Citation Nr: 0811752 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 04-32 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for degenerative disc disease, lumbar and cervical spine. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD C. Palmer, Associate Counsel INTRODUCTION The veteran had active service from August 1967 to August 1969. This matter is currently before the Board of Veterans' Appeals (Board) following a Remand issued in November 2006. This matter was originally on appeal from a December 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The record reflects that the veteran testified at a personal hearing before the RO in August 2005. The transcript of the hearing is associated with the claims file and has been reviewed. Since the issuance of the last supplemental statement of the case, the Board has received additional evidence from the veteran in support of his appeal. The veteran's representative indicated in March 2008 correspondence that the veteran waived his right to initial consideration of the additional evidence by the RO. 38 C.F.R. §§ 19.9, 20.1304(c) (2007). Accordingly, the Board will consider the new evidence in the first instance in conjunction with the issue on appeal. FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claims, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained, to the extent possible. 2. The evidence does not show that the veteran's currently diagnosed PTSD is related to his claimed in-service stressor event of physical abuse by his drill sergeant during basic training or otherwise to an incident of active military service. 3. The evidence does not show that the veteran's currently diagnosed degenerative disc disease of the lumbar and cervical spine is related to his active military service. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304(d), (f) (2007). 2. Degenerative disc disease of the lumbar and cervical spine was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Board Remand and the Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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 his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the veteran of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In correspondence dated in October 2003, the RO advised the veteran of what the evidence must show to establish entitlement to service connection, thoroughly described what information and evidence was needed in support of his claims to include the information needed regarding his claimed in- service stressor events, and asked the veteran to send what was needed to the RO. The RO also advised the veteran of what types of evidence that VA would obtain and make reasonable efforts to obtain on his behalf with respect to his claims. While the Board observes that the RO did not specifically address the elements of effective date and degree of disability in the October 2003 VCAA notice letter, such notice defects have been remedied because the veteran was sent a subsequent VCAA notice letter in December 2006, pursuant to the Board Remand, that addressed such elements and was followed by readjudication of the claims in October 2007. The Board further notes that the RO provided the veteran with a copy of the December 2003 rating decision, the August 2004 Statement of the Case (SOC), and the Supplemental Statements of the Case (SSOCs) dated in October 2005 and October 2007, which collectively included a discussion of the facts of the claims, pertinent laws and regulations, notification of the bases of the decisions, and a summary of the evidence considered to reach the decisions. The veteran indicated in correspondence dated in January 2007 that he had no further evidence to submit in support of his claims. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO obtained the veteran's service personnel records and VA treatment records from November 1996 to May 2007 and afforded the veteran with a local hearing in August 2005. The RO also requested a search of appropriate records to determine whether there was an investigation of a non-commissioned officer (i.e., drill sergeant) in the veteran's unit during his period of basic training from August 14, 1967 to October 13, 1967, pursuant to the Board's Remand. The 3101 Print noting that a review of the veteran's personnel file did not indicate any type of investigation during basic training is of record. The Board further observes that the veteran's service medical records, lay statements from the veteran's friends dated in November and December of 2003, copies of the veteran's letters to his sister dated in September and October of 1967, and several written statements from the veteran are also associated with the claims folder. The Board received correspondence from the veteran in March 2008 in response to the SSOC wherein he alleged that the records concerning an investigation of his former drill instructor during his basic training period have either been lost or there was a "cover-up." The veteran asked several questions to include whether VA checked records in weeks 4, 5, or 6 concerning one of his fellow inductees who was hospitalized for being physically assaulted or checked the records for his former drill instructor for the period from August 1967 to September 1967. As noted above, relevant service records for the veteran were reviewed in an attempt to verify his claimed in-service stressor event with negative results. However, review of other veterans' service records in an effort to corroborate the occurrence of a particular veteran's in-service stressor event, as suggested by the veteran in his March 2008 correspondence, would involve substantial Privacy Act considerations and VA regulations prohibiting disclosure of personal information to persons other than a claimant and his/her representative. Moreover, the veteran has been provided with opportunity to submit lay statements and other evidence in support of his account of the claimed in-service stressor event. In light of the foregoing, the Board concludes that VA has made reasonable efforts in attempting to verify the veteran's claimed stressor and no further attempts are necessary. The veteran has not made the RO or the Board aware of any other evidence relevant to this appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. The Board further finds that the RO complied with its November 2006 Remand. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board will proceed with appellate review. II. PTSD The veteran contends that he currently suffers from PTSD as a result of the physical abuse he experienced during his first six weeks of basic training in active military service. At the August 2005 RO hearing, the veteran reported that the drill sergeant who inflicted the abuse was demoted and court- martialed when his conduct was discovered by the military and, as a result, another drill instructor completed the last two weeks of his unit's basic training instruction. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). For service connection to be awarded for PTSD, the record must show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (2007); (2) combat status or credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2007). Where the claimed stressor is not related to combat, such as in this case, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-96 (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 or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). A medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Moreau, 9 Vet. App. at 395-96. The Board notes that the medical evidence of record clearly establishes a current diagnosis of PTSD. The veteran's VA treatment records dated from 1997 to 2007 contain numerous Axis I diagnoses of PTSD by mental health professionals to include the veteran's current VA treating psychologist (R.G.B., Ph.D.). In regard to medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor, the Board notes that there is both favorable and unfavorable medical opinion evidence of record regarding the question of whether the veteran's currently diagnosed PTSD is related to his claimed in-service stressor event. In support of the claim, it is observed that Dr. R.G.B. wrote in a June 2003 treatment record that the veteran's PTSD resulted from the in-service attacks against him by his drill instructor during basic training as well as the post-service attack against him in Ohio by his former wife's husband that occurred in 1997. Additionally, in a July 2004 letter, Dr. R.G.B. commented that the veteran presented symptoms and behaviors descriptive of PTSD as a consequence of the trauma he suffered during basic training. On the other hand, the May 1999 VA examining psychiatrist found no causal relationship between the veteran's military service experiences and his psychiatric symptomatology reasoning that his PTSD symptoms and recurrent major depressive episodes appeared to arise from the incident which occurred in October 1997 when his former wife's husband ran his vehicle into the veteran's vehicle. It is additionally observed that a February 1999 VA treatment record reveals that the veteran's treating psychologist (R.M., Ph.D.) at that time indicated the veteran's PTSD was due to the October 1997 incident. In regard to the claimed stressor event, the Board notes that the veteran has reported in several statements submitted during the course of this appeal that he was subject to repeated physical assault by his drill instructor during his basic training experience. The veteran also submitted copies of two letters, apparently dated in September 1967 and October 1967 respectively, that he reportedly wrote to his family while he was in basic training wherein he makes reference to the physical assaults. In the September 1967 letter, the veteran indicated that the basic training instructors would beat the recruits "quite often." In the October 1967 letter, the veteran references his "crooked platoon sergeant" and, in a post script, relates that the sergeant beat him and the other recruits and threw them off of trucks during basic training until he had been "busted" two weeks before. He also wrote that his back hurt all the time but he had been afraid to go to the sick call until then. The veteran's friends also submitted statements dated in November and December 2003 wherein they essentially wrote that the veteran had told them about the physical and mental abuse during basic training. Furthermore, the veteran's sister submitted a statement dated in April 2005 wherein she wrote that the veteran had taken over the counter medication for back pain over the years and hoped that her letter would assist in the determination of the veteran's ability to receive compensation for the physical damage done to his back while he was in basic training in 1967. However, the 3101 Print notes that a review of the veteran's personnel file did not indicate any type of investigation during basic training from August 14, 1967 to October 13, 1967. Additionally, the veteran's service medical records make no mention of any psychological problems and are absent of any reference to injuries that may have resulted from the veteran's reported beatings. It is also noted that the veteran's psychiatric status was clinically evaluated as normal at the May 1969 separation examination and the veteran denied having any psychiatric problems at that time. Furthermore, the veteran's service personnel records do not indicate any problems related to his performance that may be indicative of mental distress. The Board additionally notes that the veteran's VA treatment records show that that the veteran did not receive treatment for any psychological problems until 1996, approximately 27 years after service, and consistently related such problems to a series of post-service events such as his divorce in February 1996, an October 1997 motor vehicular accident caused by his ex-wife's husband wherein he suffered multiple injuries, and disagreements with his ex-wife regarding child custody issues. Although the veteran made mention of his military service generally while reporting his history during the course of his treatment for a psychiatric disorder, he never suggested that he had experienced repeated assault during his period of basic training during that time and specifically denied having had any traumatic experiences or any post-traumatic stress disorder symptoms related to service at the May 1999 VA psychiatric examination. In fact, the veteran never indicated that he had experienced repeated physical assault during his basic training experience until 2003, the year he filed his request to reopen a claim for entitlement to service connection for PTSD. [The Board notes that the veteran did not specifically claim service connection for PTSD prior to 2003; however, the RO initiated adjudication of the claim due to post service evidence of PTSD that was of record when adjudicating the veteran's claim for pension. The RO denied service connection for PTSD in an October 1999 rating decision and the decision became final.] After consideration of the evidence as a whole, the Board finds that the claimed in-service stressor event has not been sufficiently supported by credible supporting evidence. The copies of the 1967 letters from the veteran are of little probative value, particularly with respect to the statements contained therein regarding the veteran's claimed in-service stressor events, as such statements are neither consistent with nor supported by the record when viewed in its entirety. In any event, the Board affords the statements that the veteran made to mental health examiners when initially seeking treatment for psychological problems from 1996 to 1999 for post-service events great probative value, as it is likely that the veteran would have been forthcoming about any past traumatic events at that time. The Board also affords great probative value to the 3101 Print, which noted that there was no indication that there was any type of investigation during the veteran's basic training experience. On the other hand, the veteran's statements regarding the claimed in-service stressor event to include the statements contained in the copies of the veteran's 1967 letters are afforded no probative value as they are inconsistent with statements he made to mental health examiners contemporaneous to his beginning to experience psychiatric symptoms many years before filing his claim for service connection. The Board also affords the 2003 statements by the veteran's friends no probative value as they only reported what the veteran had told them and did not witness or have first-hand knowledge of the in-service stressor events. None of the veteran's friends knew him while he was in service and the two individuals who knew him for the longest period of time, V.B. and J.V., have only known him since approximately 1986 and 1992, respectively, which is many years after service. Furthermore, the Board affords the statement written by the veteran's sister (L.C.W.) in April 2005 no probative value because she only mentioned that the veteran had taken medication for back pain over the years and was submitting the letter to assist with the determination of his ability to receive compensation for the physical damage done to his back while he was in basic training. She made no mention of any psychiatric symptomatology and did not indicate that the veteran told her of the occurrence of the physical abuse while he was in basic training. Moreover, she did not witness the events alleged by the veteran to have taken place. As the medical opinions offered by the veteran's treating psychologist, R.G.B., that linked the veteran's PTSD to his claimed in-service stressor event were based on the veteran's report of an in-service event that has not been sufficiently corroborated by credible supporting evidence, the Board finds that they are merely speculative and affords them no probative value. Obert v. Brown, 5 Vet. App. 30, 33 (1993). Alternatively, the Board affords the opinions offered by VA mental health examiners in 1999 attributing the veteran's PTSD to post service events great probative value as the veteran's report of symptoms and occurrence of post service events at that time is, indeed, supported by the record. In conclusion, the Board finds that the preponderance of the evidence weighs against the claim and service connection for PTSD is not warranted. III. Degenerative Disc Disease The veteran also contends that he currently suffers from degenerative disc disease of the lumbar and cervical spine as a result of the physical abuse he experienced during his first six weeks of basic training in active military service. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2007). 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 C.F.R. § 3.303(d) (2007). The voluminous record contains ample medical evidence of current degenerative disc disease of the lumbar and cervical spine. Indeed, the veteran's VA treatment records from 1997 to 2007 contain numerous findings of the claimed back disorder. Nevertheless, there is no medical evidence to indicate that the veteran's current degenerative disc disease is related to his period of active military service. The Board observes that the veteran's service induction examination report shows that the veteran's spine was clinically evaluated as normal and the veteran reported periodic low back pain with heavy lifting with no history of injury on the corresponding report of medical history. Service treatment records are negative for any complaints, findings, or treatment for neck or back problems in service and the veteran's spine was again clinically evaluated as normal at the service separation examination in May 1969. The veteran also denied having any back trouble of any kind on his May 1969 report of medical history. Indeed, the veteran's treatment records indicate that he did not begin to experience back problems after service until 1988, approximately 19 years after separation from service. In this regard, the Board particularly observes that the veteran told his medical examiner in December 1996 that he had injured the back of his neck in 1988 when the pin slipped in his rowing machine. He additionally reported that he began to experience pain and stiffness in the back of his neck and subsequently had a cervical laminectomy and specifically denied having had any other injuries at that time. Subsequent treatment records show that the veteran suffered injury to the neck and back when he was involved in an altercation with his former wife's husband who "rammed" the veteran with his automobile. The veteran later reported a history of neck and back pain related to his post-service injuries at the May 1999 VA examination; he made no mention of any in-service neck or back pain at that time. Moreover, the Board notes that there is no competent medical evidence to include a medical opinion of record that suggests a link between the veteran's current back disorder and his active military service. The Board notes that the aforementioned October 1967 letter written by the veteran includes reference to back pain. However, as explained above, the veteran's report of physical abuse by his drill instructor has not been sufficiently corroborated by credible supporting evidence. Furthermore, the service medical records are absent of any references to back pain and the May 1969 separation report of medical history shows that the veteran specifically denied having any back trouble at that time. Consequently, the Board affords the veteran's letter no probative value and affords great probative weight to the medical evidence of record to include the veteran's service records. The Board also recognizes that the veteran's friend, E.N.P., wrote in his December 2003 statement that the veteran told him that having to play the drums during basic training created physical problems for him during his training, which later developed into major physical and back problems. V.B. similarly wrote in his November 2003 statement that the veteran told him that he had back and leg problems today as a result of having to play the drums during basic training. Furthermore, M.H. wrote that the veteran told her that he believed that his lower back pain was directly related to being forced by his drill instructor to carry and play the drums during all training exercises during his basic training experience. Moreover, the veteran's sister wrote in April 2005 correspondence that the veteran had taken over the counter medication for back pain over the years and indicated that it was related to physical damage done to his back during basic training. However, the veteran, his friends, and his sister are not shown to have the medical expertise necessary to render a competent medical opinion regarding the cause of the veteran's current back disorder and, as stated above, there is no competent medical evidence suggesting a link between the veteran's degenerative disc disease and his active military service. Grottveit v. Brown, 5 Vet. App. 91 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Furthermore, the occurrence of the events described by the veteran has not been corroborated by credible supporting evidence, the service medical records are absent of any references to back problems, and back problems are not shown until many years after service, as explained above. Consequently, their statements are also afforded no probative value with respect to the veteran's claim. As there is no competent medical evidence of record establishing a nexus relationship between the veteran's current back disorder and his period of active military service, the Board finds that the preponderance of the evidence weighs against the veteran's claim. Thus, service connection for degenerative disc disease of the cervical and lumbar spine is not warranted. In reaching these conclusions, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the veteran's claims and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for degenerative disc disease, lumbar and cervical spine, is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs