Citation Nr: 0814524 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-04 130 ) 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: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Barone, Associate Counsel INTRODUCTION The veteran had active duty service from December 1968 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in October 2004, a statement of the case was issued in November 2004, and a substantive appeal was received in February 2005. FINDINGS OF FACT 1. The appellant is not shown to have engaged in combat. 2. The appellant has not responded to a request to provide sufficiently specific information to allow verification of any in-service stressor events, and the evidence of record does not otherwise indicate that the veteran has sufficiently identified any verifiable in-service stressor events causally related to PTSD. 3. The appellant's claimed in-service stressors have not been corroborated by official military records or any other credible supporting evidence. 4. PTSD was not manifested during active duty service, nor is any current PTSD otherwise shown to be related to such service. CONCLUSION OF LAW PTSD was not incurred in or aggravated during the veteran's active duty service. 38 U.S.C.A §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.125(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Board acknowledges the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The intended effect of the regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. After reviewing the claims folder, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. In a letter sent in May 2004, the claimant was informed of the information and evidence necessary to warrant entitlement to the benefits sought. Moreover, the appellant was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The Board also notes that the May 2004 letter included special notice particular to the development of PTSD claims and stressor events. The Board notes that the May 2004 letter was sent to the appellant prior to the September 2004 RO rating decision currently on appeal. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet.App. 112 (2004). The Board also notes that the May 2004 letter expressly notified the appellant of the need to submit any pertinent evidence in the appellant's possession. Therefore, the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. 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 notification that a disability rating and an effective date for the award of benefits will be assigned if the benefits are awarded. Id. at 488. In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate his claims by showing the nature and etiology of his claimed PTSD. However, there has been no notice of the types of evidence necessary to establish a disability rating or an effective date for any rating that may be granted. Despite the inadequate notice provided to the appellant, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). The Board notes that the RO did furnish the appellant with a May 2004 letter notifying him to submit evidence detailing the nature and history of his claimed PTSD. In any event, as the Board finds below that service connection is not warranted for PTSD, no ratings or effective dates will be assigned and any questions as to such assignments are rendered moot. Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record as it stands includes sufficient competent evidence. All available pertinent records, in-service, private, and VA, have been obtained. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Board declines to obtain a VA examination in this case. Denial of service connection in this case is based upon the absence of a verified PTSD stressor event during service and the absence of contemporaneous evidence indicating onset of the claimed disability during service or within an applicable presumptive period following service. Under these circumstances, no findings from a VA examination could substantiate the veteran's claim; a current VA examination report could not demonstrate significantly earlier onset of disability or verify the occurrence of a stressor event without resorting to pure speculation. However, service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The duty to assist is not invoked, even under Charles, where 'no reasonable possibility exists that such assistance would aid in substantiating the claim.' 38 U.S.C.A. § 5103A(a)(2). The Board notes that the RO made an attempt to develop evidence which might verify the occurrence of in-service stressor events in this case. However, as reflected in a February 2008 memo in the claims folder, the RO was unable to create a viable query as the veteran has not provided a sufficiently specific description of a claimed stressor event which might allow for a viable verification attempt. The RO specifically requested the necessary information most recently in a January 2008 letter, but the veteran did not reply. No additional pertinent evidence has been identified by the claimant as relevant to this appeal. In a statement dated November 2004, the veteran indicated that he had "no further information concerning my claim at this time." Under these circumstances, no further action is necessary to assist the claimant with this appeal. Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Finally, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The veteran is claiming entitlement to service connection for PTSD. 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. The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). 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). With regard to the question of whether the veteran engaged in combat, the phrase "engaged in combat with the enemy," as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Mere service in a combat area or combat zone does not in itself lead to the conclusion that an individual engaged in combat. VAOPGCPREC 12-99 (October 18, 1999). In claims for service connection for PTSD, the Board must determine whether the veteran has been properly diagnosed as having PTSD and currently suffers from PTSD associated with a specific corroborated in-service stressor event. In this case, the veteran has presented no evidence of a competent diagnosis of PTSD. However, the primary deficiency in the veteran's claim of entitlement to service connection for PTSD is the absence of any verified stressor linking any possible PTSD pathology to service. The veteran has been unable to provide sufficiently specific information to allow for verification of any in-service stressor event. The veteran has simply not responded to the RO's notice explaining the necessity to identify at least one stressor event during service which may be verified and possibly causally linked to a current PTSD pathology. The veteran's February 2004 filing of this claim reports that his PTSD began in August 1970, but there is no contemporaneous evidence of any manifestations of PTSD in the service medical records. The veteran's service medical records reflect that no acquired psychiatric disability manifested during service. There is no indication suggestive of pertinent symptomatology, treatment, or diagnosis during service, including in the veteran's November 1970 service separation examination report. The veteran contends that his service in Vietnam involved experiences which caused the development of PTSD. The veteran's correspondence, in aggregate, contends that he suffers from PTSD as the result of exposure to life- threatening conditions. His May 2004 response to a PTSD questionnaire generally describes extended exposure to frequent incidents of enemy hostility: rockets, mortars, grenades, sniper attacks, booby traps, and landmines. The veteran contends that "All the events taken together caused my condition." The veteran further discusses his alleged stressors in an October 2004 statement in which he explains that "at least once a week, we were attacked with mortars." In this October 2004 statement, the veteran further describes stressful experiences associated with performing his role as "flight missions controller" having to make decisions in response to calls for help in combat situations; the veteran also attributes his described PTSD symptoms to having befriended pilots who were later killed, and generally having "death all around me." The Board sympathizes with the veteran concerning the experiences he describes, but the veteran has not provided sufficiently specific detail for corroboration of any single qualifying stressor event; service connection cannot be granted for PTSD in the absence of an associated corroborated stressor. The Board acknowledges the veteran's description, presented in his October 2004 statement, of individual instances where the veteran faced substantial violence and danger. However, the veteran has not provided corroborating evidence of any such incident and has not identified the time and place of any such incident with sufficient specificity to permit a viable verification attempt. Service connection for PTSD may only be warranted with demonstration of a corroborable specific in-service stressor. Although it is clear that the veteran served in Vietnam, this fact alone does not constitute a specific stressor for which service connection may be granted. The Board emphasizes that mere presence in a combat zone is not sufficient, solely in and of itself, to support a claim of service connection for PTSD. A stressor must consist of an event during service. Zarycki v. Brown, 6 Vet.App. 91, 99 (1993). The veteran's service personnel records do not reflect any combat-specific decorations, and the evidence of record does not otherwise demonstrate that the veteran engaged in combat with enemy forces. The Board acknowledges the veteran's testimony regarding the general conditions experienced during service in Vietnam. Although the evidence shows that the veteran served in a combat zone, it unfortunately is not sufficient to demonstrate that the veteran actually participated in combat in the capacity contemplated by 38 C.F.R. § 3.304(f). The finding that the veteran is not shown to be a combat veteran for the purposes of 3.304(f) does not mean that the Board doubts that his service was in a combat zone nor does it mean that the Board doubts that the veteran served in difficult conditions. The legal standard simply requires a showing of actual participation in combat, that he 'engaged in combat' against the enemy, in order to be entitled to the 3.304(f) presumption. The fact that the veteran is not shown to be entitled to the 3.304(f) presumption does not mean that the Board doubts that the veteran's service was hazardous and does not prevent the veteran from establishing entitlement to service connection for PTSD should he provide corroborating evidence of an in- service stressor event. The fact that the veteran does not benefit from the 3.304(f) presumption in this case only means that the Board cannot accept the veteran's uncorroborated lay statements as sufficient evidence of the occurrence of a stressor event which is claimed to have caused PTSD. The outcome of this case could be different if the veteran identified any specific event and provided evidence to corroborate such an event which meets the applicable criteria and is determined by competent medical evidence to be a causal PTSD stressor. The Board has no authority in this case to grant service connection for PTSD without a single identified specific stressor event verified by corroborating evidence. The veteran has described, including in his May 2004 and October 2004 statements, that he was involved in incidents in which he was under fire from enemy combatants on multiple occasions; however, there is no indication of a specific date, location, or circumstance sufficient to allow for any reasonable corroboration attempt with reference to pertinent records and reports of such incidents. Unfortunately, the veteran's statements do not offer the type of detail and specificity of a particular stressor-event which might be reasonably corroborated. The Board notes that the veteran's service records have been reviewed in seeking corroboration of a pertinent event correlated to the veteran's described stressors, but the records contain no indication of any such event. The Board also notes that a January 2008 letter sent to the appellant by the RO notified the veteran of the need to provide VA with specific details of a stressful event, including dates, places, unit, description, and full names of other individuals involved. The veteran did not reply to this letter. A February 2008 RO memorandum shows a formal finding of a lack of information required to verify stressors in connection with the PTSD claim. The RO was unable to initiate a viable search for corroborating evidence which might assist the veteran, because the veteran has not provided sufficiently specific information as to the time and place of claimed stressor events. In this case, the law simply does not offer any basis for granting service connection for PTSD without a specific and corroborated stressor event. The Board understands the veteran's testimony that he endured several traumatic combat- like experiences while serving in Vietnam; nevertheless, these experiences have been stated in general terms, and no specific combat incidents during a sufficiently specific time-period at a sufficiently specific place have been indicated. The law simply does not offer any basis for granting service connection for PTSD without a specific corroborated stressor event. To the extent that the veteran contends that he suffers from PTSD due to combat-related stressor events in service, the evidence does not demonstrate that the veteran engaged in combat and, thus, corroborating evidence is required to verify stressor events presented in the veteran's testimony. The only evidence of in-service combat-related stressors are, however, contained in the veteran's non-specific and uncorroborated statements. Consequently, absent probative supporting evidence to corroborate the occurrence of a specific stressor-event, an essential element for a grant of service connection for PTSD is not established. In view of the foregoing, the Board is compelled to conclude that the preponderance of the competent evidence is against service connection for PTSD. Thus, the benefit-of-the-doubt rule is not for application and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs