Citation Nr: 0815053 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-08 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. McPhaull, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from March 1964 to February 1966. This matter is before the Board of Veterans' Appeal (Board) on appeal from a March 2004 rating decision by the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO). In February 2008, the RO sent the veteran a letter acknowledging his request for a Board hearing. Review of the claims file shows that the veteran made no such request. On his March 2006 VA Form-9, the veteran requested a local RO hearing before a Decision Review Officer (DRO). He specifically indicated that he did not want a Board hearing. In January 2007, the veteran cancelled his request for a local hearing before a DRO. FINDINGS OF FACT 1. It is not shown that the veteran served in combat. 2. PTSD has been diagnosed; however, there is no credible supporting evidence that the veteran was exposed to a stressor event in service. CONCLUSION OF LAW Service connection for PTSD is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Via letters in January 2004, the veteran was informed of the evidence and information necessary to substantiate his claim, the information required of him to enable VA to obtain evidence in support of his claim, the assistance that VA would provide to obtain evidence and information in support of his claim, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. The VCAA letters informed the veteran that he should submit any medical evidence pertinent to his claim. Although complete VCAA notice was not provided to the veteran prior to the initial adjudication in this matter, he has had ample opportunity to supplement the record and to participate in the adjudicatory process following notice. The claim was reajudicated after all essential notice was given. See January 2008 supplemental statement of the case. The veteran is not prejudiced by any notice deficiency, including in timing, earlier in the process. The veteran did not receive timely notice regarding disability ratings or effective dates of awards (Dingess v. Nicholson, 19 Vet. App. 473 (2006)). A March 2006 letter provided such notice. As noted above, the claim was thereafter readjudicated. Regardless, this decision denies service connection, and neither the rating of a disability nor the effective date of an award is a matter for consideration. Hence, the veteran is not prejudiced by any timing defect of this notice. The veteran's service medical and personnel records are associated with his claims file, as are VA and private treatment records. He was afforded an examination on behalf of VA in March 2004. He has not identified any pertinent records that remain outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of this claim. B. Factual Background The veteran's service personnel records show he served in Vietnam. There is no indication that he engaged in combat. His service medical records do not show any complaints, symptoms, diagnosis, or treatment pertaining to a psychiatric disorder. On service separation examination, psychiatric clinical evaluation was normal. VA records from January 2002 to September 2003 show no treatment for, or complaints of, PTSD. December 2003 to March 2004 private records from C.A.P., IMFT, include a March 2004 record which notes a diagnosis of PTSD. On March 2004 examination on behalf of VA, the veteran reported several stressors. He stated that while on night duty he saw a silhouette and he almost fired his M-16 because he thought it was the enemy, only to find out it was a fellow soldier. Another stressor involved his helping Vietnamese farmers when a bridge collapsed, pinning people underneath. He stated that the farmers were more interested in saving rice than saving people. He reported seeing rice soaked with blood. He described another alleged incident when he observed U.S. planes dropping napalm bombs and seeing women and children running on fire. His recollections of these events made him depressed and nervous. The veteran stated that he has an exaggerated startle response and he still finds himself jumping when he hears loud noises. He reported sleep problems, slow response and inability to concentrate, as well as nightmares and flashbacks about what happened in Vietnam. He continued to have dreams about women and children burning and dying. He was not currently on any psychiatric medication; nor had he ever been psychiatrically hospitalized. He denied delusions or hallucinations. He denied suicidal or homicidal ideation. He stated that he avoids people. The examiner noted that the veteran was alert and oriented in all spheres. He noted that the veteran was neatly dressed and appropriated groomed. The examiner stated that the veteran's mood was depressed and his affect was anxious. PTSD, chronic delayed type was diagnosed based on the veteran's account of the above stressors. In a March 2006 statement, the veteran related that he and a fellow soldier were assigned to guard (protect from North Vietnamese) farmers who loaded rice bags onto the veteran's truck for shipment to a city. He recalled that while they were driving to the city sometime between December 1965 and February 1966 (he could not remember the exact date) the road collapsed because it had been booby-trapped. He stated that the fellow soldier was hurt badly, and that several people died as a result of their truck rolling over. The RO sought verification of the veteran's alleged stressor events. An April 2007 response from the Service Department noted: "We have reviewed the Operational Reports - Lessons Learned (OR-LLs) submitted by the 5th Howitzer Battalion, 27th Artillery (5th How Bn, 27th Arty) for periods ending January 1966, May 1966, and August 1966. We also reviewed the records that are maintained at the US National Archives and Records Administration (NARA) in College Park, Maryland. After a thorough search of these records we could not find [any] references to substantiate the claim submitted by [the veteran]". C. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. To establish service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service 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 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. 38 C.F.R. § 3.304(f); West v. Brown, 7 Vet. App. 70 (1994). Where the veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and they must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). D. Analysis Postservice medical evidence shows that the veteran has a diagnosis of PTSD. However, that of itself is insufficient to establish service connection for such disability. What is also needed is credible supporting evidence that a stressor event in service actually occurred, and even an unequivocal medical diagnosis of PTSD would not suffice to establish service connection for PTSD in the absence of such credible supporting evidence. 38 C.F.R. § 3.304(f). Since it is not shown that the veteran engaged in combat, there must be corroborative supporting evidence of an alleged stressor event in service. See Cohen, 10 Vet. App. at 128. The veteran has provided details regarding one of his stressors; and based on such information, the RO attempted to verify such stressor. As noted, the Service Department was unable to find any credible supporting evidence that such incident occurred. Therefore, the Board finds the veteran's account of the alleged stressor for which he provided sufficient information to allow for verification is not credible. The diagnoses of PTSD in the record are based on the veteran's self-reported history of stressor events that are uncorroborated and are deemed not credible. As it is not shown that the veteran engaged in combat, or that there is credible supporting evidence of a stressor event in service (or a diagnosis of PTSD based on a stressor that is supported by credible evidence), the regulatory criteria for establishing entitlement to service connection for PTSD are not met. The preponderance of the evidence is against this claim, and it must be denied. ORDER Service connection for PTSD is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs