Citation Nr: 0814739 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 03-21 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The veteran served on active duty from May 1968 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for PTSD. In March 2008, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The record does not demonstrate that the veteran engaged in combat with the enemy. 3. The veteran's claimed in-service stressful experiences have not been corroborated by service records, and any diagnosis of PTSD was made based on an unverified account of in-service events given by the veteran. 4. The veteran is not shown to have PTSD as a result of events during military service. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. In this case, the veteran's claim for service connection for PTSD was received in January 2003. Thereafter, he was notified of the provisions of the VCAA by the RO in correspondence dated in February 2003 and January 2007. These letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claim, identified the veteran's duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. Thereafter, the claim was reviewed and a supplemental statement of the case was issued in November 2007. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 07-7130 (Fed. Cir. September 17, 2007). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to this matter was provided in January 2007. The veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim during the course of this appeal. His service treatment records, service personnel records, records from the Social Security Administration (SSA), and all relevant private and VA treatment records pertaining to his claimed disability have been obtained and associated with his claims file. The veteran was not provided a VA medical examination and opinion to assess the current nature and etiology of his claimed PTSD disability. However, VA need not conduct an examination with respect to the claim on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case, as competent medical evidence does not provide any indication that the veteran's claimed PTSD disability may be associated with stressful events that were verified to have occurred during his active military service. Furthermore, he has not identified any additional, relevant evidence that has not otherwise been requested or obtained. The veteran has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim. Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (2007); a link, established by medical evidence, between current symptomatology and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually 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. See 38 C.F.R. § 3.304(f) (2007). If the veteran did not engage in combat with the enemy, his own testimony by itself is not sufficient to establish the incurrence of a stressor; rather, there must be service records or other credible supporting evidence to corroborate his testimony. See Zarycki v. Brown, 6 Vet. App. 91 (1993); Doran v. Brown, 6 Vet. App. 283 (1994). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2007). Factual Background The veteran contends that he currently suffers from PTSD, as a result of stressful events during active service. Considering the claim for service connection for PTSD, in light of the record and the governing legal authority, the Board finds that the claim is warranted. A review of the veteran's service treatment records reveals that he was psychiatrically normal on enlistment examination in March 1968 and on separation examination in April 1970. Service treatment records do not show that the veteran ever received psychiatric counseling during active duty or was diagnosed with a chronic psychiatric disorder while in uniform. The veteran's service personnel records reflect that he served in the United States Army and that his last duty assignment and major command was the 35th Engineer Battalion. Additional service personnel records indicate that the veteran was assigned to the 517th Engineer Company (Light Equipment) during his service in Vietnam from October 1969 to April 1970. His military duties involved working as a light truck driver and a vehicle driver. The veteran was awarded the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), and Republic of Vietnam Campaign Medal (RVCM) with 60 device and 1st O/S Bar. Post-service VA treatment records dated from 1999 to 2006 detail findings of PTSD and major depressive disorder. In a December 1999 VA Mental Health Evaluation report, the veteran indicated that he was a heavy equipment operator, was caught in between gunfire, saw buddies killed, had friends die, and saw dismembered bodies during active service. The examiner diagnosed PTSD and major depressive disorder. Axis IV stressors were identified as unemployment, financial problems, and exposure to combat. Additional VA treatment notes dated in March 2000 and January 2003 reflect continued findings of chronic PTSD as well as moderate and recurrent major depressive disorder. A February 2004 VA treatment note indicated that the veteran had a history of PTSD. Records received from the Social Security Administration (SSA) in February 2007 indicate that the veteran was awarded benefits based on a primary diagnosis of spinal cord disorders and a secondary diagnosis of diabetes mellitus. Records from SSA also contained a private psychiatric evaluation report dated in February 2003. A private psychologist listed a diagnosis of PTSD, noting that the diagnosis was based on the veteran's report that he experienced events in Vietnam that involved actual and threatened death which elicited a response that involved intense fear, helplessness, and horror. In written statements submitted in support of his PTSD claim, the veteran reported that his primary stressors during service as being involved in numerous fire fights, taking incoming rounds, and running a lot of convoys. He indicated that he was assigned to the 517th Engineer Company during his active service in Vietnam. During the time period from December 1969 to January 1970, he reported that he was constantly under fire and delivered equipment to Saigon and Cam Rhan Bay as well as witnessed some airmen hit with fire on an airstrip at Bien Hoa Air Base. In January 2004, the RO prepared a letter requesting that the U.S. Armed Services Center for Research of Unit Records (USASCRUR) (now, the U.S. Army and Joint Services Records Research Center (JSSRC)) assist with providing information that might corroborate the veteran's alleged in-service stressors. In the December 2004 response from USASCRUR, it was noted that a review of a unit history of the 517th Engineer Company (Light Equipment) was performed. USASCRUR was able to document that this unit sent cranes to barge off- loading sites located at Soc Trang and Phong Hiep and also sent various pieces of equipment to locations throughout the Mekong Delta in support of the 34th Engineer Group. However, it was noted that locations provided by the veteran (Saigon, Cam Ranh Bay, and Bien Hoa Air Strip) were not mentioned in this document. An After-Action Report submitted by the US Army Support Command Cam Ranh Bay (USASCRB) documented that this area received sapper and rocket attacks during three days in January 1970. An Operational Report - Lessons Learned submitted by the 525th Military Intelligence Group also documents a mortar and rocket attack at Bien Hoa Air Base on January 21, 1970. In order to provide further research concerning specific combat incidents and causalities, USASCRUR noted that the veteran must provide additional information, including the most specific date possible, type and location of the incident, numbers and full names of causalities, unit designations to the company level, and other units involved. In a December 2006 written statement submitted in support of his PTSD claim, the veteran indicated that he was assigned to different units while in Vietnam and ran convoys from Saigon to Cam Rahn Bay as well as next to the Demilitarized Zone (DMZ) border moving equipment from place to place. In his oral testimony before the Board in March 2008, veteran reported numerous stressful events during his active service in Vietnam that occurred in several areas including: 1) being pinned down in a fire fight and hiding in water in near DaNang while on a vehicle delivery convoy at some point between October and December 1969; 2) witnessing American soldiers being killed near DaNang; 3) witnessing a fire fight with causalities while training people in vehicle operation in an area called Black Hills next to the DMZ in January 1970; 4) being pinned down below Can Tho in South Vietnam while transporting people in February 1970; 5) losing friends who were killed at Bien Hoa Airfield in January 1970; and 6) being on convoys that were attacked, seeing people killed, and losing vehicles. However, the veteran again indicated that he was unable to remember any of the units he was assigned to during these events other than his own unit (35th Engineers Battalion, 517th Engineer Company). Analysis The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran "engaged in combat with the enemy". See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (2007); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Participation in combat, a determination that is to be made on a case-by-case basis, requires the veteran to have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999). If VA determines the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required - provided that such testimony is found to be "satisfactory", i.e., credible and "consistent with circumstances, conditions or hardships of service". See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f); Zarycki, 6 Vet. App. at 98. If, however, VA determines either that the veteran did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of his alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. See Zarycki, 6 Vet. App. at 98. Notwithstanding the veteran's current diagnoses of PTSD, in this case, the claim must be denied because objective evidence does not show that the veteran engaged in combat with the enemy, and there is otherwise no credible evidence that any of the veteran's claimed in-service stressors occurred. Although some of the veteran's claimed stressful experiences are potentially combat-related, the Board finds no objective indication that the veteran saw any combat during his service in Vietnam. Service personnel records verified that the veteran served in Vietnam from October 1969 to April 1970. However, the Board emphasizes that service in a combat zone, without more, is not sufficient to establish that the appellant engaged in combat with the enemy. See e.g., Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). A record of assignments indicates his principal duty was as a vehicle driver. The veteran's DD Form 214 does not reflect any awards or decorations typically associated with combat. While the veteran has received the RVCM and VSM, there is no indication that these medals were received in connection with any combat action. The Board also points out that no other objective indication of combat been provided. In other words, combat has not been established by objective, competent, and factual evidence of record. See VAOPGCPREC 12-99 at p. 4. Consequently, the occurrence of the veteran's claimed stressors cannot be established on the basis of his assertions, alone. The record must contain evidence that corroborates the occurrence of his alleged stressors. In this case, there simply is no evidence in this case to corroborate the occurrence of the veteran's alleged in- service stressors. Some of the stressors that the veteran has reported-to include seeing dead bodies-clearly appear to either be the type of the anecdotal experiences that are incapable of being independently verified, or that generally are associated with wartime service. 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."). VA also sought to independently verify specific incidents in which the veteran indicated that he witnessed. However, the veteran's stressor accounts are not corroborated by any objective documentary evidence from his period of active duty. As indicated above, the record only confirms the veteran's assignment to his unit in Vietnam (the 517th Engineer Company (Light Equipment)) during the time period from October 1969 to April 1970 and that various areas the veteran claims to have visited (Saigon, Cam Ranh Bay, and Bien Hoa Air Strip) did receive attacks during January 1970. Again, however, USASCRUR was unable to verify that the veteran was in the various areas during attacks that he has mentioned in his hearing testimony or in his written stressor statements, or that he witnessed the events as claimed. The Board further notes that the veteran also has not provided sufficient details to warrant any additional attempts to independently verify the occurrence of the claimed stressful events, and has not provided any other objective evidence-to include statements from former service comrades, numbers and full names of causalities witnessed, or any additional unit designations to the company level-to establish the occurrence of any these claimed in-service stressful events. In light of the foregoing evidence, the Board must conclude that there is no there is no verified or verifiable stressor to support the claim. Simply stated, combat has not been established, the occurrence of none of the veteran's specific in-service stressful experiences has been corroborated by credible evidence, and the evidence provided by the veteran does not present any basis for further developing the record in this regard. In the absence of credible evidence that a claimed stressor (sufficient to support a diagnosis of PTSD) actually occurred, the essential criteria of 38 C.F.R. § 3.304(f) have not been met, and the Board must therefore deny the veteran's claim of entitlement to service connection for PTSD. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs