Citation Nr: 0810378 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-13 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Sylvia N. Albert, Associate Counsel INTRODUCTION The veteran had active service from April 1968 until December 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The veteran served in the Republic of Vietnam, but the competent evidence of record does not demonstrate that he engaged in combat with the enemy. 2. While competent medical evidence contains a diagnosis of PTSD, the probative evidence of record fails to independently corroborate the veteran's alleged in-service stressors. CONCLUSION OF LAW Post-traumatic stress disorder (PTSD) was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The VCAA applies in this case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Further regarding notice, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, February 2005 and March 2006 letters from the AOJ to the appellant satisfied VA's duty to notify. The initial letter informed the veteran of what evidence was necessary to establish entitlement to the benefit he claimed and advised him of his and VA's respective duties for obtaining evidence. He was told what VA had done to help his claim and what he could do to assist, and asked to provide any evidence in his possession that pertained to his claim. In addition, the second letter informed the veteran that a disability rating and effective date would be assigned in the event that he was awarded the benefit sought. Regarding the timing of notice, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was decided prior to the issuance of the second letter, which provided an updated and appropriate VCAA notice. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although some of the notice requirements were provided to the appellant after the initial adjudication, the appellant has not been prejudiced thereby. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only has the appellant been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Duty to Assist VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim. 38 U.S.C.A. § 5103A(a)(1) (West 2002). In this case, the claims file contains the veteran's service medical records and reports of VA and private post-service examinations. Additionally, the veteran's statements in support of his appeal are affiliated with the claims folder. VA's duty to assist also includes providing a VA medical examination when necessary to make a decision on the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). A medical examination is "necessary" if the evidence of record (lay or medical) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; and indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 U.S.C.A. §5103A(d)(2). In this case, the veteran was not provided an examination for his PTSD. The Board, after careful review of the claims folder, has found that such an examination is not "necessary" as defined by the statute. Here, the record contains evidence illustrating that the veteran has a current diagnosis of PTSD. However, the record lacks competent evidence to corroborate the veteran's statements as to the occurrence of in-service stressors. Thus, the only evidence in the record supporting the premise that the veteran's diagnosed PTSD is linked to service is the veteran's own statements. The Court has held that, where the supporting evidence of record consists only of a lay statement, VA is not obligated, pursuant to 5103A(d), to provide an appellant with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004). The Board is thus of the opinion that providing the veteran with an examination is not necessary, and no reasonable possibility exists that with such assistance this claim could be substantiated. See 38 U.S.C.A. § 5103A. The Board is of the opinion that all available evidence that could substantiate the claim has been obtained based on previous search attempts. In view of the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed, and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his appeal. Hence, VA's duty to assist the veteran in the development of his claim has been satisfied. Legal Criteria Service connection will be granted if the veteran shows he has a disability resulting from an injury incurred or a disease contracted in service, or for aggravation of a pre- existing injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection will also be approved for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a), 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. 38 C.F.R. § 3.304(f) (2007). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition 1994 (DSM-IV). Further relating to claims of service connection for PTSD, in Zarycki v. Brown, 6 Vet. App. 91 (1993), the Court set forth the analytical framework and line of reasoning for determining whether a veteran was exposed to a recognizable stressor during service, which, as discussed above, is an essential element in solidifying a claim for service connection for PTSD. In Zarycki, it was noted that, under 38 U.S.C.A. §1154(b); 38 C.F.R. 3.304(d) and (f), and the applicable provisions contained in VA Manual 21-1, the evidence necessary to establish the incurrence of a recognizable stressor during service to support a claim of service connection for PTSD will vary depending on whether the veteran "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60 (1993). The determination as to whether the veteran "engaged in combat with the enemy" is made, in part, by considering military citations that expressly denote as much. Doran v. Brown, 6 Vet. App. 283, 289 (1994). However, the Court has held that the Board may not rely strictly on combat citations or the veteran's military occupational specialty to determine if he engaged in combat; rather, other supportive evidence of combat experience may also be accepted. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); West v. Brown, 7 Vet. App. 70, 76 (1994). If combat is affirmatively indicated, then the veteran's lay testimony regarding claimed combat-related stressors must be accepted as conclusive as to their actual occurrence and no further development or corroborative evidence will be required, provided that the veteran's testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of such service." Zarycki, 6 Vet. App. at 98. If there is no combat experience, 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, 6 Vet. App. at 288-89 (1994). The veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor. Dizoglio, 9 Vet. App. at 166 (1996). Further, an opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of a stressor. Moreau v. Brown, 9 Vet. App. at 395-96 (1996); Cohen v. Brown, 10 Vet. App. 128 (1997). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Analysis The veteran asserts that service connection is warranted for PTSD. The veteran contends that, while he might have been 'just a truck driver,' he had to fight like everyone else.' His job was to get supplies delivered any way he had to. He attests that he killed people and picked up bodies 'every day.' The veteran reports that he cannot remember dates, places, or names. While the veteran's service personnel records confirm that he served in Vietnam from December 1968 until December 1969, a review of the official military documentation contained in his claims file is unremarkable for evidence suggesting he affirmatively engaged in combat activity against enemy forces, as contemplated by VA regulations. His DD Form 214 does not reflect that he received any decorations or medals indicative of involvement in combat. Service personnel records indicate that the veteran's military occupational specialty (MOS) was an auto mechanic. The record also does not demonstrate that the veteran was wounded in combat during his service in Vietnam, nor has he alleged receiving any medals indicative of this type of service. Consequently, the evidentiary presumption of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f) does not apply. See VAOPGCPREC 12-99. Therefore, any alleged stressors in service must be independently verified, i.e., corroborated by objective credible supporting evidence. Additionally, the RO repeatedly attempted to obtain more information regarding the veteran's alleged stressors. In April 2005 and April 2006 responses from the veteran to VA requests for additional information, the veteran stated that he could not provide any more detailed information. The veteran has therefore not provided sufficient information regarding these alleged events, such that VA can effectively request confirmation of the alleged stressor events from official repositories of military records. In short, the veteran's personnel records do not support any of the veteran's assertions regarding the events during his military service. See 38 C.F.R. § 3.303(a) (service connection requires that the facts "affirmatively [show] inception or aggravation . . . ."). Therefore, in the absence of any evidence to the contrary, the Board concludes that that there is no independent evidence to corroborate the veteran's statements as to the occurrence of his claimed stressors. With respect to a current PTSD diagnosis, March 2006 treatment records from VAMC Poplar Bluff, Missouri contain a diagnosis of PTSD under Axis I. As such, the Board finds medical evidence of a current PTSD diagnosis. However, the records do not indicate what information was relied on to make such a diagnosis. In addition, a diagnosis based on the veterans asserted stressors cannot be relied upon because it would be based on unverified stressors. The Board is not bound to blindly accept a diagnosis of PTSD based on unconfirmed history as reported by the veteran. See Swann v. Brown, 5 Vet. App. 229, 232-33 (1993) (where a veteran's alleged stressors are uncorroborated, the Board is not required to accept a recent diagnosis of PTSD as being the result of the veteran's service). The question of whether he was exposed to a stressor in service is a factual determination, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). In sum, whether the evidence establishes the occurrence of stressors is a question of fact for VA adjudicators, and whether any stressors that occurred were of sufficient gravity to cause or to support a diagnosis of PTSD is a question for medical professionals. Cohen, 10 Vet. App. at 137. In conclusion, the Board finds that the competent evidence of record fails to establish that the veteran has PTSD that is related to his active military service. In the absence of an independently confirmed in-service stressor, the Board finds there is no basis for granting service connection for PTSD. As such, the negative evidence of record is of greater probative value than the veteran's statements in support of his claim. The Board has considered the doctrine of giving the benefit of the doubt to the veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2007), but does not find that the evidence is of such approximate balance as to warrant its application. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for PTSD. ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs