Citation Nr: 0815071 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-09 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) (claimed as respiratory problems), including as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for benign prostatic hypertrophy (BPH), including as secondary to service- connected diabetes mellitus. 4. Entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus. 5. Entitlement to service connection for erectile dysfunction, including as secondary to service-connected diabetes mellitus. 6. Entitlement to service connection for sleep apnea, including as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from December 1964 to December 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In his March 2006 VA Form 9, Substantive Appeal, the veteran requested a hearing before the Board; an April 2006 RO record notes he did not desire a hearing and had withdrawn his request. In August 2006, the veteran submitted additional evidence with a waiver of RO initial consideration of such evidence. The veteran had also initiated an appeal of the January 2005 rating decision's denial of service connection for tinnitus. A January 2006 rating decision granted service connection for tinnitus, rated 10 percent, effective from November 3, 2003. Hence, that matter is not before the Board. [The veteran has not expressed disagreement with the rating or effective date assigned.] A statement from the veteran received in January 2005 raises the issue of service connection for depression. Since this issue has not been developed for appellate review, it is referred to the RO for appropriate action. The matters of service connection for COPD, BPH, hypertension, erectile dysfunction, and sleep apnea are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if any further action on his part is required. FINDINGS OF FACT 1. It is not shown that the veteran served in combat. 2. There is no credible supporting evidence that claimed in- service stressors occurred; when PTSD has been diagnosed, it was diagnosed based on non-combat stressor events not supported by independent evidence. CONCLUSION OF LAW Service connection for PTSD is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (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. See 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 or her 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). The veteran was advised of VA's duties to notify and assist in the development of the claim. While he did not receive complete notice prior to the initial rating decision, a November 2005 letter provided certain essential notice prior to the readjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). February 2004 and November 2005 letters explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, the evidence he was responsible for providing, and advised him to submit any evidence or provide any information he had regarding his claim. The November 2005 letter also advised him of the details the RO needed to permit corroboration of his alleged stressor events and enclosed a stressor questionnaire. He has had ample opportunity to respond/ supplement the record and is not prejudiced by any technical notice deficiency (including in timing) that may have occurred earlier in the process. In compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), a March 2006 letter advised the veteran of disability rating and effective date criteria. The veteran's service medical records (SMRs), Social Security Administration (SSA) records, and pertinent private and VA treatment records have been secured. Significantly, no further stressor development is possible because the veteran has not (as he was advised) provided sufficient details of his alleged stressors to allow for further research. The RO did not arrange for a VA examination and/or etiological opinion. As the record does not include credible corroborating evidence of an in service stressor, an examination and/or opinion as to a nexus between a stressor event and a current diagnosis is not necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512, 516 (2004). The veteran has not identified any pertinent evidence that remains outstanding. Thus, VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis 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; 38 C.F.R. §§ 3.303, 3.304. 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. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Where the veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Initially, the Board notes that it has reviewed all of the evidence in the veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The veteran's SMRs are silent for complaints, findings, treatment, or diagnosis relating to PTSD. A clinical finding on October 1967 separation examination notes the veteran's psyche was normal. Annual examinations completed from December 1976 to June 1991, during the veteran's reserve service, show clinical findings of a normal psyche. Service personnel records reflect that the veteran served in Vietnam from August 1965 to August 1968. His military occupational specialties while he was in Vietnam were supply handler and warehouseman. He served with the 647th QM Company from August 1965 to July 1966 and with the 53rd Support Company from July to August 1966. The veteran did not receive any award or decoration specifically denoting combat participation and the record does not otherwise contain evidence that he engaged in combat with the enemy. Notably, his duties as a warehouseman and supply handler were of a non-combat nature. The meaning of engaged in combat with the enemy requires that the veteran have taken part in a fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (October 18, 1999). He has not specifically indicated that he actually engaged in combat with the enemy, but has alleged that due to his work in the supply detail he rode in convoys from Cam Ranh Bay to Nha Trang to Saigon and back and was exposed to combat during these trips and always felt as though he was under threat of being killed. He has also stated that there were firefights every day at Cam Ranh Bay, but he has not alleged that he was involved in these firefights. The veteran has described several stressful events that he experienced during his service in Vietnam. He has stated that one of his positions involved guarding body bags and making sure that they were at the appropriate temperature; while engaging in these duties, he saw two of his friends in body bags. He reported the burning down of a village with horrible smells, rats escaping, and feeling bad for children who had considered that village their home. From his account, the nature of the veteran's involvement in this fire is unclear. The veteran has also described an incident when he was driving a two and a half ton truck and saw a Vietnamese child throw a pineapple grenade in the back of the 3/4 ton truck in front of him. The grenade did not explode, but he helped the driver of the 3/4 ton truck and got him clear of the area and the 3/4 ton truck. Another incident occurred during a convoy when the driver of the truck in front of his was killed by rifle fire and a grenade; he and other unit members had to stay and provide security until the body could be evacuated and the truck wreckage could be cleared. He has reported that a man of Mexican descent in the tent next to his committed suicide by putting a rifle to his head and that it was a real mess. A separate incident involved going into the town of Cam Ranh Bay with several buddies from his unit. When one of his friends went back into a building they had just left, they heard the friend scream and they found that he had been stabbed. The veteran has provided only nonspecific stressor information regarding the above incidents. Notably, events involving injuries or deaths of American soldiers, and (generally) shelling of/attacks against American units are verifiable events (if they occurred). Despite being advised that specific information including dates, locations, and full name of any casualties were needed, he has provided only the above nonspecific allegations and has not provided information that would permit corroboration. In June 2006 written argument, the veteran's representative stated that the veteran's records show the units with which he served and that this information could be used to obtain independent evidence to support the veteran's alleged stressor events. However, the record shows that the veteran was with two units during his service in Vietnam and his stressor accounts have not provided any information detailing when the alleged events occurred, his unit at the time. His service with the 647th QM Company lasted for about 11 months. The U. S. Army and Joint Services Records Research Center (JSRRC) has advised that they can only research stressful events if there are several items of specific information: 1) the veteran's claim number and Social Security number; 2) a two-month specific date range for when the stressful event occurred; 3) the veteran's unit of assignment during the stressful event; and 4) the geographic location where the stressful event occurred. Without clearer information regarding the dates, names of any casualties, and, in some instances, the locations of the events, further research regarding the veteran's alleged stressor events cannot be completed. The Board notes that a May 2004 treatment summary from Fort Worth Vet Center social worker, S. A., a November 2004 letter from A. L., D. O. of the Kirksville College of Osteopathic Medicine of A.T. Still University of Health Sciences, and VA treatment records show diagnoses of PTSD based on the veteran's history of stressor events. However, the validity of such diagnoses is dependent on the existence of credible supporting evidence of an in-service stressor. As there is no independent evidence supporting the alleged stressors and no possibility of obtaining such independent evidence, etiological opinions linking the veteran's PTSD to these stressors are found to be not probative. A medical opinion premised upon an unsubstantiated account is of no probative value and does not serve to verify the occurrences described. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); see also Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996) (finding that an opinion by a mental health professional based on a post- service examination of the veteran cannot be used to establish the occurrence of a stressor). In summary, the record does not show that the veteran engaged in combat with the enemy and there is no credible supporting evidence of an in-service stressor. As the threshold requirements are not met, the preponderance of the evidence is against this claim; hence, the benefit of the doubt doctrine does not apply and the claim must be denied. ORDER Service connection for PTSD is denied. REMAND Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). As previously noted, a VCAA notice letter consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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 possession that pertains to the claim. VCAA notification letters were issued in February 2004 (COPD), May 2004 (sleep apnea and erectile dysfunction), October 2004 (BPH), and November 2005 (hypertension). While these letters substantially complied with VCAA notice requirements and told the veteran the evidence he needed to submit to substantiate a service connection claim, they did not specifically inform him of the requirements for proving a claim of secondary service connection. Hence, the veteran should be given this notice on remand. Regarding the claims of service connection for BPH, COPD, and sleep apnea as secondary to service-connected diabetes mellitus, a November 2005 VA examiner provided the following opinion: "None of these three conditions can reasonably be attributed to diabetes mellitus as causative. Nothing in the records nor in medical literature link these conditions to diabetes mellitus. Therefore I can opine with assurance that there is no likelihood that his service-connected diabetes mellitus has caused [BPH], asthma/COPD, or obstructive sleep apnea." On August 2004 VA examination, the examiner provided the following opinion regarding a relationship between service-connected diabetes and hypertension and erectile dysfunction. The examiner stated that hypertension and erectile dysfunction started prior to the onset of diabetes and that it "is less likely than not that Hypertension and impotence developed secondary to Diabetes." While these opinions addressed whether diabetes caused the claimed conditions, they did not address the pertinent question of whether service-connected diabetes aggravated any of the conditions. An answer to this question is critical to a fair adjudication of the veteran's claims. Hence, remand for another examination is required. Accordingly, the case is REMANDED for the following: 1. The RO should send the veteran a letter providing him the notice required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) and specifically advising him of the evidence required to support a claim of secondary service connection. 2. The RO should arrange for the veteran to be scheduled for appropriate examination(s) to determine the following: Whether the veteran's COPD, BPH, erectile dysfunction, sleep apnea, and hypertension have been aggravated by his service-connected diabetes mellitus. If it is determined that service- connected diabetes-mellitus aggravated any of the above conditions, an opinion regarding the degree of disability due to aggravation should be provided. The veteran's claims file must be reviewed by the examiner(s) in conjunction with the examination(s) and the examiner(s) must explain the rationale for the opinions given. 3. The RO should then re-adjudicate the claims. If any remain denied, the RO should issue an appropriate supplemental statement of the case and give the veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs