Citation Nr: 0813260 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 03-04 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The veteran served on active duty from April 1969 to October 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the claim. The veteran provided testimony at a hearing before personnel at the RO in July 2005. A transcript of this hearing has been associated with the veteran's VA claims folder. In April 2006, the Board remanded the case for additional development. As a preliminary matter, the Board finds that the remand directives have been completed, and, as such, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. All reasonable development and notification necessary for the equitable disposition of the instant case has been completed. 2. Although the medical evidence reflects that the veteran has a medical diagnosis of PTSD, there is no credible supporting evidence to corroborate his report of in-service stressors upon which this diagnosis was based. CONCLUSION OF LAW PTSD was not incurred in or aggravated by the veteran's active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Here, the veteran was sent pre-adjudication notice by a letter dated in August 2002, which is clearly prior to the October 2002 rating decision that is the subject of this appeal. He was also sent additional notification by letters dated in September 2005 and April 2006 letter, followed by a readjudication of the claim by the RO via Supplemental Statements of the Case. Taken together, these letters informed the veteran of the evidence necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and indicated the need for the veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the holding in Quartuccio, supra. Moreover, the April 2006 letter included information regarding disability rating(s) and effective date(s) as mandated by the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the veteran was notified and aware of the evidence needed to substantiate this claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the duty to assist the veteran has been satisfied in this case. His service medical and personnel records are in the claims folder, as are all relevant post- service medical records. Nothing indicates that the veteran has identified the existence of any relevant evidence that has not been obtained or requested. Further, he has had the opportunity to present evidence and argument in support of his claim, to include at the July 2005 RO hearing. He was also accorded a VA medical examination in regard to this case in September 2002. Moreover, it appears that all reasonable efforts were conducted to verify the veteran's account of his purported stressors through official channels, and he did not respond to the request contained in the April 2006 letter that he provide more details regarding his purported stressors. Consequently, the Board concludes that VA has fulfilled the duty to assist the appellant in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this, and in other cases, only independent medical evidence may be considered to support medical findings. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Here, nothing on file shows that the veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Legal Criteria. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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). In addition to the foregoing, 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 current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In addition, 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM- IV) and that if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror". DSM-IV at 427-28. These criteria are no longer based solely on usual experience and response but are individualized (geared to the specific individual's actual experience and response). Hence, under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition. Cohen v. Brown, 10 Vet. App. 128, 141 (1997). In Zarycki v. Brown, 6 Vet. App. 91 (1993), the Court held that the presence of a recognizable stressor is the essential prerequisite to support the diagnosis of PTSD. Analysis. In the instant case, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for PTSD. Initially, the Board observes that the veteran's service medical records do not reflect he was diagnosed with an acquired psychiatric disorder, to include PTSD, while on active duty. In fact, his psychiatric condition was clinically evaluated as normal on his October 1970 release from active duty examination. Further, the first competent medical finding of a psychiatric disorder in the evidence on file appears to be that of a March 1996 VA medical examination which diagnosed dysthymia. He was subsequently diagnosed with PTSD in 2001. Thus, he was first diagnosed with an acquired psychiatric disorder more than 25 years after his separation from active service. To the extent the medical evidence indicates the veteran has PTSD due to active service, the provisions of 38 U.S.C.A. § 1154(b) provide that in the case of any veteran who engaged in combat with the enemy in active military service during a period of war, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation. However, the veteran has not alleged that his stressors are based upon having engaged in combat. Consequently, the provisions of 38 U.S.C.A. § 1154(b) are not applicable in this case. When a claimant did not engage in combat with the enemy, or claimed stressors are not related to combat, then the claimant's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen, supra; Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). The veteran has identified two principle stressors. First, an unnamed friend of the veteran was purportedly killed during a mine sweeping mission on "Hill 35" in June or July 1970. Second, he alleges that a stressor involved the murder of a white Marine by a black Marine in their quarters in June or July 1970. He alleges that all those present dispersed and claimed the deceased soldier was hit by enemy fire. Although the veteran was unable to remember the name of the deceased, he states the name of the alleged gunman, LM. He also states that both the deceased and LM were in Company E, not his own company, H & S. Further, he asserts that he found out later that LM subsequently confessed to the killing and was medically discharged, and died in the Detroit area around July or August 2001. The veteran's representative has contended that the veteran's description of his stressors have remained consistent throughout this case, and that the medical evidence relating the diagnosis of PTSD to these stressors is sufficient to warrant a grant of service connection. However, his purported stressors have not been confirmed through official channels. With respect to the first stressor, the RO contacted Headquarters, U.S. Marine Corps (USMC) and the Marine Corps Historical Center. In April 2003, Headquarters USMC responded that it was unable to verify this stressor as unit diaries of H&S Company showed no Marines listed as killed in action for January to October 1970. The unit report for the veteran's company for the entire length of his stay in Vietnam was also enclosed. In May 2007, the military responded that it was unable to verify the second purported stressor, following a search of morning reports of E Company from June 1, 1970, to July 31, 1970. Further, there is nothing in his service personnel records, or the unit report provided by USMC, which supports his purported stressors. In view of the foregoing, the Board finds that there is no independent evidence to verify the veteran's account of any of the alleged in-service stressors regarding what purportedly occurred during active service. As there is no corroborating evidence, service connection is not warranted for PTSD. The Board is cognizant of the holding of Pentecost v. Principi, 16 Vet. App. 124 (2002), wherein the Court reversed the Board's denial of a claim for service connection for PTSD on the basis of an unconfirmed in-service stressor. However, in Pentecost, the veteran submitted evidence that his unit was subjected to rocket attacks. The Court pointed out that corroboration of every detail of a stressor under such circumstances, such as the veteran's own personal involvement, is not necessary. See also Suozzi v. Brown, 10 Vet. App. 307 (1997). The facts in this case are easily distinguishable because the veteran has submitted no independent evidence of the occurrence of the claimed in- service stressors. More importantly, the replies the Board has received from the military have provided no confirmation of any incident(s) which affected his entire unit. ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs