Citation Nr: 0813452 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 04-23 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Scott Shoreman, Associate Counsel INTRODUCTION The veteran had active service from October 1969 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) from a June 2002 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). As a prefatory matter, the Board will discuss the status of the veteran's appeal as between an original claim and a request to reopen a previous final denial of benefits. A claimant initiates the appellate review of the RO adjudication of a claim by submitting a Notice of Disagreement (NOD). 38 U.S.C.A. § 7105(a) (2007). An NOD consists of a written communication from the claimant received within one year of the notice of decision that expresses dissatisfaction or disagreement with the decision and a desire to appeal it. 38 C.F.R. § 20.201. In April 2003 the veteran submitted a statement to the RO requesting reconsideration of the June 2002 rating decision. The RO treated this as a request to reopen a previously denied claim, rather than as an NOD. In June 2003 the RO issued a rating decision denying the reopening of the veteran's claim for service connection for PTSD, on the basis that new and material evidence had not been submitted. Upon review of that sequence, the Board finds that, since the April 2003 statement from the veteran was timely, and expressed dissatisfaction with and a desire to appeal the RO's June 2002 decision, it constituted an NOD. In addition, the veteran's former representative submitted an NOD in June 2003 based on the June 2003 rating decision, and requested de novo review of the claim by a Decision Review Officer (DRO). In a May 2004 Statement of the Case (SOC) which was issued by a DRO, and in a May 2007 Supplemental Statement of the Case (SSOC), the RO treated the veteran's claim as being for service connection for PTSD rather than being to reopen a previously denied claim for service connection for PTSD. Therefore, the issue before the Board is whether the veteran is entitled to service connection for PTSD based upon an appeal of the June 2002 rating decision, and not whether new and material evidence has been submitted to reopen a previously denied claim for PTSD. The veteran was formerly represented by Disabled American Veterans. He revoked their power of attorney for his claim in a March 2008 written statement. The veteran waived the review of additional evidence by the agency of original jurisdiction (the RO) in another March 2008 statement. FINDINGS OF FACT 1. An independently verified or corroborated stressor event in service has not been established which is shown to support a current diagnosis of post-traumatic stress disorder. 2. The competent and probative medical evidence of record preponderates against a finding that the veteran has current PTSD which is due to any incident or event in military service. CONCLUSION OF LAW Post-traumatic stress disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5.103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a veteran before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in an SOC or SSOC. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007); petition for cert. filed (U.S. March 21, 2008) (No. 07-1209). In March 2002 and February 2007, the RO sent the veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letters informed the veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). The Board finds that the content of the letters provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the June 2002 rating decision, May 2004 SOC, and May 2007 SSOC explained the basis for the RO's action, and the SOC and SSOC provided him with additional 60-day periods to submit more evidence. It appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. In addition to the foregoing harmless-error analysis, the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. This requirement was fulfilled in a March 2006 letter which the RO sent to the veteran. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Applicable Laws and Regulations Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303(a) (2007). To establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order for service connection to be awarded for PTSD, three elements must be present: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). With respect to the second element, if the evidence shows that the veteran did not serve in combat with enemy forces during service, or if there is a determination that the veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 289 (1994). The veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The above cited regulation, 38 C.F.R. § 4.125(a), refers to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DSM- IV), as the source for criteria for the diagnosis of claimed psychiatric disorders. DSM-IV provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) 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 himself or others, and (2) the person's response involved intense fear, helplessness, or horror. The Board notes that the current version of 38 C.F.R. § 3.304(f) essentially serves to codify previously existing provisions of VA Adjudication Procedure Manual M21-1. That manual has been rescinded and reissued as amended in a manual rewrite (MR). Provisions for developing PTSD claims appear at M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. D, Para. 13 (2007), which provides in part for requesting stressor information from the U.S. Army and Joint Services Records Research Center (JSRRC), after obtaining stressor identification information from the claimant. III. Factual Background and Analysis A review of the evidence shows that the veteran had a psychiatric evaluation in January 2003 at the Audie L. Murphy Memorial VA Medical Center (VAMC). The veteran said that he had served in Vietnam for 12 months, as an aircraft supplier, at a remote station where there were constant attacks and sabotage. He reported currently having nightmares, intrusive memories, increased startle response, claustrophobia, and chronic depressive symptoms, and said that he isolated himself. He also said that the symptoms had been worse during the prior year due to his unemployment. A VA psychiatrist discussed the veteran's case with the examiner and opined that he had probable PTSD, depression, and alcohol dependence. The veteran was diagnosed with moderate depression at a March 2003 VAMC screening examination. At a March 2003 Vet Center evaluation, the veteran reported that he saw the bodies of American soldiers and experienced incoming attacks on the base where he was stationed while serving in Vietnam. C.J.H., Ed.D., a therapist at the Vet Center, wrote in July 2003 that he had seen the veteran for four counseling sessions and that, due to his experiences in Vietnam, the veteran had intrusive thoughts and psychological distress. The therapist said the veteran efforts to avoid activities, places, or people that reminded him of trauma, he had a markedly diminished interest in significant activities, had feelings of detachment or estrangement from others, and had a restricted range of affect. Dr. H wrote that the veteran also complained of trouble sleeping, irritability, and hypervigilance, and of suffering from these symptoms since returning from Vietnam. The veteran wrote in an October 2003 statement that he had experienced mortar attacks when he was stationed at Long Thanh in Vietnam. He had to search for Viet Cong soldier at night and saw people killed, including a fellow soldier who was hit by a mortar in close proximity to him. The veteran also said he had experienced enemy fire while on guard duty, and was assigned to pack up the belongings of soldiers killed on patrol. The veteran had a VA examination in December 2003, and the examiner reviewed the claims file. The veteran reported chronic symptoms of avoiding people, anxiety, insomnia, and waking up with almost daily nightmares of bombs going off and guns being fired. The recent wars had reactivated memories of Vietnam, and he had a history of alcohol dependence that had begun soon after his return from Vietnam. The veteran did not feel that the anti-depressant he was taking helped. He said that while in Vietnam he was a supply clerk, but that he also had guard duty during which he was fired upon and returned fire. In addition, the veteran said that their base was infiltrated by the Viet Cong and that once in a while he witnessed soldiers being injured from mortar fire. In one incident the veteran saw another soldier killed from a mortar. The examiner opined that the veteran met the DSM-IV criteria for PTSD secondary to his experiences in Vietnam. The veteran was assigned a GAF score of 60. At May 2004 VAMC clinical pharmacy treatment, the veteran reported having nightmares two to three times a week, and thinking about Vietnam a lot. A July 2004 clinical pharmacy treatment note indicated that the veteran was not improving on, or tolerating, his medication. The veteran said at August 2006 treatment that he had become more isolated and continued to be irritable. He was hypervigilant and would check his entire house to relieve his anxiety that someone was there. His mother's recent hospitalization for open heart surgery was an additional stressor. The veteran reported in September 2006 that he was sleeping better with his current medication but would wake up at night concerned about someone being in the house, and that he had weapons in most of the rooms. He said that a friend with whom he had served Vietnam told him about an incident when another soldier assaulted the veteran, and another incident when an officer was killed when he stepped into the propeller of an aircraft. The veteran said he did not remember either incident, but believed he had witnessed the officer's death. The examiner felt that the veteran's appearance was appropriate, his speech normal and clear, his insight fair, and his mood mildly depressed. The veteran was diagnosed with PTSD secondary to Vietnam combat, and the assault discussed above; alcohol abuse, in remission; and depression, NOS (not otherwise specified). In October 2006 the veteran said that he had recently felt depressed, and that he had been recalling a traffic accident soon before he left for Vietnam in which a friend was killed and the veteran was injured. He also said he had been anxious, and that the friend with whom he had served in Vietnam had told him of incidents which he could not recall. The veteran had a VAMC PTSD assessment in February 2007, at which he reported having quit jobs because of frustration and feeling pressured. The examiner felt that the veteran told of a history of significant, recurrent depression, past suicidal ideation, and chronic symptoms of PTSD which had affected his interpersonal relations. The diagnosis of PTSD was established by exposure to a traumatic event in which he or others were threatened by serious injury or death and a response of intense fear, helplessness, or horror. The traumatic event was persistently re-experienced as recurrent and intrusive thoughts, dreams, and intense distress. The veteran persistently avoided stimuli associated with the trauma and had persistent symptoms of increased arousal as indicated by difficulty sleeping, irritability, difficulty concentrating, hypervigilance, and exaggerated startle response. The veteran was assigned a GAF score of 55. Rev. V.M.C., who was stationed with the veteran in Vietnam, wrote in an undated letter that a maintenance officer had been decapitated by a Mohawk propeller when checking the airplane for a problem. He further wrote that, in another incident, a drunk soldier had held an M-16 rifle to the veteran's head until Rev. C intervened and got the man to back off. Rev. C stated that they had been in a combat zone. The veteran's ex-wife wrote in March 2007 that when the veteran returned from Vietnam he was self-centered, restless, could not sleep, was unhappy with her, and had great difficulty showing his feelings. The veteran would not let her go places alone because he was afraid of what could happen, and he only recently had been able to discuss his experiences in Vietnam with his family. The veteran's mother wrote in a September 2007 letter that the veteran was still bothered by what he went through in Vietnam. The veteran received a certificate in September 2007 for completing PTSD 101 at a VA clinic. After a careful review of the evidence, the Board finds that service connection for PTSD has not been established. The objective evidence of record does not reasonably support a finding that the veteran engaged in combat with the enemy in Vietnam. "Engaged in combat with the enemy" has been defined as requiring that a veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). In the instant case, the evidence fails to document that the veteran engaged in combat, as shown by the lack of combat-indicative awards or decorations, and a non-combat duty assignment. His DD Form 214 shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, and a marksmanship award. His MOS indicates that he was a communications electronics material supply specialist. In addition, there is no indication that he sustained any wounds in service. The Board acknowledges the veteran's accounts of having been fired upon while on guard duty and witnessing fellow soldiers being struck by mortars. While we respect the sincerity of the veteran's assertions, the law requires verification or corroboration of such claimed stressors when there is no support in the record of his having participated in combat. The veteran's accounts are not supported by the objective evidence of record, and are not verifiable without greater specificity, which only he could provide. The veteran has not, to date, furnished specific dates, places, or names of participants for those incidents which could be verified through the JSRRC or other means. The RO was unable to verify the veteran's stressors in its February 2007 inquiry. Under West v. Brown, 7 Vet. App. 70, 76 (1994) where "the veteran did not engage in combat with the enemy . . . the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor." Rather, the claimed stressors must be corroborated by independent evidence of record. Therefore, the veteran's statements are not sufficient to establish an in-service stressor. There is no doubt that the veteran's service in Vietnam placed him in the combat theater. However, it is the experiencing of specific stressor events, rather than the mere presence in an area in which combat might arise, which may constitute valid support for a diagnosis of PTSD. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991), (noting that "neither appellant's military specialty (cannoneer), nor his service records, disclose that the nature of his duties exposed him to a more than ordinary stressful environment, even given the fact that service in a combat zone is stressful in some degree to all who are there, whatever their duties and experiences"). The Board notes that the veteran's service personnel records do not mention the alleged assault by a fellow soldier upon the veteran, and his service medical records do not mention it or show any related psychological treatment (or any psychological treatment, for that matter). The veteran never described the incident in any detail during the course of his treatment for PTSD, nor did he say that he had any memory of it. He did not mention it at all at his December 2003 VA examination, and his Vet Center treatment notes and the July 2003 letter from his Vet Center therapist contain no mention of it. At a September 2006 clinical visit, he said he was concerned about not being able to recall past incidents. He specifically mentioned being recently told about the assault by a friend who witnessed it, but said that he could still not remember it himself. The diagnosis from that appointment was the only time during the veteran's treatment when a treating provider included the history of the assault in the diagnosis. The veteran did not mention the incident at his February 2007 VA PTSD assessment. In addition, letters from his mother, his brother, and his ex-wife which have been associated with the claims file do not mention it. The only evidence in the claims file in which the rifle-to- the-head incident is described in any detail is the letter from Rev. C. Although, for the purpose of the present decision, the Board has no reason to doubt the veracity of that account, we must be mindful of the governing criteria in a PTSD claim, i.e., the DSM-IV requirement of the experiencing of an event involving threatened death or serious injury with a reaction involving intense fear, helplessness, or horror, and the 38 C.F.R. § 4.125 requirement of a causal nexus between current symptomatology and the claimed in-service stressor. In this case, where the veteran has repeatedly denied any recollection of the incident in question, the Board finds that there is no basis to infer that it is a cause of the claimed PTSD. In view of the foregoing, while there is a diagnosis of PTSD in the record, there is no verified in-service stressor to which the disorder can be linked, as required by 38 C.F.R. § 3.304(f). Upon thorough review of the evidence, the Board must conclude that the preponderance of the evidence is against the veteran's claim for service connection for PTSD. ORDER Entitlement to service connection for PTSD is denied. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs