Citation Nr: 0810470 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 03-25 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Associate Counsel INTRODUCTION The veteran served on active duty from June 1966 to June 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the benefits sought on appeal. The veteran testified before the Board at a hearing held at the RO in April 2004. When this case was before the Board in August 2005, it was remanded to the RO for further development. FINDING OF FACT The competent medical evidence does not demonstrate that the veteran currently has PTSD. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002), 38 C.F.R. §§ 3.303, 3.304, 4.125 (2007). REASONS AND BASES FOR FINDING 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. 2007); 38 C.F.R. § 3.159 (2007). 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). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice 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). Notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (2007). In September 2005, after the initial adjudication of the claim, the veteran was notified of the evidence not of record that was necessary to substantiate the claim. He was told that he needed to provide the names of persons, agency, or company who had additional records to help decide his claim. He was informed that VA would attempt to obtain review his claim and determine what additional information was needed to process his claim, schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. It was also requested that he provide evidence in his possession that pertained to the claim. In September 2006, the veteran indicated that he had no additional evidence to submit in support of his claim. There is no allegation from the veteran that he has any evidence in his possession that is needed for a full and fair adjudication of this claim. The veteran was given notice of what type of information and evidence he needed to substantiate a claim for an increased rating in September 2007 should his service connection claim be granted. It is therefore inherent in the claim that the veteran had actual knowledge of the rating element of an increased rating claim. Therefore, the Board finds that adequate notice was provided to the appellant prior to the transfer and certification of the veteran's case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, the statutes and regulations require that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA's duty to assist includes (1) obtaining records not in the custody of a federal department or agency; (2) obtaining records in the custody of a federal department or agency; (3) obtaining service medical records or other records relevant to active duty and VA or VA-authorized medical records; and, (4) providing medical examinations or obtaining medical opinions if necessary to decide the claim. 38 C.F.R. § 3.159(c). VA has a duty to obtain a medical examination if the evidence establishes (1) a current disability or persistent or recurrent symptoms of a disability, (2) an in-service event, injury, or disease, (3) current disability may be associated with the in-service event, and (4) there is insufficient evidence to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the veteran's service medical records and all identified and authorized post-service medical records relevant to the issue on appeal have been requested or obtained. Further, VA medical examinations pertinent to the claim were obtained in March 2001 and January 2007. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to this claim. In sum, the Board finds the duty to assist and duty to notify provisions have been fulfilled and no further action is necessary under those provisions. A claimant with active service may be granted service connection for a disease or disability either incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. Lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV), 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. § 4.125 (2007). VA considers diagnoses of mental disorders in accordance with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV). The DSM-IV criteria for a diagnosis of PTSD include: A) exposure to a traumatic event; B) the traumatic event is persistently experienced in one or more ways; C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness is indicated by at least three of seven symptoms; D) persistent symptoms of increased arousal are reflected by at least two of five symptoms; E) the duration of the disturbance must be more than one month; and F) the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. DSM-IV, Diagnostic Code 309.81. 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 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. 38 C.F.R. § 3.304(f) (2007). When the evidence does not establish that a veteran is a combat veteran, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his alleged service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). It is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). The record before the Board contains service medical records and post-service medical records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). The veteran claims that while serving as a coxswain in the Navy, he was exposed to stressors that support a PTSD diagnosis. Specifically, he claims that he had a near- drowning experience after falling into the water from a boat while stationed on the USS Shangri La (CVA-38). In correspondence dated in June 2000, the veteran explained that he was on boat duty one night and fell into the ocean. He stated that he was rescued by two crew members, was cold and wet, and had to remain in the boat until he was relieved from duty the next morning. He claims that the incident was reported by a coxswain to his Division Officer. He also identified the death of his best friend in Vietnam as a stressor. The veteran's service personnel records show that he served in the Navy with a military occupational specialty of boatswain's mate during the Vietnam era, but are negative for service in Vietnam. As a result of this service, he received the National Defense Service Medal, an award that is not indicative of combat in service. The veteran's service medical records, including the June 1965 enlistment and June 1968 separation examination reports, are void of findings, complaints, symptoms, or diagnoses attributable to PTSD or any other psychiatric disorder. VA medical records dated in May 1983 show that the veteran underwent a biofeedback evaluation for cognitive tension headaches. He indicated that he had an intense fear of drowning since his early childhood, which was exaggerated during his service following a near-drowning. He had nightmares about drowning. The diagnosis was drug and alcohol dependence, in remission. An August 1983 record shows that he was admitted in May 1983 for treatment of substance abuse. The records show that during his treatment he was cooperative and compliant, but was an angry man who chose to internalize his feelings. VA social work records dated in April 1986 reflect that the veteran's drug use began in service and that there was no history of depression or mental illness. He had experienced periods of depression since leaving service and expressed some suicidal ideation, but never made a full suicide attempt. However, he was very reckless with his own safety. He depicted himself as a person who became violent, rude, mean, and vicious when under the influence of drugs. VA medical records dated in October 1986 show that the veteran's speech was coherent. Thoughts were logical and he denied any delusions or hallucinations. Affect was flat and he denied depression. He had decreased concentration and poor judgment. He was diagnosed with multiple drug abuse and alcohol abuse by history. VA mental health records dated in August 2000 reflect that the veteran was treated for stress and anxiety. He stated that his depression, anxiety, and isolation were related to an orientation he was required to attend for work. In September 2000, he stated that he was assigned to small boat duty during service which made him anxious because he could not swim. While boarding the boat, he fell into the water and almost drowned. Since then he had nightmares about drowning which occurred more frequently when he was under stress. His symptoms included depression, nightmares, panic attacks, and episodes of anger. An October 2000 treatment record reflects that he was alert and oriented times three and was cooperative with no eye contact. He was able to carry on a conversation and denied hallucinations. He was socially isolated, uncomfortable with people, and was unable to trust anyone. He was easily agitated, but had no sleeping problems and his appetite was okay. He complained that news coverage of the USS Cole attack and the Kursk submarine accident had aroused his anxiety as both incidents involved water which reminded him of the incident in service. He underwent a VA mental disorders examination in March 2001. After reviewing the veteran's records, the examiner specifically noted that there was no previous diagnosis of PTSD. The veteran discussed the near-drowning experience after falling into the water from a boat in service. He explained that as a coxswain in the Navy, he was responsible for tying to the dock the small motor launch on which he was a crewman. On one occasion, he lost his balance and fell into the water. He was rescued by the crew, but because he was a non-swimmer, he had a panic attack. He believed that this incident and the resulting panic attack caused him to have PTSD. The veteran reported that he avoided contact with people, did not trust people, and felt that everyone wanted to hurt him. On examination, his affect was tense and eye contact was poor. He reported suicidal ideations, a history of hallucinations, sleep disturbance, and difficulty in making decisions about the future. The examiner found that the veteran exhibited some PTSD symptoms, including avoidance and hypervigilance, but that he lacked all of the symptoms required for a full diagnosis of PTSD. That is, he did not meet the DSM-IV criteria. The examiner determined that the appropriate diagnosis for the veteran was major depression, severe and recurrent, with anxiety complicated by a history of polysubstance abuse. VA medical records dated in August 2001 show that the veteran's symptoms included isolation, depression, and panic attacks. In October 2001, he described periods of anger and anxiety attacks. He stated that the events of September 11th vividly reminded him of his near-drowning in service. His condition was diagnosed as depressive disorder, NOS (not otherwise specified); panic disorder with agoraphobia; and polysubstance abuse in remission. Records dated in November 2001 show that he admitted to watching shows that depicted murders and other types of violence and that he became excited when watching them. As a result of life experiences involving real threats to his life in the military and other trauma, he continued to experience paranoia and lived constantly on the defensive due to fear. He admitted feeling great anger and distrust of the government. Records reflect treatment for depressive disorder, NOS; panic attacks with agoraphobia; a history of polysubstance dependence; and paranoid personality disorder. VA medical records dated in March 2002 show stated that recent events in Afghanistan involving the loss of soldiers triggered painful memories of the veteran's best friend dying in Vietnam. In April 2002, he was first diagnosed with PTSD in addition to depressive disorder, NOS; panic disorder with agoraphobia; personality disorder, NOS; and a history of polysubstance dependence. Records dated in June 2002 reflect treatment of PTSD; panic disorder with agoraphobia; personality disorder, NOS; and a history of polysubstance use in remission. He expressed feelings of sadness and depression, and was tearful at times. He stated that these strong negative feelings were triggered by news of the bridge collapse in Oklahoma, triggering vivid memories of his traumatic drowning experience in Vietnam. He was able to cope well with bouts of anxiety, but continued to complain about compulsive thinking that involved hurting others. During a mental status examination, his affect remained restricted but he smiled more often and eye contact was better. Mood was described as okay, but moderate anxiety existed. Insight was improving while judgment was fair. Cognition was grossly intact. His condition was diagnosed as anxiety/depression, NOS; PD (personality disorder), NOS; and polysubstance abuse in remission. Records dated in July 2002 show that he randomly attacked another man on the street and engaged in physical assault. VA medical records dated in January 2003 show that the veteran's affect remained restricted, but he smiled more readily and was more open. Eye contact was better. His mood was reported as stressed and moderate anxiety persisted. Insight was improving while judgment was fair. Cognition was grossly intact. His condition was diagnosed as anxiety/depression, NOS; and personality disorder, NOS. In May 2003, his speech was goal-directed but he did not make any eye contact. He was diagnosed with a personality disorder, NOS. VA medical records dated in June 2003 show that the veteran was able to manage work, continued having nightmares, and was self-isolating. He stated he did not feel like hurting himself or others and did not trust people in general. His affect remained restricted. His anxiety level was of moderate severity and his mood was reported as stressed, anxious, and tense. Insight was improving and judgment was fair. Cognition was grossly intact. VA medical records dated in February 2004 show diagnoses of anxiety/depression, NOS (PTSD); personality disorder, NOS; and polysubstance dependence in remission. He complained of continued nightmares and self-isolation, but felt comfortable. During a mental status examination, affect was poor. His mood was reported as stressed, anxious, and tense. Insight was improving while judgment was fair. Cognition was grossly intact. Pursuant to the Board's August 2005 remand, the veteran underwent a VA mental disorders examination in January 2007 that was performed by the VA psychologist who had treated him since September 2000. He reported that when he was helping to maneuver boats he fell overboard, and emerged from the water a different person. He indicated that he was a non- swimmer and was terrified. He thought that he died after the incident after which he was real violent and aggressive. He reported that he underwent surgery for neck carbuncles during service and that the government had implanted a radio transmitter inside his head during the operation. He stated that he was attracted to any incidence of a violent nature both in the newspaper and on television. He indicated that he had feelings of wanting to hurt others, but tried to avoid people when he had these feelings. The examiner noted that he had been treated at VA for psychiatric disorders, including PTSD. He reported that he had panic attacks three to four times per week; felt depressed most of the time; was angry and irritable most of the time; had no real interest in anything; and had difficulty with his memory and concentration. He also had nightmares about the drowning. On examination, he was anxious during the interview and avoided eye contact. Speech was hesitant and he avoided some of the examiner's questions. Towards the examiner, he was suspicious, seductive, guarded, and apathetic. He did not trust people or the government. Affect was constricted and blunted. Mood was depressed and dysphoric. He was oriented to person and place, but not to time. His thought process was unremarkable. With respect to thought content, he was largely preoccupied with how he felt the government had affected his life in a bad way. He felt that his problems were all related to falling overboard in service and the problems with an operation to his neck. Regarding judgment, he partially understood the outcome of his behavior. With regard to insight, he partially understood that he had a problem. Sleep was impaired by nightmares and he was irritable during the day. He had persistent auditory hallucinations and delusions. He had homicidal thoughts and ignored the voices telling him to hurt people. He had no suicidal thoughts. Impulse control was fair, but he had episodes of violence. Remote, recent, and immediate memory were impaired. His condition was diagnosed as depression, NOS; anxiety disorder, NOS; panic disorder; and polysubstance abuse in prolonged admission. The examiner explained that he appeared to suffer from some symptoms related to the near- drowning experience during service. He experienced anxiety, angry outbursts, irritability, nightmares, avoidance of people, and avoidance of situations. He also reported auditory hallucinations and persecutory ideas. However, the examiner opined that he did not display the full range of symptoms associated with PTSD. The examiner further opined that a long history of polydrug abuse and alcohol abuse had likely exacerbated his existing psychological problems. Pursuant to the Board's August 2005 remand, VA obtained the veteran's service personnel records. In correspondence dated in September 2005, VA also requested that the veteran provide additional details concerning his PTSD stressors. However, he only provided additional copies of VA medical records that were previously of record. VA requested verification of the veteran's near-drowning from the United States Army & Joint Services Records Research Center (JSRRC) which in March 2006 and April 2006 replied that a valid stressor was not provided for the JSRRC to research. VA then requested copies of the USS Shangri-La's deck logs from the National Archives which in April 2007 sent a negative reply that the request exceeded the one-hour search that they conduct. In correspondence dated in April 2007, VA again asked the veteran to provide more detailed information regarding his stressors, but none has been provided. VA was unable to verify the veteran's stressors because he did not provide relevant information with sufficient specificity about the claimed stressors capable of verification. With respect to the veteran's claim that he had painful memories of his best friend dying in Vietnam, the service personnel records do not show that the veteran served in Vietnam. Furthermore, that alleged stressor is unverified. Since the veteran's stressors are unverified, these stressors cannot support a grant of service connection for PTSD. 38 C.F.R. § 3.304(f). Additionally, no medical professional has diagnosed PTSD pursuant to DSM-IV and related that diagnosis of the death of a friend in Vietnam. The Board concludes that service connection for PTSD is not warranted. The Board finds that the veteran did not engage in combat with the enemy during his service. He also did not provide stressors capable of verification. Most importantly, he does not currently have a diagnosis of PTSD that complies with DSM-IV and the weight of medical evidence does not establish a link between current symptomatology and the in- service stressors. While the VA medical records show that he was treated for PTSD in the past, none of these treatment records relate the veteran's past PTSD to his service. In addition, March 2001 and January 2007 VA examination reports show that the veteran exhibited only some symptoms of PTSD. The examiners found that a diagnosis of PTSD was not warranted. The weight of evidence demonstrates that the veteran does not currently suffer from a mental disorder that meets the requirements of 38 C.F.R. § 4.125 and DSM-IV for a diganosis of PTSD. In addition, the medical evidence does not relate any of the veteran's current psychological disorders to his service. The Board recognizes the veteran's contentions as to the diagnosis and relationship between his service and the claimed disability. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). As a layperson, however, he is not competent to provide an opinion requiring medical knowledge, such as a diagnosis, or an opinion relating to medical causation and etiology that requires a clinical examination by a medical professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). As a result, his assertions do not constitute competent medical evidence that he currently has PTSD. Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C.A. § 1110. In the absence of proof of a present disability, there can be no valid claim. The Board's perusal of the record in this case shows no competent proof of present diagnosis of PTSD, the disability for which benefits are sought. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In the absence of evidence showing a current diagnosis of PTSD, service connection cannot be granted. 38 C.F.R. § 3.304(f). In addition, even were PTSD currently diagnosed, the evidence does not show that any of the veteran's claimed stressors have been objectively verified. Therefore, any diagnosis of PTSD would be based upon unverified stressors and solely on the subjective account of the veteran. The Board is not bound to accept medical opinions that are based on history supplied by the veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim and service connection for PTSD is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs