Citation Nr: 0811683 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 06-01 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD D. Hachey, Associate Counsel INTRODUCTION The veteran served on active duty from January 1968 to December 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (the RO). The veteran presented testimony before the undersigned Acting Veterans Law Judge at the RO in May 2007. A transcript of this hearing has been associated with the veteran's VA claims folder. FINDINGS OF FACT 1. During his military service, the veteran did not engage in combat with an enemy; nor does he contend that his stressor is combat related. 2. The record does not include credible supporting evidence verifying the occurrence of the veteran's claimed in-service stressor. CONCLUSION OF LAW PTSD was not incurred as a result of the veteran's active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks service connection for PTSD. He essentially contends that this condition is the result of seeing a severely disabled child while being hospitalized for abdominal distress in Vietnam. I. Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). Proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The RO clearly advised the veteran of each of the four elements required by Pelegrini II in a July 2004 letter. Letters dated in September 2006 and April 2007 also referenced the type of evidence necessary for determining a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although proper notice regarding disability rating and effective date was provided after the initial adjudication of the veteran's claim, he was not prejudiced by this error. VA has satisfied its notice requirements and adjudicated the veteran's service-connection claim on multiple occasions (most recently in a September 2005 statement of the case). Remanding this case solely for another adjudication following the August 2006 and April 2007 letters would serve only to delay a Board decision on the merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In any event, the matter of providing notice regarding disability rating and effective date is rendered moot by the Board's denial of service connection for PTSD herein. All relevant evidence necessary for an equitable resolution of the issue on appeal has also been identified and obtained, to the extent possible. The evidence of record includes the veteran's service medical and personnel records; extensive VA psychiatric treatment records; numerous written statements submitted by the veteran and his representative; and the transcript of a May 2007 hearing before the undersigned. At the May 2007 hearing, the veteran submitted additional medical evidence in the form of VA treatment records directly to the Board, along with a waiver of RO consideration of such evidence. See 38 C.F.R. § 20.1304 (2007). Otherwise, the veteran and his representative have not identified any other outstanding relevant evidence. In short, the Board finds that VA has satisfied its duties to notify and assist. Additional development efforts at this time would only result in an unnecessary delay. Thus, the Board will proceed with adjudication. II. Service connection for PTSD According to VA regulations, entitlement to service connection for PTSD requires that three elements be present: (1) medical evidence diagnosing PTSD; (2) combat status or credible supporting evidence that the claimed in-service stressors actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressors. See 38 C.F.R. § 3.304(f) (2006); see also Cohen v. Brown, 10 Vet. App. 128 (1997). With regard to the second PTSD criterion, evidence of in- service stressors, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2007). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. Where a determination is made that the veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other credible evidence which supports and does not contradict the veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396 (1996); Cohen, 10 Vet. App. at 142 (1997). In the instant case, the medical record is replete with multiple PTSD diagnoses from various mental health professionals. Each of the diagnoses ascribes this condition to the veteran's seeing a severely disabled Vietnamese child during an in-service hospitalization. Therefore, for the purposes of this decision, elements (1) and (3) of 38 C.F.R. § 3.304(f) have been met. The crucial element in this case is element (2), relating to in-service stressors. The Board notes at the outset that the veteran did not receive any decorations or awards indicative of combat status, and that his service personnel and medical records are negative for any indication of combat status or combat injuries. While in service, the veteran worked primarily as a sonar operator in the Coast Guard, a position not ordinarily associated with combat. In any event, as discussed in greater detail below, the veteran does not contend that his stressor is combat related. Since combat status has not been demonstrated, and because the veteran's claimed stressor is unrelated to combat, his lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau, supra. Therefore, to substantiate the claim, the record must contain service records or other credible evidence which supports and does not contradict the veteran's testimony. The veteran contends that while serving aboard a Coast Guard cutter off the coast of Vietnam in the summer of 1969 he developed an "unknown illness" which forced his evacuation to the Qui Nohn Army Hospital. While in the hospital, the veteran reported having seen a severely disabled Vietnamese girl who had apparently lost her legs. The image of this girl, the veteran maintains, has continued to disturb him and has produced PTSD. The veteran has indicated that he saw other troubling images of combat-injured soldiers while in the hospital, and "other scenes of horrors [of] our own men burned or hurt," but that none have "haunted" or "followed through the years" like the image of this young girl. See Statement from Veteran received November 14, 2005; see also Hearing Tr. at 4-5. Psychiatric treatment records likewise focus on the veteran's intrusive thoughts, nightmares, and ruminations regarding the image of the disabled Vietnamese girl. The veteran has consistently reported to his VA caregivers that while he witnessed several distressing events in service and in his post-service career as a firefighter and paramedic, none have troubled him like the image of the disabled Vietnamese child. As noted above, because the veteran's stressor is not combat related, to substantiate the claim, the record must contain service records or other credible evidence which supports and does not contradict the veteran's testimony. Such evidence is lacking in this case. Service medical records reflect that the veteran was evacuated from his ship to the Qui Nohn Army Hospital in June 1969 following vague complaints of abdominal pain. Treatment records indicate that the veteran's symptoms "improved in [the] hospital with no treatment." He was thereafter returned to his ship. These records do not mention the presence of a disabled Vietnamese girl in the hospital during that time or any complaint on the part of the veteran regarding the same. Service personnel records are also silent regarding any report of the incident. The veteran has not pointed to any other evidence or official record which would serve to corroborate his experience with the disabled Vietnamese child. The Board has considered whether additional development is required in attempt to verify the veteran's stressor. After considering the nature of the veteran's stressor, however, the Board has determined that no additional development would likely serve to substantiate the claim. The presence of a disabled Vietnamese child in an American army hospital is not the type of occurrence that would be noted in any official record. The official records which have been identified, such as the veteran's service medical and personnel records, contain no mention of the incident. Unless the veteran reported being troubled by the sight of the child to his caregivers during his hospitalization - which he apparently did not - such notation is not something that would typically be included in service medical or personnel records. Again, no other corroborating evidence is of record. Given the lack of any corroborating evidence of the veteran's alleged in-service stressor, the second element of 38 C.F.R. § 3.304(f) has not been satisfied and the veteran's claim fails on this basis. The benefit sought on appeal is accordingly denied. ORDER Service connection for PTSD is denied. ____________________________________________ LAURA H. ESKENAZI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs