Citation Nr: 0812013 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-01 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. J. Janec, Counsel INTRODUCTION The veteran had active military service from May 1955 to September 1958. He was discharged under honorable conditions. He had a second period of active duty from September 11, 1958 to March 1962 from which he was discharged under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) from an October 2002 rating decision of the Seattle , Washington , Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for PTSD. FINDINGS OF FACT The veteran has not been diagnosed with PTSD based on a verified stressor. CONCLUSION OF LAW PTSD was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in February 2001, April 2005, August 2005, and March 2006 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. VA informed the claimant of the need to submit all pertinent evidence in his possession, and provided adequate notice of how disability ratings and effective dates are assigned. While the veteran did not receive full notice prior to the initial decision, after pertinent notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and the claim was most recently readjudicated in an October 2007 supplemental statement of the case. The claimant was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the veteran that reasonably affects the fairness of this adjudication, and the evidence rebuts any suggestion that the veteran was prejudiced. Analysis The Board has reviewed all the evidence in the veteran's claims file, which includes his written contentions, service treatment records, VA medical records, private medical records, and lay statements. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be warranted 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). 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 the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). 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 that supports and does not contradict the veteran's testimony. See Doran v. Brown, 6 Vet. App. 283, 289 (1994). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The veteran contends that he has PTSD as a result of being aboard the USS Mount McKinley during a typhoon while it was traveling from San Diego to Japan in 1956. In his initial claim and supporting statement, he alleged that he witnessed a man being cut in half with a cable during the storm. In another statement received in September 2001, he remarked that the person who was cut in half was stationed aboard a ship next to the USS Mount McKinley, and that he fell overboard. He also recalled that two other people went overboard during the storm. At his personal hearing before the undersigned Veterans Law Judge in February 2008, the veteran testified that he witnessed two people falling off the aircraft carrier USS Hornet, which was approximately 100 yards away from the USS Mount McKinley, during the typhoon. He did not specifically know of any other injuries to anyone aboard the ship. The veteran submitted two letters from former shipmates who confirmed that the USS Mount McKinley was caught in a bad storm enroute to Japan in 1956. Both men recalled that the crew was not able to go topside during the storm. The U. S. Army & Joint Services Records Research Center (JSRRC) also reported that the deck logs confirmed that the USS Mount McKinley experienced reduced visibility, wind gusts up to 60 knots on the starboard quarter, and heavy swells with excessive rolls from 20 to 30 degrees in January 1956 while enroute to Yokosuka , Japan . Three crew members were injured. Similar weather was encountered one week later. A crew member slipped when the ship rolled and sprained his right knee. Following VA examinations in May 2002 and October 2007, the examiners concluded that the veteran did not have PTSD. The May 2002 VA examination diagnosed alcohol abuse in remission, and the October 2007 examination diagnosed depression In a January 2004 assessment, Pau l Predmore of the Vet Center found that the veteran had PTSD. The veteran's reported stressors during this assessment included witnessing four men just about go overboard from his ship during the storm and two men go overboard from an adjacent ship. He grabbed one man to keep him from going overboard. He also saw a cable hit two men and it looked like they had been cut in half and then fell in the water. The veteran recalled that he was topside during these events. In a July 2006 opinion, Robert Baize, Ph.D., concluded that the veteran had PTSD as a result of being in a typhoon in 1956 on a ship that was enroute to Japan , and watching as a fellow shipmate got washed out of a gun turret overboard. Based on the evidence of record, the Board concludes that service connection for PTSD is not warranted because the veteran's PTSD diagnoses were not based upon a verified stressor. The veteran served during peacetime; therefore, he did not engage in combat with the enemy. As a result, his statements alone are insufficient to establish that his claimed stressor actually occurred. Moreau, Dizoglio. Here, the JSRRC as well as the veteran's fellow shipmates confirmed that the USS Mount McKinley experienced severe weather while the veteran was onboard. However, none of these sources confirmed the veteran's allegations that several men went overboard during the storm. In fact, the veteran's fellow sailors specifically state that no one was allowed topside during the storm. This is in direct contrast to the veteran's assertion that he was topside during the storm and that he witnessed shipmates going overboard as well as saving one from going overboard himself. Additionally, the Board finds the veteran's assertions that he witnessed individuals from the USS Hornet going overboard in that same storm to be inherently incredible. During a storm of the magnitude described the captains of the two respective vessels would not have hazarded either their crew or vessel by sailing so close together in open water. Moreover, it is unlikely that the veteran would have been able to see anything within 100 yards of the USS Mount McKinley in light of the weather conditions the ship was experiencing at that time, even if he had been topside. The opinions by Mr. Predmore and Dr. Baize specifically relate the veteran's PTSD to his stressor of being involved in the storm and witnessing individuals going overboard. As such, these diagnoses were based on an unconfirmed stressor and are inadequate upon which to base a grant of service connection for PTSD pursuant to 38 C.F.R. § 3.304(f). The two VA examiners found that the veteran did not have PTSD. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for PTSD; hence, the reasonable doubt doctrine is not applicable. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Consequently, the claim must be denied. ORDER Service connection for PTSD is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs