Citation Nr: 0814291 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 05-04 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran had active service from July 1968 to July 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in October 2007 and remanded for additional development and adjudication. It has been returned for appellate review. FINDING OF FACT The veteran did not engage in combat during active service, and the competent medical evidence does not show PTSD secondary to non-combat service related stressors. CONCLUSION OF LAW PTSD was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Pertinent Law and Regulations Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2007). See also, Cohen v. Brown, 10 Vet. App. 128 (1997). Under 38 C.F.R. § 3.304(f), the relevant criteria require that a PTSD diagnosis must be established in accordance with 38 C.F.R. § 4.125(a), which mandates that for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). In this regard, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD. Specifically, the Court took notice of the change in criteria from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Hence, the Court noted that a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128, 140- 141 (1997). Furthermore, the pertinent regulation provides that 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. See 38 C.F.R. § 3.304(f)(1) (2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Factual Background and Analysis In various statements submitted with his claim, the veteran states that in service he sustained multiple injuries in a jeep accident. However, he did not remember any specifics of the accident and did not know the names of the other soldiers who were injured or killed. In other statements he reported that as a radio operator he was responsible for calling in support while in enemy territory and as a result of his duties personally witnessed the casualties of war. He had flashbacks associated with ambushes. During a VA consultation in May 2003 the veteran reported additional stressors of the possibility of being killed, wounded or captured. He witnessed the civilian deaths of two Vietnamese children who had been victims of an artillery barrage from another artillery unit on a village. He also stated that he was significantly affected by the reaction of the children's families to their dying process, realizing that he could have caused this kind of suffering many times as it was his job to call in targets. The veteran again reported that he was severely wounded while riding in a jeep with others who were killed. He was not sure what happened but assumed that they hit some sort of mine. The veteran acknowledged that he could not provide relevant details because he had no memory of the incident at all. He also reported that while stationed at a forward observation post he saw dead or dismembered bodies and had to do body counts after artillery rounds during bomb assessment. He also experienced incoming sniper fire, the killing of others, the deaths of comrades, feeling as though he failed to fulfill responsibilities in combat, and feeling dehumanized by combat. The veteran's DD Form 214 does not reflect that he received any awards or decorations which indicate involvement in combat. Accordingly, the Board concludes that combat status has not been demonstrated in this case and presumptions pertinent to combat veterans are not applicable. As combat status has not been established, the veteran's statements alone cannot constitute conclusive evidence of the occurrence of in-service stressors; rather, corroborating evidence is needed. In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In this case, the veteran's service medical records do show he sustained multiple lacerations to face and a nasal fracture as result of jeep accident. These records are otherwise negative for complaints of or treatment for any psychiatric symptomatology, and his separation examination report shows no psychiatric abnormality. Additionally, none of the remaining alleged incidents are mentioned in these service records, and they have not been reported in sufficient detail to be verified. Moreover, many of these types of incidents generally cannot be confirmed, long after the fact, unless actually documented. More importantly, based upon the record as a whole, even if the Board presumes, without conceding, the occurrence of the veteran's claimed in-service stressors, it notes that the veteran lacks a proper diagnosis of PTSD related to his non- combat stressors. On one hand, the record contains evidence favorable to the veteran's claim in a May 2003 VA consultation report, which contains a PTSD diagnosis. Considered in isolation, this evidence could be construed as supporting the veteran's contention that he currently has PTSD. However, although PTSD is shown as a diagnosis in this report, it is based entirely on the existence of stressors with little regard to symptoms, and is offered without specific discussion of the diagnostic DSM-IV criteria. On the other hand, the Board notes that the veteran's stressors, which were described with some specificity by him during VA examination in 2007 did not result in a diagnosis of PTSD. Rather, his symptoms were consistent with a depressive disorder. The Board finds this opinion highly probative, in that the examination was based upon a specific review of the veteran's claims folder and the veteran's account of stressors. The examiner identified which PTSD diagnostic criteria the veteran did and did not meet under DSM-IV, even while in no way disputing his stressors. In his assessment, the examiner considered the relevant diagnostic criteria and opined that the veteran did not warrant a diagnosis of PTSD based on his failure to meet the criteria and specified the ways in which the veteran failed to manifest such criteria. Specifically, the examiner explained that since the veteran could not recall the jeep accident, he did not meet the criterion "A" requirements for a DSM-IV diagnosis. The veteran was able to recall other incidents, particularly the deaths of the two Vietnamese children, which he referred to as his most traumatic incident, but did not have enough current symptoms to endorse the PTSD diagnosis in regards to that incident either. Thus the veteran did not meet the DSM-IV diagnostic criteria for PTSD. The Board may adopt a particular medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record that appears to support a claimant's position. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Wood v. Derwinski, 1 Vet. App. 406 (1991) (the Board is not bound to accept the diagnosis of PTSD if the evidence of record does not objectively support that diagnosis). Thus, the 2007 VA examination report is accorded greater probative value and is, in essence, adopted. The VA consultation report while not discounted entirely, is entitled to less probative weight. In summary, the veteran's claim for PTSD is implausible since there is no credible medical diagnosis of this condition in the record. In arriving at this conclusion, the Board notes in particular that a substantial negative piece of evidence is the November 2007 VA psychiatric examination report, which was conducted for the express purpose of determining whether the veteran met the diagnostic criteria for PTSD. The VA examiner concluded that the veteran's symptoms did not meet the clinical level for PTSD. The Board notes that the RO has not attempted to verify the veteran's claimed stressors. However, the stressors that the veteran has alleged primarily involve his experiences as a field wireman and for the most part are nonspecific and not readily verifiable. Nonetheless, the Board finds that he is not prejudiced in this case despite the RO's failure to attempt to verify the claimed stressors. The veteran has undergone VA examination to determine whether he has PTSD as a result of the stressful events he experienced. In rendering the opinion, the VA examiner appears to have accepted his stressor statements. Therefore, the Board finds that attempts to corroborate the claimed stressors are unnecessary, since the examiner assumed the validity of the claimed stressors in rendering the opinion. The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). Proper VCAA notice 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, and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a SOC or supplemental SOC (SSOC), is sufficient to cure a timing defect). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. The claimant bears the burden of demonstrating such error. 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 881, 889 (Fed. Cir. 2007) In letters dated in July 2003 and September 2003, the RO informed the veteran of its duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon his claim. These letters pre-dated the RO's January 2004 rating decision. See also VCAA letter dated in October 2007. The letters informed him that VA would obtain all relevant evidence in the custody of a Federal department or agency, including VA, the service department, the Social Security Administration, and other pertinent agencies. He was advised that it was his responsibility to send any other medical records supporting his claim, or to provide a properly executed release so that VA could request the records for him. The veteran was also specifically asked to provide "any evidence in your possession that pertains to your claim." The contents of the above 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. He was provided opportunities to submit additional evidence. The purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. In addition, 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 neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The veteran's service medical records, post treatment reports, and VA examinations are of record. 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 claim, and to respond to VA notices. The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection or increased ratings are awarded. However, in this case since the claim in question is being denied, such matters are moot. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible and no further assistance to the veteran in developing the facts pertinent to the issues on appeal is required to comply with the duties to notify and assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs