Citation Nr: 0813646 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 96-51 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from April 1968 to February 1970. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In July 2005, the Board denied the claim. The appellant appealed to the Court of Appeals for Veterans Claims (Court). In October 2006, the Court granted the parties' Joint Motion for Remand of the Board's July 2005 decision, vacating the decision as it pertained to the issue of entitlement to service connection for PTSD, and remanding for additional action. In June 2007, the Board remanded the claim for additional development as required by the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). The RO sent the appellant a new VCAA notice letter dated September 2007. The additional development is complete. The Board observes that the RO mistakenly advised the appellant in November 2007 that the claim for service connection required new and material evidence to reopen. This was clearly erroneous. Thereafter, the RO sent the appellant a letter dated January 2008 notifying him that the November 2007 letter was incorrect and that his case was in appellate status. As the RO took corrective action in this matter and it does not appear that the appellant has undertaken actions based on the erroneous November 2007 letter, the Board finds that no further corrective action is required and that the Board may proceed. Lastly, the Board received additional evidence from the appellant on January 24, 2008. The Board finds that the evidence is not pertinent to the issue on appeal as it is not information concerning in-service stressor(s) causing PTSD. Furthermore, the evidence is largely duplicate copies of letters sent to the appellant from the RO in years past. While the appellant states that he saw on the Vietnam Memorial Wall the name of a friend HJW with whom he went to Vietnam, he does not purport that his death is an in-service stressor that caused his claimed PTSD and he has offered no explanation for the delay of this information. Accordingly, the Board is under no obligation to either consider this evidence or refer the evidence to the RO for consideration with respect to the current appeal. 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. The appellant is not a combat veteran. 2. There is no verified or otherwise credible supporting evidence of an in- service stressor to support a diagnosis for PTSD. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b) (2005). As a fourth notice requirement, VA must "request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b) (1); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Notice must be provided "at the time" that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini at 119 (2004). This timing requirement applies equally to the initial-disability- rating and effective-date elements of a service connection claim. Dingess/Hartman, supra. The Board finds that the VCAA letter sent to the appellant in September 2007 essentially complied with statutory notice requirements as outlined above. VA notified the appellant of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. Also, VA notified the appellant that he should submit evidence in his possession or alternatively provide VA with sufficient information to allow VA to obtain the evidence on his behalf. As the appellant seeks service connection for PTSD, VA further notifed the appellant that he should submit evidence showing a PTSD and a statement of the specific details of the stressful incident(s) in service that resulted in PTSD. VA listed the types of evidence he could submit. The Board acknowledges that the September 2007 notice was not preadjudicatory, in that it did not predate the initial rating decision that denied service connection for PTSD. However, VA afforded the appellant due process of law by readjudicating his claim following the issuance of the September 2007 VCAA notice. The RO sent the appellant a January 2008 Supplemental Statement of the Case notifying him of the evidence received and adjudicatory actions. Therefore, the Board finds that the appellant has not been prejudiced and that the essential fairness of the adjudication has not been compromised. Moreover, the record reflects that he had a meaningful opportunity to participate in the adjudication of his claim, and that he is represented by a private attorney whom has had the opportunity to keep the appellant informed of VA actions and his rights. VA has also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The available service medical records and post service treatment records have been associated with the claims folder. Additionally, VA provided the appellant with a VA examination and the opportunity to appear for a hearing. The appellant further indicated for the record that he had no additional evidence to submit in support of his claims. We find that there is no indication that there is any additional relevant evidence to be obtained either by the VA or by the appellant, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Accordingly, the Board concludes it should proceed, as specific notice as to what evidence the appellant could or should obtain was provided and no additional pertinent evidence was submitted. The claimant has had sufficient notice of the type of information needed to support the claim and the evidence necessary to complete the application. Therefore, the duty to assist and notify as contemplated by applicable provisions, including VCAA, has been satisfied. As such, the Board finds that the development requirements of the VCAA have also been met. VA has done everything reasonably possible to assist the claimant. Accordingly, appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection The appellant served on active duty from April 1968 to February 1970. He served in Vietnam in 1969 and his military occupational specialty was cook. Available service medical records show normal clinical evaluation. The first documented evidence of psychiatric problem is in January 1978. A VA hospital summary dated January 1978 reflects a diagnosis for paranoid schizophrenia. Reports of VA examination dated October 1978 and November 1982 reflect diagnoses for paranoid schizophrenia. On examination in November 1982, the appellant reported that he was a cook in Vietnam and not in combat overtly. During VA examination in April 1983, the appellant provided a description of his duties in service. He reported that he drove a truck, went on patrols, and was a part-time cook while stationed in Vietnam. He stated that, while on nightly patrols, he was involved in fire fights. The examiner noted that this was a somewhat different history than that which had been previously given. The examiner found that the appellant did not meet the criteria for PTSD; paranoid schizophrenia with depressive features was diagnosed. Report of VA examination dated November 1990 reflects a diagnosis for paranoid schizophrenia. An April 1996 private treatment report reflects an impression for PTSD and report of VA examination dated January 1998 reflects a diagnosis for PTSD. Correspondence dated June 2004 from a private psychologist further reflects the opinion that the appellant has PTSD. The appellant seeks service connection for PTSD. He contends that he has PTSD due to stressful events during his tour of duty in Vietnam. In correspondence dated July 1999, he stated that he did not remember the events, but that the information was in the claims file. In July 2004, VA requested that the appellant submit information with which stressors could be verified. The appellant failed to respond to this request. In September 2007, VA requested that the appellant submit a statement describing the in-service incident. He responded in October 2007 that "Don't remember" and "Don't remember nothing." Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; 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. 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). Here, the evidence is against a finding that he is a combat veteran. The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b) (West 2002), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99. Form DD 214 and service personnel records show that the appellant's military occupation specialty was a cook. When reporting in 1982, he indicated that he was not in combat. His statement against interest is consistent with the service records and more probative than subsequent reports of being on patrol and engaging in fire fights. These records are negative for any decorations or awards indicative of combat service. Accordingly, the Board finds that the appellant is not a combat veteran. 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 corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In weighing the evidence of record, the Board concludes that the preponderance of the evidence is against service connection for PTSD. In this case, the appellant has not submitted evidence to confirm his alleged, yet unidentified and not described, in-service stressor. There is essentially no stressor capable of verification. Also, there is no credible supporting evidence that the any service-related stressor has occurred. The Board is not bound to accept the appellant's uncorroborated account of his experiences. Wood, supra; Swann v. Brown, 5 Vet. App. 229 (1993). The question of whether a specific event reported by a veteran as a stressor actually occurred is a question of fact for the Board to decide, involving, as it does, factors as much historical as psychological. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this regard, the appellant's self-reported answers to VA inquiries about the alleged stressor(s) undermines his credibility. In June 1999, VA requested that the appellant complete and return a PTSD questionnaire. He responded that same month that the incidents occurred in Vietnam while he was in the Army but that he did not remember them. More recently, in October 2007, the appellant responded to a VA inquiry regarding his alleged in-service stressor(s) by stating that he "Don't remember nothing." The Board finds that it is unreasonable to accept the existence of a stressor causing PTSD that the appellant himself cannot recall. Therefore, the Board finds that his statements concerning the existence of a stressor are not credible. Further, the Board notes that, although the record contains medical diagnoses for PTSD, these do not corroborate that stressors occurred as the diagnoses are predicated solely on the appellant's uncorroborated assertions regarding what occurred in service, which he cannot even recall at this time. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]; Reonal v. Brown, 5Vet. App. 458, 461 (1993) [the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant]. Here, his own reports of stressors are not credible and diagnoses based upon such reports are unreliable. In the absence of a showing of combat with the enemy or a verified stressor or credible supporting evidence of an in- service stressor, the claim must be denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for PTSD is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs