Citation Nr: 0814622 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-30 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from November 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Albuquerque, New Mexico, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for PTSD. The veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in December 2007. A transcript of that hearing is of record and is associated with the claims folder. This case is ready for appellate review. FINDINGS OF FACT 1. The veteran did not serve in combat. 2. The record contains no credible supporting evidence of verifiable inservice stressors. 3. The veteran does not have PTSD associated with service. CONCLUSION OF LAW PTSD was not incurred or aggravated by active service. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. § 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist and Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to notify the veteran of any evidence that is necessary to substantiate his claim. This includes notifying the veteran of the evidence VA will attempt to obtain and that which the veteran is responsible for submitting. Proper notice must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the veteran is expected to provide; and (4) must ask the veteran to provide any evidence in his possession that pertains to the claim. See 38 C.F.R. § 3.159 (2007). These notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability; a connection between the veteran's service and the disability; degree of disability; and the effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a veteran before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v Principi, 18 Vet. App. 112, 119 (2004). Notice errors (either in timing or content) are presumed prejudicial, but VA can proceed with adjudication if it can show that the error did not affect the essential fairness of the adjudication by showing: 1) that any defect was cured by actual knowledge on the part of the veteran; 2) that a reasonable person could be expected to understand from the notice what was needed; or 3) that a benefit could not have been awarded as a matter of law. Sanders v Nicholson, 487 F.3d 881 (2007). In a letter dated in May 2004, the veteran was advised in accordance with the law. In Dingess/Hartman v Nicholson, 19 Vet. App. 473 (2006), the Court held that VA must also provide notification that a disability rating and an effective date for the award of benefits be assigned if service connection is awarded. The veteran received the notice consistent with Dingess in March 2006. As to the issue presently appealed, the preponderance of the evidence is against this claim, and any question as to the appropriate disability rating and effective date to be assigned is moot. The RO has taken appropriate action to comply with the duty to assist the veteran with the development of his claim. The record includes service medical evidence, service records, VA outpatient treatment records, February 2007 RO hearing transcript, and private psychological assessment reports. The veteran was offered a VA hearing and testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in December 2007. There is no known additional information to obtain. As such, the Board finds that the record as it stands includes sufficient competent evidence to decide this claim. 38 C.F.R § 3.159(c)(4). Under these circumstances, the Board finds no further action is necessary to assist the veteran with his claim. Service Connection The veteran maintains that service connection is warranted for PTSD, based upon service incurrence. The veteran asserts that he warrants service connection for PTSD based on his service in Vietnam. He alleges that he was in a convoy which was ambushed by small arms fire, and as a result of the attempt to escape the small arms fire, he ran the dump truck he was driving into the dump truck in front of him. He maintains that this incident caused the onset of his PTSD. VA compensation is paid for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). Service connection may 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) (2007). 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 inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. 38 C.F.R. § 3.304(f). 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 inservice stressor. Id. There is no competent evidence to substantiate that the veteran was exposed to a stressor, and the claim is denied on this basis. First, it is not contended that the veteran served in combat, nor that the veteran's stressor was combat-related. The veteran's service personnel records do not substantiate or suggest that he saw combat service; nor does the veteran's account raise this issue. The law provides that 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 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). The veteran's report of an incident was researched for corroboration by the U.S. Army and Joint Services, Records Research Center (JSRRC). It searched for records to substantiate the convoy attack for the period in June and August 1967 and also for the areas surrounding Long Binh, near Saigon and Tan Son Nhut. None of this information was verified. VA outpatient treatment records for the most part, show that the veteran has been treated on an ongoing basis for panic attacks, anxiety disorder, and to rule out PTSD. A March 2004 and September 2007 Psychological Assessment Report, submitted by Susan B. Cave, Ph.D, both show diagnosis of PTSD. In the March 2004 report, the veteran reiterated his convoy ambush to Dr. Cave. The mention by the examiner of the veteran's claimed stressor is not sufficient to substantiate its occurrence. The law provides that a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau; Cohen v. Brown, 10 Vet. App. 128, 142 (1997). The veteran testified at a RO hearing in February 2007 before a hearing officer and again at a Travel Board hearing in December 2007, before the undersigned VLJ. The transcripts of both hearings are of record and associated with the claims folder. The testimony provided at both hearings was essentially the same and related the convoy ambush wherein he hit the dump truck in front of him in an attempt to drive away from small arms fire. Although the veteran has a diagnosis of PTSD, and has provided a claimed stressor of involvement in a convoy ambush by small arms fire, the claimed stressor has not been verified. Since the stressors have been uncorroborated, one of the required prongs for the establishment of PTSD has not been met. As such, service connection for PTSD is not warranted. The claim is accordingly denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for PTSD is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs