Citation Nr: 0810122 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-20 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Douglas J. Boorstein, Associate Counsel INTRODUCTION The veteran served on active duty from August 1969 to August 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for post-traumatic stress disorder (PTSD). Notice of the rating decision was issued in December 2004. On substantive appeal in June 2005, the veteran requested a hearing before the Board. He withdrew his hearing request by correspondence dated in July 2005. Thus, no further action in this regard is needed. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran did not engage in combat with the enemy. 3. The veteran's statements, without objective corroborating evidence, are insufficient to verify the actual occurrence of his alleged in-service stressors. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Decision The veteran seeks service connection for PTSD. Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304 (2007). In order for service connection to be awarded for PTSD, three elements must be present: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (2007); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f), 4.125(a) (2007); Cohen v. Brown, 10 Vet. App. 128 (1997). Regarding the first element, 38 C.F.R. § 4.125(a), refers to the American Psychiatric Associations' Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DMS- IV) as the source of criteria for the diagnosis of claimed psychiatric disorders. DSM-IV provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror. With respect to the second element, 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. See 38 C.F.R. § 3.304(f)(1). If the evidence shows that the veteran did not serve in combat with enemy forces during service, or if there is a determination that the veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 289 (1994). That is, the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Whether a veteran has submitted sufficient corroborative evidence of claimed in-service stressors is a factual determination. Pentecost v. Principi, 16 Vet. App. 124 (2002). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). After reviewing the evidence of record, the Board finds that service connection for PTSD is not warranted. At the outset, the Board notes that in 2004, the veteran received a medical diagnosis of PTSD, based on a history attributable to his military service. As such, there is medical evidence diagnosing PTSD and medical evidence of a link between current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f); see also, Cohen v. Brown, 10 Vet. App. 128 (1997). The crux of this case rests upon the presence of credible supporting evidence that the claimed in-service stressors actually occurred. In this regard, the Board notes that the veteran maintains that he was exposed to several in-service stressors. The veteran has indicated that while serving in Vietnam he drove a truck. He has indicated that his truck was "hit" several times a week. On other journeys, he indicated that he was "shot at." The veteran indicated he was robbed three times in Saigon by an individual with a homemade gun. The veteran also described seeing human ears on a chain around an individual's neck or wrist, or seeing a Viet Cong individual being interrogated. The Board acknowledges that the veteran's personnel records indicate that he served in Vietnam from August 1970 to March 1972. The Board notes however that the veteran did not engage in combat with the enemy. The fact that the veteran served in a "combat area," "combat zone," or under a "combat campaign" does not mean that he himself engaged in combat with the enemy. See Wood v. Derwinski, 1 Vet. App. 190 (1991); VAOPGCPREC 12-99. The service medical records are negative in this regard and the service personnel records are not indicative of combat. In fact, the veteran's DD 214 indicates that he served as a food service specialist and a subsistence supply specialist. While the veteran's DD 214 indicates that he received numerous medals, including a Meritorious Service Medal and Vietnam Service Medal with 3 Bronze Service Stars, the evidence to include the veteran's DD-214, medals and awards, do not indicate that he engaged in combat with the enemy. Given the foregoing, in order to substantiate the veteran's claims of experiencing the alleged in-service stressors, there must be independent evidence to corroborate his statements as to the occurrence of the claimed stressors. Doran, supra. As noted, the veteran's appellate assertions cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio, supra. There is no independent evidence of record to corroborate the occurrence of any of the veteran's alleged in-service stressors. In this regard, the service medical records are silent regarding any evidence of this psychological distress or injuries related to the claimed in-service stressors. During an examination in service, in January 1977, he was noted to be psychiatrically normal and on separation examination in July 1989, he was noted to be psychiatrically normal and he denied nervous trouble of any sort. Review of the post-service evidence of record also fails to independently verify the occurrence of any of the veteran's alleged in-service stressors. Rather, the record shows that the veteran was repeatedly asked to submit information to allow the RO to corroborate his stressor statements but he did not do so. The veteran indicated it was too painful. In January 2006, April 2007, and in May 2007, the RO found that based on the information provided by the veteran, it was not possible to verify the alleged stressors by contacting U.S. Armed Services Center for Unit Records Research. The veteran was apprised of such. In addition to the foregoing, the Board notes that the veteran's private medical reports do not confirm the occurrence of any in service stressor and the Social Security Administration reports are negative, too. More importantly, although the veteran's VA treatment reports show a diagnosis of PTSD and in 2004 that diagnosis was based on the veteran's history of experiencing traumatic in-service stressors, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of any claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 396 (1996). Thus, the medical reports are of no probative value. In this case, there is no independent evidence of record showing that the veteran was exposed to the asserted stressful events, or any other events involving intense fear, helplessness, or horror. The veteran has not provided adequate information about the circumstances of witnessing the alleged stressful event. In essence, the only evidence of record which indicates that the veteran's claimed stressor actually occurred consists of his own statements. These statements, without objective corroborating evidence, are of little or no probative value. As previously noted, the veteran's statements and assertions, alone, cannot establish the occurrence of a non-combat stressor. See Dizoglio, supra. As such, the Board finds the veteran's in-service stressors have not been verified; hence, there is no verified stressor present upon which a valid diagnosis of PTSD may be based. As such, a preponderance of the evidence is against the veteran's claim of entitlement to service connection for PTSD. The veteran's claim must be denied, and there is no doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and that (4) VA will request that the claimant provide any evidence in his possession that pertains to the claim. The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board concludes that the veteran has been afforded proper notice under the VCAA. The RO provided a VCAA notice letter to the veteran in July 2004, prior to the initial adjudication of the claim in December 2004. The VCAA letter notified the veteran of what information and evidence must be submitted by the veteran and what information and evidence would be obtained by the VA. The letter informed the veteran that he should submit any evidence in support of his claim. The letter included a PTSD questionnaire. The veteran did not complete this questionnaire, as he indicated it would be too painful. The RO then telephoned the veteran in January 2006 to ask the veteran to provide information necessary to support his claim. Despite being advised that the information currently before the RO was insufficient to grant his claim, the veteran indicated he had nothing further to provide. The Board notes that the duty to assist is not always a one-way street. If a veteran wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the absence of the veteran's cooperation in obtaining requested information and evidence, VA has no further obligations and must adjudicate the claim based on the evidence of record. 38 C.F.R. §§ 3.159(c), 3.655 (2007). To whatever extent the recent decision of the Court in Dingess v. Nicholson, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. As no disability rating is being assigned to the issue on appeal, any question as to disability rating and effective date is moot. The veteran has not been prejudiced. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has received the veteran's service medical records, other private medical records, and treatment records from VA. Assistance to the veteran shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). However, merely filing a claim for benefits and showing a current illness does not trigger these duties. VA's duty to provide a medical examination is not triggered unless the record contains competent evidence that the claimed disability began during service or within an applicable presumptive period, and evidence of an association between the claimed disability and that event, illness or injury in service. 38 U.S.C.A. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79, 80 (2006). However, the Board also notes that § 5103A only requires a VA examination when the record "does not contain sufficient medical evidence for the Secretary to make a decision on the claim." As the record in this case does contain sufficient medical evidence, the Board finds that a VA examination is not required for the veteran's PTSD. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been received. Therefore, no further assistance to the veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Entitlement to service connection for post-traumatic stress disorder is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs