Citation Nr: 0811193 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-23 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to nonservice-connected pension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Eric S. Leboff, Counsel INTRODUCTION The veteran had active service from May 1966 until May 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Jackson, Mississippi. FINDINGS OF FACT 1. The evidence of record demonstrates a current diagnosis of PTSD; however the veteran's reported traumatic events in service are either unverifiable or do not constitute stressors under the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV). 2. The veteran served on active duty during the Vietnam era for a period of greater than 90 days and is shown to be permanently and totally disabled due to his disabilities. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. The criteria to establish entitlement to nonservice- connected pension benefits have been met. 38 U.S.C.A. §§ 1110, 1502, 1521, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.2, 3.3, 3.6, 3.102, 3.159 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. I. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2007). Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the veteran is claiming entitlement to service connection for PTSD. 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). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). Further, relating to claims of service connection for PTSD, in Zarycki v. Brown, 6 Vet. App. 91 (1993), the Veterans Claims 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 establishing 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), (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 non-combat 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. See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996); Cohen v. Brown, 10 Vet. App. 128 (1997). In the present case, the veteran has described several stressful in-service events. In an April 2005 statement, he explained that was stationed in a combat zone with the 1st Marines Air Wing in Chu Li, Vietnam, from December 1966 until December 1967. He stated that they were under constant rocket and mortar fire. He added that there were many planes shot down during that time period. He further explained that he helped to load dead bodies from one C-130 transport aircraft to another. He was overwhelmed by the smell and sight of the dead bodies. Also in his April 2005 statement, the veteran reported that his best friend was killed in 1967, near his duty station. In a later August 2005 statement, he explained that this friend, E.R., and he joined the Marines together and attended the same boot camp. However, the friend was sent to Vietnam and was killed by sniper fire after being in country for less than 24 hours. The veteran was still in Heavy Equipment training at that time, and had not yet begun his tour in Vietnam. The August 2005 statement further mentioned an incident in which a rocket hit a tent in the flight line area of his base in Da Nang. The veteran was away from the base and did not learn of the event until the following day. He believed that maybe 20 or 30 people had been killed, but was uncertain of this and he did not remember the names of any casualties. The Board again notes that, 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 his 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. The evidence of record does not support the conclusion that the veteran engaged in combat with the enemy. Indeed, his DD-214 does not reveal any awards or decorations indicative of combat. Moreover, his duty assignments in Vietnam as "Engr Equipment Mech/Operator," with a civilian equivalent of truck mechanic do not establish that he engaged in combat with the enemy. It is acknowledged that "conclusive evidence" of combat participation may also be established by "other supportive evidence" that the claimant was in a plane crash, ship sinking, explosion, rape or assault, or duty on a burn ward or in a graves registration unit. See Zarycki, supra. The Board finds the term "other supportive evidence" is unclear as to the limitations, if any, on what can constitute "other supportive evidence." At a minimum, however, the law precludes the use of the claimant's own assertions as "other supporting evidence," nor would post-service medical evidence suffice as "other supporting evidence." To the extent that the term "other supporting evidence" in this context could consist of service department records, the Board finds that there are no service department medical or administrative records to establish that the claimant was in a plane crash, ship sinking, explosion, rape or assault, or had duty on a burn ward or in a graves registration unit. Thus, the Board finds that the record does not contain "conclusive evidence" that the veteran "engaged in combat with the enemy." As noted previously, where the record, as here, fails to establish that the veteran engaged in combat with the enemy, his lay statements as to in-service stressors cannot be accepted without further corroboration through independent evidence. Doran, 6 Vet. App. at 288-89. In the present case, the general and vague nature of most of the veteran's claimed stressors precludes any attempts at verification. For example, while he stated that he was in a combat area that was subject to frequent rocket and mortar attacks, and in which planes were shot down, most of his statements failed to include specific identifiers, such as a date, or people involved. Without such identifying information, verification of these stressors is simply not possible. The Board acknowledges that the veteran provided specific information with respect to two claimed traumatic events. He stated that his best friend was killed by sniper fire in 1967, and he described a rocket attack on his base. While these events are potentially verifiable, even if corroborated, they could not constitute an in-service stressor. Indeed, the DSM-IV criteria help define what qualifies as a stressful event in relation to a PTSD diagnosis. Specifically, DSM-IV 309.81 (a) states that the person must have been exposed 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. In both of the stressors specified by the veteran, he explained that he was not present at the time of the traumatic event. In fact, in the case of the rocket attack, he was not even aware of it until the following day, and did not remember particular individuals injured or killed in the attack. Because he did not personally experience the traumatic events which he describes, they are not found to serve as in-service stressors for the purposes of establishing service connection for PTSD. Therefore, even if the two specified traumatic events could be verified, they would not enable an award of service connection. The Board acknowledges that the medical evidence reveals a diagnosis of PTSD, as indicated in the VA clinical reports and in the March 2006 VA examination report. In fact, the VA examiner opined that the veteran's PTSD was the result of horrific and life-threatening experiences while in the line of duty in Vietnam. However, as already explained, the veteran's claimed traumatic events are either unverifiable, or otherwise fail to meet the DSM-IV requirements for a stressor. Therefore, in the absence of an in-service stressor, the diagnosis of PTSD and consequent nexus opinion are not probative evidence and cannot serve as a basis for a grant of service connection. Again, 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; Cohen v. Brown, 10 Vet. App. 128 (1997). In sum, the overall evidence of record does not support an award of service connection for PTSD. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). II. Nonservice-Connected Pension Under VA regulations, the payment of nonservice-connected pension benefits is provided to veterans who are permanently and totally disabled from a nonservice-connected disability which is not the result of willful misconduct, but only where the veteran has the requisite active wartime service. 38 U.S.C.A. § 1521(a) (West 2002); 38 C.F.R. §§ 3.3, 3.314(b) (2007). A veteran meets the service requirements of that section if he or she served in active military, naval or air service under one of the following conditions: (1) for ninety days or more during a period of war; (2) during a period of war and was discharged or released from service for a service- connected disability; (3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j) (West 2002); 38 C.F.R. § 3.3(a)(3) (2007). Active military, naval, or air service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6(a) (2007). The term "Vietnam era" means the following: (1) the period beginning on February 28, 1961, and ending on May 7, 1975, for veterans who served in the Republic of Vietnam during that period, and (2) the period beginning on August 5, 1964, and ending on May 7, 1975, in all other cases. 38 U.S.C.A. § 101(29) (West 2002); 38 C.F.R. § 3.2 (2007). In the present case, the veteran served on active duty for greater than 90 days during the Vietnam era. As such, he meets the service requirements for pension benefits. However, to receive nonservice-connected pension benefits, the evidence must also show that he meets the net worth requirements under 38 C.F.R. § 3.274 and does not have an annual income in excess of the applicable maximum annual pension rate specified in § 3.23, and is age 65 or older or is permanently and totally disabled from nonservice-connected disability not due to his own willful misconduct. See 38 C.F.R. § 3.3(a)(3). Applicable law further provides that a veteran is considered permanently and totally disabled if he is a patient in a nursing home for long-term care, is disabled as determined by Social Security, is unemployable as a result of disability reasonably certain to continue throughout the life of the person, is suffering from any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person, or where the veteran has any disease or disorder determined by VA to be of such a nature as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. See 38 C.F.R. § 3.3(a)(3). At the outset, the veteran is less than 65 years of age; however, after a careful review of the record, the Board finds that the evidence is at least in equipoise as to whether he is permanently and totally disabled as contemplated in the provisions set forth above. Specifically, his March 2006 VA psychiatric examination indicated a Global Assessment of Functioning (GAF) score of 40. GAF is a scale used by mental health professional and reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. The scale may be relevant in evaluating mental disability. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM (4th ed.1994)). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). Therefore, the GAF score of 40 reflects an inability to work. This is consistent with other evidence of record, including the veteran's own credible contentions. Based on the foregoing, the evidence supports a grant of nonservice-connected pension benefits. The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit of the doubt doctrine has been applied as appropriate. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Veterans Claims Assistance Act Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay 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). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA 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. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). With respect to the claim for pension, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Nonetheless, the VCAA duty to notify was satisfied by way of letters sent to the veteran in September 2004 (for PTSD) and February 2005 (for pension) that fully addressed all four notice elements and were sent prior to the initial RO decisions in these matters. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in March 2006 and August 2006, the RO provided the veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With those letters, the RO effectively satisfied the remaining notice requirements with respect to all issues on appeal. Based on the foregoing, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the veteran's service medical records, as well as post-service reports of VA treatment and examination. Moreover, his statements in support of his claims are of record. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claims. For the above reasons, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for PTSD is denied. Entitlement to nonservice-connected pension benefits is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs