Citation Nr: 0810663 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 05-03 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nancy Rippel, Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. The veteran is not shown to have developed PTSD as a result of a stressor event verified by credible supporting evidence as having occurred in service. CONCLUSION OF LAW PTSD was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") have been fulfilled by information provided in correspondence to the veteran dated in November 2003 and October 2004. The letters notified the veteran of VA's responsibilities in obtaining information to assist in completing his claim, identified his duties in obtaining information and evidence to substantiate his claim, and requested that he send in any evidence in his possession that would support his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). In January 2005, the veteran's representative informed VA that he had no additional information or evidence to submit. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. A specific letter outlining these requirements was not sent to the veteran. Any deficiency in the initial notice to the veteran of the duty to notify and duty to assist in claims involving a disability rating and an effective date for the award of benefits is harmless error, as this claim is being denied. The Board finds that further attempts to obtain additional evidence would be futile. The veteran was asked for specific information related to stressor verification in the November 2003 and October 2004 RO letters. In November 2003, the RO sent him a PTSD stressor survey and asked that he return it providing details such as dates, places and circumstances of his stressors to allow for verification. The veteran responded in December 2003 that his medical records contained enough information to verify his stressors so he would forgo completing the PTSD survey. His service 201 file has been obtained. The Board does note the veteran's contention in his VA Form 9 that the RO attempt to verify his stressors through U.S. Army and Joint Services Records Research Center (JSRRC) (formerly, the U.S. Armed Services Center for Unit Records Research (CURR)). However, based on the criteria that agency has set forth for records searches, the veteran has not provided sufficiently specific information as to dates, names and places to allow for a meaningful search. As to the medical aspect of this case, the available medical evidence is sufficient for an adequate medical determination. All identified medical records have been obtained. There has been no prejudicial error in the duty to inform the veteran. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007)). There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Law and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). Applicable regulations provide that service connection for PTSD requires medical evidence diagnosing 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. See 38 C.F.R. § 3.304(f) (2007). The evidence necessary to establish the occurrence of a stressor during service to support a claim for PTSD will vary depending on whether the veteran was "engaged in combat with the enemy." Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If the evidence establishes that the veteran was engaged in combat with the enemy or was a prisoner of war (POW), and the claimed stressor is related to combat or POW experiences (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. Where, however, the VA determines that the veteran did not engage in combat with the enemy and was not a POW, or the claimed stressor is not related to combat or POW experiences, the veteran's lay statements, by themselves, will be insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other credible evidence corroborating the stressor. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f) (2007); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). Such corroborating evidence cannot consist solely of after- the-fact medical evidence containing an opinion as to a causal relationship between PTSD and service. See Moreau, 9 Vet. App. at 396. Factual Background and Analysis The veteran filed his claim seeking service connection for PTSD in October 2003. The veteran has a diagnosis of PTSD, as reflected in VA medical clinic treatment records dated in October 2003 and thereafter. Additional treatment records showing treatment for heart disease since late 1992 and depression since 1993. The veteran's described duties in Vietnam were those of a supply specialist. The veteran's service personnel records, including DD Form 214, do not reflect on their face that he was engaged in combat in Vietnam. He was a stock supply specialist in Vietnam, but there is no award or decoration indicative of combat. He was in Vietnam from September 1966 to July 1967. He received the Vietnam Service Medal, the National Defense Service Medal, the Vietnam Campaign Medal with device, marksman badge (M-14) and one overseas bar. He has indicated, however; that his stressors involved moderate combat. He has reported his stressors in VA treatment and evaluation records. Specifically, in an October 2003 psychological assessment and evaluation, the veteran detailed stressors including seeing bodies of innocent women and children lined up. This made him go all to pieces because he felt the war was unjust. He reported that he was trained as a supply clerk and he drove supply convoys. During this October 2003 evaluation, the veteran reported that he routinely had distressing nightmares and intrusive thoughts and recollections of the sights of these dead bodies and the smell of death and decay of human remains. He no longer cared for fishing or hunting. The evaluation yielded the initial diagnosis of PTSD, chronic and major depressive disorder, recurrent. The summary and recommendations reflects that the PTSD was a result of his exposure to trauma while service in Vietnam. Additional VA treatment records dated in 2004 show that the veteran continued to be treated for PTSD and depression. In July 2004, the veteran sent information showing that his unit, the 96th Service and Supply Battalion, supported the 504th Supply Depot at Cam Ranh Bay from June 1966 to September 1968. He also submitted information regarding counteroffensives taking place in Vietnam while he was there. The record on its face does not show that the veteran engaged in combat with the enemy. The record must contain, therefore, service records or other credible evidence corroborating the stressor. However, VA has been unable to verify the alleged stressors. The information provided by the veteran in his treatment records and in his communications with VA, described above, are not specific enough to be the basis of a meaningful search. The veteran has not provided any specific dates or names or circumstances to verify his alleged stressors. There is no information which could allow for a search to corroborate his story in archived military records by the JSRRC. The information regarding the veteran's unit and counteroffensives in Vietnam while he was there is general and does not show any specific stressor related by the veteran. The Board observes that the information does not serve as a source of verification for the veteran's alleged stressors, nor does it provide sufficient detail to undertake a meaningful search of his stressors. The Board observes that his actual personnel file lists no campaigns. Although informed of the need for more detail, the veteran has refused to provide additional information claiming that he has "layed the foundation for documenting my stressor." "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). Thus, the Board finds that the preponderance of the evidence is against a finding that there is a verified stressor to support the veteran's diagnosis of PTSD. The actual diagnosis of PTSD for VA purposes requires a stressor, and that is lacking. Again, the VA treatment records show an assessment of PTSD. The veteran has alleged that he has PTSD related to his Vietnam trauma experiences. None of the diagnoses or assessments of PTSD are based on a verified stressor. The Board notes that his diagnosis of PTSD in October 2003 was based in part on his characterization of himself as being involved in combat, which is not verified in the service records which reflect he was a supply clerk. The veteran does not have a diagnosis of PTSD based upon verified stressors. In this regard, the Board notes that the veteran has been found to have PTSD, yet the stressors were not verified, despite attempts to elicit information from the veteran to verify them, and the assessment was based upon the veteran's description of his stressors which actually are not verified. For VA purposes, a verified in-service stressor is needed in this claim. In the absence of any verified stressor, the veteran fails to satisfy a critical element of a claim for PTSD and his claim for service connection fails. See 38 C.F.R. § 3.304(f); Cohen, 10 Vet. App. at 137. The veteran has indicated his belief that he was definitely in stressful situations in the Vietnam. The issue in this case ultimately rests upon verified stressors and interpretations of medical evidence and conclusions as to the veteran's correct diagnosis and whether it is based upon the verified stressors. Corroborating evidence cannot consist solely of after-the-fact medical evidence containing an opinion as to a causal relationship between PTSD and service. See Moreau, 9 Vet. App. at 396. In the absence of proof that he was in combat, his lay statements alone cannot be sufficient proof of a stressor. 38 U.S.C.A. § 1154(b). His statements do not establish the required evidence needed, and the claim must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the veteran's claim. ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs