Citation Nr: 0812465 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 07-05 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant, [redacted] ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The veteran served on active duty from October 1968 to November 1970. This case initially comes before the Board of Veterans' Appeals (Board) on appeal of a March 2005 rating decision rendered by the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified before the undersigned Veterans Law Judge in January 2008. A transcript of the hearing is of record. FINDINGS OF FACT 1. The veteran did not engage in combat. 2. A stressor supporting the diagnosis of PTSD has not been corroborated. 3. PTSD is not attributable to service. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2006), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error')." Id. at 121. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 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. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. In the present case, the veteran was provided with the notice required by the VCAA by letter dated in November 2004. The letter explained the evidence necessary to support his claim of entitlement to service connection for PTSD. It also requested that the veteran complete a questionnaire concerning his claimed PTSD stressors. While the November 2004 letter provided adequate notice with respect to the evidence necessary to establish entitlement to service connection, it did not provide notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. See Dingess, supra. However, the veteran was subsequently provided notice pertaining to these latter two elements by letter dated in March 2006, prior to the issuance of a supplemental statement of the case (SSOC). Based on the foregoing, the Board finds that there is no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). Available service records and pertinent post service medical records have been obtained. The veteran has not identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Board acknowledges that the veteran has not been afforded a VA examination in the present case. However, for the reasons explained below, the Board finds that a VA examination is not necessary in order to decide the veteran's claim. Because the veteran has failed to corroborate an in service stressor, a VA examination is not warranted. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2007). Service connection may 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). In order for a claim for service connection for PTSD to be successful there must be: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2007); see also Cohen v. Brown, 10 Vet. App 128 (1997). If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 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). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans). "Credible supporting evidence" of a non-combat stressor may be obtained from service records or other sources. Moreau v. Brown, 9 Vet. App. 389 (1996). However, the United States Court of Appeals for Veterans Claims (Court) has held that the regulatory requirement for "credible supporting evidence" means that "the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9 Vet. App. 163 (1996). Analysis Initially, the Board observes that the veteran did not engage in combat with the enemy. The veteran's service personnel records do not show that he received any citations or awards for participation in combat with the enemy. Also, the veteran's statements have been vague or inconsistent and do not establish credible participation in combat. Therefore, the provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. The veteran has alleged that he is entitled to service connection for PTSD. For the purpose of this decision, we acknowledge that the veteran's outpatient records show a diagnosis of PTSD. Thus, the issue before the Board is whether the veteran's claimed in-service stressor actually occurred and whether there is a link, established by medical evidence, between the current symptoms and the claimed in- service stressor. After a careful review of the record, the Board finds that none of the veteran's claimed stressors have been verified. For that reason, the evidence is against an award of service connection for PTSD. The veteran served as a military policeman during service. As a policeman, the veteran claimed his duties were to lead convoys and man gunships. The veteran maintained that he was exposed to rockets and gunfire, was fired upon as a gunner, and had to investigate a shooting and witnessed death. He claimed that in August 1969 while in Vietnam the enemy over- ran the "fire base oasis" and as military policeman he was required to man the fox hole and protect the perimeter. The veteran also claimed that from April 1969 to November 1970 while in Pkeiku he was informed that nerve gas was discovered outside of the base, he guarded wounded soldiers, loaded body bags, was exposed to body parts, and experienced rocket attacks. The veteran's physician A.K.T. maintained that the veteran has been under his care since September 2004 and that he suffers from chronic severe PTSD related to combat in Vietnam. A.K.T. noted that the veteran had to pick up body parts, watch wounded prisoners and investigate murder in a war zone. These incidents, according to A.K.T. still haunt the veteran. A.K.T opined that the veteran is fully and permanently disabled, and that his symptoms and suffering stem from exposure to combat and its manifestations. Outpatient treatment records also show combat exposure as the source of the veteran's PTSD. Although A.K.T. and outpatient treatment records attribute the veteran's PTSD to exposure to combat in service, the veteran's claimed stressors remain unverified. The veteran's claimed stressors include loading body bags and exposure to body parts, guarding severely wounded soldiers, being over run by the enemy, being fired upon as a gunner, and having to investigate a shooting and witnessing death. The veteran has provided a history of having experienced stressful events in service, the details of which are not confirmed. The veteran was asked for more detailed information concerning his claimed stressor. However, he did not respond with further details that would allow for any meaningful research. The Board finds that a verified stressor is not shown. The Board has considered the statements of the veteran, A.K.T., and the veteran's family and friends. However, the Board is not required to accept a veteran's uncorroborated account of his military experiences. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). A noncombat veteran's testimony alone does not qualify as credible supporting evidence of occurrence of an in-service stressor as required by 38 C.F.R. § 3.304(f). The Board concludes that the record does not contain evidence that tends to establish the criteria for establishing service connection for PTSD. Although the veteran has been given a diagnosis of PTSD, there is no independent corroboration of his claimed stressors. Furthermore, his statements have been vague and are insufficient to establish a meaningful search. In reaching these conclusions, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. 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. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs