatrist noted that the veteran had been 
treated for pneumonia, was "mistreated quite a bit," saw 
allied and U.S. soldiers killing each other, being assigned 
punitive work in a morgue, and receiving courts martial 
punishment several times including 30 days confinement just 
prior to discharge for an incident when another man insulted 
him.  He had also been fined for damage to a vehicle while 
intoxicated.  The identity and source of this document with 
such variety of information is not clear, and the document 
has not been submitted to VA.  The veteran also reported that 
he had been "beaten up a bit" while in service.  The 
examiner commented that the PTSD was related to service.  The 
psychiatrist provided follow-up treatment in February 2003, 
August 2003, May 2004, and September 2004, noting continued 
irritability, nightmares, and flashbacks but without further 
comment on the relationship of the symptoms to events in 
service.  There are no records of attendance at an ongoing 
counseling program for PTSD or alcohol abuse.

In a September 2004 substantive appeal, the veteran stated 
that he had served in Vietnam as a truck driver and had 
witnessed many deaths and injuries and had been in traumatic 
fear of losing his life.  In August 2005, the veteran stated 
that the appeal was incorrect and that his PTSD was a result 
of being beaten by fellow soldiers in Korea.  

The Board concludes that service connection for PTSD is not 
warranted because there is no credible supporting evidence 
that the claimed in-service stressors actually occurred.  
Service medical records contain no evidence of claimed 
hospitalizations or even treatment for minor injuries from 
beatings.  Although service medical records identified his 
assigned unit in Korea, the veteran did not provide any 
dates, places, or persons involved in the claimed assaults so 
that a search of unit operating logs could be conducted.  The 
veteran's fellow soldier stated that he did not serve in the 
same unit as the veteran and did not serve at all in Korea.  
He stated that he saw the veteran once with minor injuries 
and had only heard about incidents of fighting.  He stated 
that he had observed incidences of racial discord and 
harassment, but none were described as traumatic events.  
There is no evidence that the veteran witnessed deaths of 
U.S. or allied soldiers in fights.

Regrettably, the veteran's service personnel records are not 
available.  The veteran did indicate that he received 
military discipline on several occasions including a period 
of incarceration.  However, these records would address 
charges for his misconduct.  Only one of several charges that 
the veteran reported to a medical provider was related to 
fighting.  Moreover, the character of his discharge as 
honorable indicates that he was not convicted of offenses at 
courts martial, and the discipline was likely non-judicial 
punishment for relatively minor offenses.  

The Board also notes that although the veteran's symptoms 
have been present since 1996, not all providers have 
concluded that the veteran has PTSD, referring instead to 
other mental health disorders such as depression and 
explosive disorders.  Furthermore, a link between current 
symptomatology and the claimed in-service stressor, 
established by PTSD clinic providers since 2000, was based 
only on the veteran's reports and a document not provided to 
VA.  None of the providers noted a review of the veteran's 
service medical records.  

Finally, the Board also places less evidentiary weight on the 
veteran's reports of beatings because of inconsistencies in 
his other reports of military service.  On several medical 
examinations, the veteran did not mention any traumatic 
events in service.  The veteran stated at a hearing that he 
had received hospital care in service after being beaten by 
other soldiers.  Service medical records showed hospital care 
for pneumonia with no mention of physical injuries.  On other 
occasions, the veteran reported that he had been in combat in 
Korea and in Vietnam.  However, service personnel records 
showed that he was not in combat or in Vietnam.  He also 
reported sighting allied soldiers shooting at each other but 
provided no dates or places that would permit further 
verification.  He acknowledged a long history of personal 
aggressive behavior starting prior to service and heavy 
alcohol use during and after service.  The Board acknowledges 
the heightened duty to apply the "benefit of doubt" when 
detailed service personnel records are not available.  
However, in this case available service records and post-
service medical reports showed inconsistencies in the 
veteran's description of events in service that reduced the 
probative value of his statements.   As there is no evidence 
of injury, requests for transfer, or counseling for emotional 
distress, the Board concludes that the veteran's reports of 
persistent beatings causing hospitalizations, emotional 
trauma, and constant fear for his life are inconsistent with 
the remainder of the record.  

The Board concludes that service connection for major 
depression and explosive disorder is not warranted because 
there is no competent medical evidence of symptoms of these 
mental disorders in service or earlier than 1996, nearly 
thirty years after service.  Examiners at that time noted 
post-service factors as relevant to the disorders.  

The weight of the credible evidence demonstrates that the 
veteran's current mental health disorders, diagnosed as PTSD, 
major depression, and explosive disorder,  first manifested 
many years after service and are not related to his active 
service.  As the preponderance of the evidence is against 
this claim, the "benefit of the doubt" rule is not for 
application, and the Board must deny the claim.  See
 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).

ORDER

Service connection for post-traumatic stress disorder is 
denied.  



____________________________________________
ROBERT C. SCHARNBERGER
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs