Citation Nr: 0811472 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 04-20 544 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to service connection for claimed post-traumatic stress disorder (PTSD). WITNESSES AT HEARINGS ON APPEAL The veteran and VA social worker RL ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The veteran had active military service from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 RO rating decision. The veteran testified before the RO's Decision Review Officer (DRO) in July 2004. The veteran and a VA social worker then testified before the undersigned Veterans Law Judge at a hearing held at the RO in September 2005. The Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, DC in January 2006 and June 2007. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The veteran is not shown to have engaged in combat with the enemy in connection with his service in the Republic of Vietnam. 3. The veteran currently is not shown to have a diagnosis of PTSD that is due to an independently verified or potentially verifiable stressor during his period of active service. CONCLUSION OF LAW The veteran does not have a disability manifested by PTSD due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. In November 2002, prior to the May 2003 rating decision on appeal, the RO sent the veteran a letter advising him that to establish service connection the evidence must show an injury in service or a disease that began in or was made worse during military service, or an event causing an injury or disease; a current physical or mental disability; and, a relationship between the current disability and an injury, disease or event in service. The letter also enclosed a VA questionnaire entitled Information in Support of a Claim for Service Connection for PTSD. The Board accordingly finds that the veteran has received notice of the elements required to support his claim, and that he was been afforded ample opportunity to submit such information and evidence prior to issuance of the rating decision on appeal. In February 2006 the AMC sent the veteran a letter advising him that VA is responsible for getting relevant records held by any Federal agency, to include military records, Social Security Administration (SSA) records, and records from VA and other Government agencies. The letter advised the veteran that that VA would make reasonable efforts to obtain relevant records from non- Federal agencies and entities if authorized by the veteran to do so. The AMC letter specifically advised the veteran, "If there is any other evidence that has not been previously considered or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." The Board finds that the AMC letter cited above satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained that the claimant, and what evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant 's possession that pertains to the claim(s). As explained, all four content-of-notice requirements have been expressly met in this appeal. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. As indicated, in the matters now before the Board, documents fully meeting the VCAA's notice requirements provided to the veteran only after the rating decision. However, the Board finds that any arguable lack of full pre- adjudication notice in this appeal has not, in any way, prejudiced the veteran. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, any arguable delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after notice was provided. As indicated, the RO has given the veteran notice of what was required to substantiate the claim on appeal, and the veteran was afforded opportunity to submit such information and/or evidence prior to the issuance of the most recent SSOC in February 2008. Neither in response to the documents cited above, nor at any other point during the pendency of this appeal, has the veteran informed the RO of the existence of any evidence-in addition to that noted hereinbelow-that needs to be obtained prior to appellate review. Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2006). More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim (veteran status, existence of a disability, connection between the veteran's service and that disability, degree of disability, and effective date pertaining to the disability). In this appeal, the veteran's status is not at issue, and as indicated the RO advised the veteran of the second and third Dingess elements (existence of a disability, connection between the veteran's service and that disability). The AMC advised the veteran of the fourth and fifth Dingess elements (degree of disability, and effective date pertaining to the disability) by a letter in June 2007. Further, the Board's action herein denies service connection for the claimed disorder, so no degree of disability or effective date will result from the Board's decision. There is accordingly no possibility of prejudice under the notice requirements of Dingess in regard to the claim for service connection. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claim on appeal. The veteran's service treatment record (STR) and service personnel record (SPR) are both on file, as are medical records from those VA and non-VA medical providers that the veteran identified as having relevant records. The veteran has not identified, and the file does not otherwise indicate, that there are any other VA or non-VA medical providers having additional records that should be obtained before the appeal is adjudicated by the Board. In specific regard to stressor verification, VA is obligated to obtain relevant records pertaining to claimant's active military service that are held or maintained by a government entity, if the claimant furnished sufficient information to locate those records. 38 U.S.C.A. § 5103A(b)(3)(c)(1). As noted in more detail hereinbelow, the veteran has not identified any stressors that are verifiable through the U.S. Army and Joint Services Records Research Center (JSRRC), the National Archives and Records Administration (NARA), or any other agency. The veteran testified before the RO's DRO and he also testified before the Board; at his hearing before the Board he introduced a witness on his behalf. Finally, the Board finds no reason to remand for a medical examination at this point, for the reasons articulated hereinbelow. A medical examination is not required if the appellant has not presented a prima facie case for the benefit claimed. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam). As will be explained, the veteran has not presented a prima facie case because he does not have a verified stressor. The veteran has been reported to have a diagnosis of PTSD, and that diagnosis is not currently in dispute. The severity of his symptoms is not pertinent to the claim until such time as his disorder is service connected. There is accordingly no purpose to be served by remanding for medical examination at this time. Any remand that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, is to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim herein decided. II. Analysis Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service 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 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 in-service stressor occurred. 38 C.F.R. § 3.304(f). Stressor The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). Participation in combat, a determination that is to be made on a case-by-case basis, requires that a veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999); Moran v. Principi, 17 Vet. App. 149 (2003). See also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required-provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. 1154(b); 38 C.F.R. 3.304(f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Corroboration of every detail of a claimed stressor, including appellant's personal involvement, is not required; rather, a veteran needs only to submit independent evidence of a stressful event that is sufficient to imply his or her personal exposure. Pentecost v. Principi, 16 Vet. App. 124 (2002), citing Suozzi v. Brown, 10 Vet. App. 307 (1997). In his correspondence with VA and in his testimony before the RO's DRO, the veteran cited the following in-service stressors: (1) a soldier named "Pothead" from an unknown unit was killed in an ambush in the An Khe Pass on an unknown date; (2) the veteran had to clean trucks containing blood and body parts; (3) the veteran was exposed to the danger of ambush and sniper fire while driving in convoys. In his testimony before the Board, the veteran testified that, on at least one occasion, he was exposed to an ambush while riding in a truck convoy. His unit was not exposed to rocket or mortar fire, but a neighboring unit was attacked (in an unidentified location at an unidentified date). The veteran's job in the Republic of Vietnam was to salvage damaged vehicles, which sometimes entailed going on convoys to recover those vehicles from the sites where they had been disabled and working on vehicles with blood and body parts. Although the veteran has reported having combat experiences, the Board finds no independent basis for concluding that he participated in combat with the enemy during his service in the Republic of Vietnam. The veteran's Report of Discharge (DD Form 214) shows that he served in the Republic of Vietnam for 9 months; his military occupational specialty (MOS) was that of general vehicle repairman. However, the Board emphasizes that service in a combat zone, without more, is not sufficient to establish that a veteran engaged in combat with the enemy. See e.g., Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). In this case, neither the veteran's DD Form 214 nor his STR nor his SPR provide any objective evidence to show that the veteran personally participated in combat with the enemy or received a combat-related wound or traumatic injury of any kind while he was in the Republic of Vietnam. Engagement in combat is not necessarily determined simply by reference to the existence or nonexistence of certain awards or MOSs. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). However, in addition to the absence of any official indices of combat (Purple Heart Medal, Combat Infantry Badge, etc.) there is lacking any unofficial indices of combat, such as lay statements ("buddy statements"). It is possible that the alleged ambushes and mortar attacks could, conceivably, be independently verifiable. Pentecost, 16 Vet. App. 124. However, the veteran has not provided sufficient details or information to support an attempt to independently verify the occurrence of any such event while he was in the Republic of Vietnam, and the veteran has not provided any other supportive evidence-to include statements from former service comrades-to place him in the general vicinity of such attacks or otherwise to confirm a claim incident or event of his service. In other words, combat has not been established by objective, competent, and factual evidence of record. See VAOPGCPREC 12-99 at p. 4. Since combat has not been established, the claimed stressors cannot be verified based on the veteran's assertions alone; rather, a specific stressor must be independently corroborated. Indeed, the Board may not accept a veteran's uncorroborated account of his in-service stressor as evidence supporting a claim for PTSD if the claimed stressor is not related to combat. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates the veteran's testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki, 6 Vet. App. at 91. In this case, there is no independent basis whatsoever to support the veteran's assertions referable to any claimed in- service stressor event. The anecdotal experiences of the type cited by the veteran simply cannot be verified independently. See Cohen v. Brown, 10 Vet. App. 128, 134 (1997) ("Anecdotal incidents, although they may be true, are not researchable. In order to be researched, incidents must be reported and documented."). Under these circumstances, without more from the veteran, the Board must conclude that there is no verified or potentially verifiable stressor to support the claim of service connection for PTSD. Simply stated, the occurrence of none of the specific in- service stressful experiences has been corroborated by objective credible evidence, and the record does not present any basis for further developing the record in this regard. The Board has carefully considered the credibility and competence of the veteran's lay statements regarding his stressors. However, as noted, there must be objective evidence of participation in combat, or objective evidence of a noncombat-related stressor; the Board is not required to accept a veteran's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). Diagnosis and Nexus The file contains treatment records from a Vet Center showing a diagnosis of PTSD, assigned by a social worker. However, just because a physician or other health care professional accepted the appellant's description of his active service experiences as credible and diagnosed the appellant as suffering from PTSD does not mean the Board is required to grant the claim of service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board finds in its review of the record that the veteran does not identified with specificity any potentially verifiable in-service stressors. Accordingly, there can be no medical evidence of nexus between any diagnosed PTSD and in-service stressors. Accordingly, the Board finds that the claim for service connection for PTSD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, absent any credible evidence that a claimed in- service stressor occurred that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for PTSD is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs