Citation Nr: 0811100 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 95-32 324 ) 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 C. C. Dale, Associate Counsel INTRODUCTION The veteran had active duty service from March 1970 to May 1974 and January 1976 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1995 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board in a September 2003 remand for additional development. Such development has been completed and the case is ready for appellate review. FINDING OF FACT PTSD is not causally or etiologically related to service. CONCLUSION OF LAW The criteria for the establishment of service connection for PTSD have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the claim, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify a claimant and his representative, if any, of the information and evidence needed to substantiate a claim. This notification obligation was accomplished by way of letters from the RO to the veteran dated in August 2001, February 2004, and June 2005. These letters effectively satisfied the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate the claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran provide any evidence in his possession that pertains to his claim. The claim is being denied on the fundamental basis that the veteran has not provided, and the record does not show, any information to support the veteran was exposed to qualifying stressors in service - a requisite finding for a grant of service connection for PTSD. In its September 2003 remand, the Board briefly noted the veteran's contentions as to claimed combat service, relevant evidence of record, including the fact that there was no substantiation of the claimed stressors. The remand specifically directed that the veteran be contacted and requested to provide further information as to the claimed stressors that could be used to research his claim. In compliance with the Board's directive, a February 2004 letter requested that the veteran provide detailed information as to his claimed stressors. To assist him in this effort, the RO provided the veteran with a questionnaire. The veteran provided no response to this letter, as he failed to respond to a November 2003 letter by the RO requesting the same information. By failing to respond to VA's effort to assist him, the veteran has effectively foreclosed all further development into his claim. While the VA is obligated to assist a claimant in the development of a claim, there is no duty on the VA to prove the claim. If a claimant wishes assistance, he cannot passively wait for it in circumstances where he should have information that is essential in obtaining the putative evidence. Wamhoff v. Brown, 8 Vet. App. 517 (1996); Wood v. Derwinski, 1 Vet. App. 190, reconsidered, 1 Vet. App. 406 (1991). Further, under the law, a claimant for VA benefits has the responsibility to present and support the claim. 38 U.S.C. § 5107(a). The veteran was not provided notice of how VA assigns disability ratings and effective dates that complies with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, the denial of the claim in the instant decision makes the notification error non-prejudicial. Second, VA has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. The service medical records and personnel records are associated with the claims file. Additionally, the veteran was afforded a VA examination in connection with his claim. The veteran and his representative have not made the RO or the Board aware of any outstanding evidence that needs to be obtained in order to fairly decide his claim. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. Analysis The veteran alleges that he has PTSD, which was caused by stressors during active duty service. Having carefully considered the record, the Board finds that the evidence does not contain credible supporting evidence to verify the veteran's alleged stressors. Thus, the veteran's claim for service connection for PTSD will be denied. Service connection will be granted if it is shown that a veteran has a disability resulting from an injury diagnosed or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an inservice incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the inservice disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. Cohen v. Brown, 10 Vet. App. 128 (1997). The diagnostic criteria, including those related to stressors, set forth in The American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV) for mental disorders have been adopted by the VA. 38 C.F.R. § 4.125. A diagnosis of PTSD requires exposure to a traumatic event and a response involving intense fear, helplessness, or horror. A stressor involves exposure to a traumatic event in which 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 self or others and the person's response involved intense fear, helplessness, or horror. See Cohen v. Brown, 10 Vet. App. 128 (1997). The sufficiency of a stressor is a medical determination and is presumed by a medical diagnosis of PTSD. Id. The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy" as established by official records. If VA determines that the veteran engaged in combat with the enemy and an alleged stressor is combat-related, then the veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required providing that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Dizoglio v, Brown, 9 Vet. App. 163, 164 (1996); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). For stressors unrelated to combat, credible supporting evidence is necessary in order to grant service connection. "Credible supporting evidence" of a noncombat stressor may be obtained from service records or other sources. Moreau v. Brown, 9 Vet. App. 389 (1996). The United States Court of Appeals for Veterans Claims (Court) has held that the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor." Dizoglio v. Brown, 9 Vet. App. 163 (1996). Therefore, the veteran's lay testimony is insufficient, standing alone, to establish service connection. Cohen, 10 Vet. App. at 147 (citing Moreau, 9 Vet. App. at 395). The veteran is not shown to have served in combat. His military occupational specialty was that of Stock Clerk, and he is not the recipient of any combat-related awards or decorations. Thus, credible supporting evidence of the stressor is required. Cf. 38 U.S.C.A § 1154(b) (Providing in substance that in the case of veterans of combat, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary); see 38 C.F.R. § 3.304(d). At the August 2003 VA examination, the veteran reported that he was stationed on a riverboat that patrolled the rivers of Vietnam. During patrol, the veteran stated that his riverboat was subject to repeated enemy fire and that while on the riverboat, he was exposed to wounded soldiers being transported from combat lines. Apart from this bare assertion, however, the veteran has provided no information to assist VA in the development of his claim, having been requested to do so in November 1993 and February 2004. There is no evidence to substantiate that the veteran was exposed to the claimed stressor, or indeed that such stressor occurred. The veteran's service medical records do not show any psychiatric complaints or treatments. Nor is the veteran's account of the claimed stressor substantiated by other evidence of record. While the veteran has been diagnosed to have PTSD, the diagnosis in and of itself is not sufficient to grant the claim, absent evidence of a qualifying stressor. For example, an August 2003 VA examination report reflects a PTSD diagnosis based on the veteran's self reported history. However, it is well-settled law that the explicit or implicit opinion of the physician that the veteran is truthful is not necessarily probative as to the facts of the account. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). Moreover, while a physician is competent to render medical opinions, such competence does not extend to the factual underpinnings of the opinion. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant); see also Jones (Stephen) v. West, 12 Vet. App. 383 (1999); (where a veteran with service-connected PTSD sought service connection for the residuals of a broken leg, sustained in a motorcycle accident. His treating physician opined that "thrill seeking behavior," typical in PTSD patients, in part had caused the veteran's recklessness. However, evidence was of record indicating that the veteran had told police officers and bystanders immediately after the accident that he had exercised care when riding his motorcycle, and that a car struck him as he was attempting to negotiate a turn. The Court found the physician's opinion not sufficient to well- ground the claim under then applicable law, because although the veteran was competent to testify as to the sequence of events of the accident, the physician was not an eyewitness to the accident, so that any opinion regarding what actions or sequence of events caused the accident was outside the scope of his competence. Id. at 386). The RO attempted to verify the alleged stressor through a Joint Services Records Research Center (JSRRC) search, based on information of record. JSRRC correspondence, dated September 2007, reflects that it could not confirm that the veteran was assigned to a riverboat that was attacked based on the information provided by the veteran. The veteran's personnel records are also available. However, there is no information within them to verify the alleged incident. The Board finds that there is no credible supporting evidence to document the veteran's alleged in-service stressors. The veteran was advised in a February 2004 letter from the RO to him that the RO would assist him in obtaining evidence, but that it was still his responsibility to support his claim with appropriate evidence. The Board finds that the RO has done everything feasible to assist the veteran by obtaining a JSRRC search, service medical records, VA treatment records, and personnel records. However, none of these records provides credible supporting evidence to document the veteran's alleged in-service stressors. Without credible supporting evidence for the veteran's allegations of in- service stressors, the veteran's claim for PTSD is denied. 38 C.F.R. § 3.304(f) (2007). ORDER Service connection for PTSD is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs