Citation Nr: 0813790 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 07-17 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois 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 Bridgid D. Cleary, Associate Counsel INTRODUCTION The veteran served on active duty from September 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO). In January 2008, the veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2007). The veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in March 2008. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The veteran did not engage in combat. 2. The record does not include credible supporting evidence for the veteran's claimed in-service stressors. CONCLUSION OF LAW PTSD was not incurred or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The U.S. Court of Appeals for Veterans Claims (Court) held in Pelegrini II that VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), to the extent possible, must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. Pelegrini II, 18 Vet. App. 112, 119- 20 (2004). See, too, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the veteran was provided notice of the VCAA in July 2005, prior to the initial adjudication of his claim in the July 2006 rating decision. The VCAA letter summarized the evidence needed to substantiate the claim and the VA's duty to assist. It also specified the evidence that the veteran was expected to provide, including the information needed to obtain both his private and VA medical treatment records. In this way, the VCAA letter clearly satisfied the first three "elements" of the notice requirement. Additionally, the letter states, "If you have any evidence in your possession that pertains to your claim, please send it to us." This satisfies the fourth element. 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. Additionally, this notice must include mention that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. In a March 2006 letter, the veteran received Dingess notice, including as it relates to the downstream disability rating and effective date elements of his claim. The Board finds that all relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, private medical records and the report of a VA examination. The veteran has not indicated he has any further evidence to submit to VA, or which VA needs to obtain. The veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2007). Pertinent Laws and Regulations In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with § 4.125(a) (i.e., DSM-IV), (2) a link, established by medical evidence, between current PTSD symptoms and an in-service stressor, and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2007). Evidence to support a PTSD claim must be evaluated in light of the places, types and circumstances of service as evidenced by service records, the official history of each organization in which the veteran served, the military records and all pertinent medical and lay evidence. The requirements vary depending upon whether or not the veteran engaged in combat with the enemy. 38 U.S.C.A. § 1154(b); 38 C.F.R. §§ 3.303, 3.304(f). If there is no combat experience, 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. It is not sufficient to simply rely on service in a combat zone. Zarycki v. Brown, 6 Vet. App. 91, 99 (1993). The stressor must be of such gravity that it would evoke the symptoms in almost anyone, for example, serious threat to one's life or physical integrity or seeing another person seriously injured or killed as the result of an accident or physical violence. The existence of a recognizable stressor or accumulation of stressors must be supported by evidence. Id. 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. 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. Analysis In December 2003, Dr. A.C., a clinical psychologist for the VA, diagnosed the veteran with PTSD based on his Vietnam experience. This satisfies the first two elements of a PTSD service connection claim. The veteran does not have combat experience. His DD Form 214 shows no awards indicative of combat and his military occupational specialty (MOS) was wheeled vehicle mechanic with a transportation company. Therefore, the veteran's claimed stressors must be corroborated by evidence other than his own lay testimony or the diagnosis of PTSD. See Doran v. Brown, 6 Vet. App. 283, 289 (1994). The veteran has identified three in-service stressors during that time which have contributed to his PTSD. These incidents include (1) an October 1969 incident in which the veteran ran over a Vietnamese girl with a truck, which, according to the veteran, was recorded by military police for the 101st Airborne Division, (2) a December 1969 incident involving the transport of enemy prisoners of war, and (3) a January 1970 incident where the veteran found himself caught overnight at a firebase that was subject to attack. The first two incidents were reported on the completed VA Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD) filed in October 2005, while the third stressor was identified as part of the substantive appeal in May 2007. A Veterans Claim Examiner attempted to locate records to corroborate the first claim through a search of the 101st Airborne's military police records for October 1969, but an April 2006 National Archives and Records Administration (NARA) search found no record of an incident involving a Vietnamese girl. In July 2006, the VA issued a Formal Finding on a lack of information required to verify stressors in connection with a claim for service connection for PTSD with regard to the first two stressors, citing the unsuccessful NARA search and the anecdotal nature of the veteran's statements. See Cohen v. Brown, 10 Vet. App. 128, 134 (1997) ("Anecdotal incidents, although they may be true, are not researchable. In order to be researched, incidents must be reported and documented."). Given that the third claim is similarly anecdotal in nature and relies on an incident during which the veteran was outside of his unit, military records placing him in combat with another unit are unlikely to exist, particularly since his service personnel records do not show assignment to any unit (including on a temporary basis) other than the 666th Transportation Company from September 1969 to March 1970. In the case of Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court determined that a veteran's presence with his unit at the time attacks occurred corroborated his statement that he experienced such attacks personally. Unlike Pentecost, the case on appeal concerns a veteran who was temporarily away from his unit and among another when the stressor occurred. Military records may be able to verify whether the firebase in question was subject to a night attack in January 1970, but not whether or not the veteran was at that firebase when it occurred. Any attempt at verification would be futile. VA has no duty to act when such action would serve no useful purpose. 38 U.S.C.A. § 5103A(a)(2). The Board does not question the veteran's veracity, but given the unverifiable anecdotal nature of the claimed stressors, credible supporting evidence that the claimed in-service stressor occurred cannot be obtained. Thus, element (3) cannot be satisfied. Therefore, service connection for PTSD cannot be established. In reaching this decision, the Board has determined that application of the benefit-of-the-doubt doctrine is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs