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