Citation Nr: 0813114 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 07-17 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD), including anxiety, insomnia and memory loss. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Appellant and former spouse ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The veteran served on active duty from October 1942 to January 1946. He also served in the Air National Guard. The instant appeal arose from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Reno, Nevada, which denied a claim for service connection for PTSD. This appeal is advanced on the docket of the Board of Veterans' Appeals (Board) due to the veteran's advanced age. 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. The veteran did not engage in combat with the enemy. 2. There is no credible supporting evidence that the in- service stressors claimed by the veteran actually occurred. 3. There is no competent evidence of record showing that the veteran has been diagnosed with PTSD related to a verified stressor in service. CONCLUSION OF LAW PTSD was neither incurred in nor aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he has PTSD, along with anxiety, memory loss, and insomnia, as a result of his experiences in service. A grant of service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed stressor occurred. 38 C.F.R. § 3.304(f) (2007). The law provides that "[i]f 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 U.S.C.A. §§ C.F.R. § 3.304(f)(1) (2006). Where, however, VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is not related to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence which corroborates the veteran's testimony as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f); West v. Brown, 7 Vet. App. 70, 76 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Having carefully reviewed the evidence of record in light of the veteran's contentions and the applicable law, the Board finds that the veteran's claim fails because there is no evidence that the veteran engaged in combat with the enemy or has a diagnosis of PTSD which has been related to a qualifying in-service stressor. The evidence does not show that the veteran engaged in combat with the enemy. The available evidence and his statements reveal that he served during World War II in the United States and Europe. Attempts to develop the veteran's service personnel records were unsuccessful, as the veteran's service record is fire-related and cannot be reconstructed. However, available service records indicate that the veteran served as a communications officer in England in 1944 and in Germany after the United States and its allies occupied that country in 1945. He left the European Theatre and returned to the United States in December 1945. The service medical records do not show combat-related complaints, treatment, or diagnosis. The veteran's certificate of service lists, under the heading "battles and campaigns" "Air Offensive Europe, Normandy, Northern France, Ardennes, Rhineland". Records also show that his decorations include the Bronze Star Medal, the World War II Victory Medal, the European African Middle Eastern Theater Campaign Medal with one Silver Star. However, these records do not plainly reveal that the veteran was engaged in combat with the enemy. The veteran has not explicitly stated that he was engaged in combat with the enemy. He has reported one stressor in which the enemy was involved: an event in 1944 or 1945 when he was working in a radar building in England, about 100 yards from an air strip where some planes were strafed by the enemy. Otherwise, he has not reported that his stressors involve enemy action. For these reasons, the Board finds initially that the veteran did not engage in combat with the enemy within the meaning of 38 U.S.C.A. § 1154(b). There is no evidence which could support such a finding, and there is substantial evidence which supports a conclusion that he did not participate in combat. See Gaines v. West, 11 Vet. App. 353, 359 (1998). Accordingly, his statements and testimony concerning the alleged stressors may not be accepted, standing alone, as sufficient proof of their occurrence. Id. In addition to the incident in England when the airplanes were strafed with enemy fire, the veteran has asserted that he has PTSD based on additional, non-combat stressors: (1) while stationed in Florida in 1943 the plane in which he was a passenger was required to make an emergency landing after experiencing engine trouble; (2) while stationed in England in 1944, the veteran was one to two miles away from a bomb dump which blew up; and (3) while on a ship returning to the United States from Europe in 1945, there was a fire originating in the kitchen and the seas were very rough. Numerous inquiries were made in attempts to develop information which confirmed the veteran's recollections. As noted above, the National Personnel Records Center (NPRC) responded that the veteran's personnel record was fire- related and could not be reconstructed. Likewise, the U. S. Army and Joint Services Records Research Center (JSRRC) reported in March 2006 that the information required to verify the events described by the veteran was insufficient to send to the JSRRC for further development. VA subsequently contacted the veteran and requested more information for verification. He responded in April 2006 that he could provide no additional information and that he no longer maintains contact with anyone he knew in service. None of the other evidence in the claims files constitutes "credible supporting evidence," required by 38 C.F.R. § 3.304(f), that any claimed stressor actually occurred. Further, no health care provider has diagnosed PTSD. On the contrary, the only medical evidence on this point does not support the claim. A March 2005 treatment record developed from the Vet Center concluded that the veteran "does not describe any symptoms of PTSD from war experiences" and that there was "[n]o evidence of PTSD." Accordingly, the preponderance of the evidence supports a finding that the veteran does not have a diagnosis of PTSD. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the claim of service connection for PTSD. Consequently, the claim is denied. 38 C.F.R. § 3.304(f). Duty to Notify and Duty to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2007); 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of March 2006 and April 2006 letters sent to the appellant that fully addressed all four notice elements (April 2006 letter) as well as the notice elements required by Dingess (March 2006 letter). Both letters were sent prior to the January 2007 initial AOJ decision in this matter. The April 2006 letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). While, as explained above, the service personnel records are unavailable and cannot be reconstructed, the RO has obtained service medical records. The RO also made reasonable efforts, described above, to develop the veteran's stressor information, but the record shows that further efforts would be futile. The RO obtained VA treatment records from numerous VA facilities dated from 1967 to the present. The veteran has stated that he does not receive any treatment from non-VA facilities. See April 2006 written statement from the veteran. The veteran was also provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. The appellant was not afforded a VA medical examination. However, the duty to assist does not require the development of an examination in this case because there is no evidence of a verified in-service stressor. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs