Citation Nr: 1004384 Decision Date: 01/28/10 Archive Date: 02/16/10 DOCKET NO. 02-08 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from June 1979 to February 1982. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that denied the benefit sought on appeal. The Veteran appeared at a Travel Board hearing in January 2006 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is associated with the claims file. In a decision dated in April 2006, the Board reopened the Veteran's claim, but denied it on the merits after a de novo review. He appealed the decision to the United States Court of Appeals For Veterans Claims (Court). In a May 2008 Memorandum decision, the Court determined the Board did not provide sufficient reasons and bases for its decision and remanded it to the Board for further consideration. The Court's Order implementing the decision is also dated in May 2008. To comply with the Court's remand, the Board remanded the case in October 2008 to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development. The AMC/RO completed the additional development as directed, continued to deny the claim, and returned the case to the Board for further appellate review. The November 2009 supplemental statement of the case informed the Veteran of this action. See 38 C.F.R. § 19.31(2009). In February 2009, while the case was on remand, the RO received notice from a private attorney that he represented the Veteran, and the requisite, signed, VA Form 21-22a, was provided. See 38 C.F.R. § 20.603 (2009). While the case was still on remand, in August 2009, the attorney informed the RO he had withdrawn from representing the Veteran. See 38 C.F.R. § 20.608 (2009). An August 2009 RO letter informed the Veteran of the withdrawal and asked the Veteran to submit another VA Form 21-22a that notified VA who his representative would be. The claims file does not note a subsequent appointment from the Veteran. As a result, the Board deems the Veteran as proceeding pro se at this time. The Veteran had 30 days to respond to the November 2009 supplemental statement of the case. 38 C.F.R. § 20.302(c). It was mailed on November 17, 2009, which means the 30-day response time commenced to run as of the next day and expired on December 17, 2009. See 38 C.F.R. § 20.305(b). The Veteran signed his response on December 18, 2009, and he faxed it to the AMC on December 19, 2009, both of which occurred after December 17, 2009. Thus, his response was not timely. In any event, the Board notes the Veteran only noted that he had additional evidence to submit, and he did not request an extension of time to do so. To date, no additional evidence has been received. FINDINGS OF FACT 1. The preponderance of the probative evidence shows the absence of a diagnosis of PTSD that complies with American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition criteria. 2. The Veteran's claimed in-service stressors are not confirmed. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in July 2003 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes the letter did not provide notice of how disability ratings and effective dates are assigned in the event service connection is granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that was the only content deficiency of the July 2003 letter. The omission did not, however, prejudice the Veteran. First, the Board notes a November 2008 supplemental duty to assist letter informed the Veteran how disability evaluations and effective dates are determined. Second, in light of the decision reached below, an initial evaluation or effective date will not be an issue. Thus, any error is rendered harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). The Board also notes the VCAA requires notice prior to the issuance of a decision, see 38 C.F.R. § 3.159(b)(1), and that both the July 2003 and November 2008 letters were issued after the initial unfavorable decision on the Veteran's claim. Nonetheless, the Board finds the Veteran was not deprived of a meaningful opportunity to participate in the adjudication of his claim. See Washington v. Nicholson, 21 Vet. App. 191 (2007). The statement of the case and supplemental statements of the case fully set forth VA's notice and assistance requirements. Further, the claim was reviewed on a de novo basis on more than one occasion, the most recent review occurring in November 2009. Thus any error was rendered harmless. See Shinseki v. Sanders, ___ U.S. ___, 129 S. Ct. 1696, 173 L.Ed.2d 532 (2009). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). While the Veteran may not have received full notice prior to the initial decision, after notice was provided, as found above, he was afforded a meaningful opportunity to participate in the adjudication of the claim via the presentation of pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Governing Law and Regulation Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with the applicable regulatory criteria, which is: 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. 38 C.F.R. § 3.304(f). The applicable criteria of Diagnostic and Statistical Manual of Mental Disorders determine whether an applicant has a valid diagnosis of PTSD. See 38 C.F.R. § 4.125. If the evidence establishes that a 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, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). If, however, a veteran did not serve in combat, which is the case with the Veteran's claim in the instant case, or if the claimed stressor is not related to combat, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The Veteran's testimony alone cannot, as a matter of law, establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Furthermore, an opinion by a medical health professional based on post-service examination of the Veteran cannot be used to establish the occurrence of a stressor. See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status may, but not always, constitute competent medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Analysis The Veteran claims two events as in-service stressors. The first incident, according to the Veteran, occurred during his tour in the Republic of Korea in October 1980. While on a patrol near the demilitarized zone, a U.S. patrol apparently encountered another U.S. patrol, comprised entirely of African-American troops, returning from a reconnaissance mission. The Veteran asserted a racist captain purposely assigned only African-American troops to go on the patrol. When the first contingent heard the sounds of someone approaching, the captain in charge of the Veteran's contingent opened fire. When the returning patrol realized they were being fired upon, they started waiving a U.S. flag and shouting they were U.S. troops. This, in turn, drew the attention of nearby North Korean soldiers who apparently thought they were being attacked, and they opened fire. The incident reportedly triggered a high level U.S. Army inquiry. The Veteran noted he was not part of either contingent, but he claims that he monitored the claimed event. The second incident reportedly occurred during the Veteran's training at Ft. Dix, New Jersey, in July 1979. He reports witnessing a member of his unit kicked and beaten to death by drill sergeants after he collapsed during a march. In partial support of his assertions, the Veteran submitted a copy of June 1979 article in the New York Times which noted the then Chairman of the House Armed Services Committee had accused the U.S. Army of extreme negligence in handling complaints of trainee abuse at Ft. Dix. The article noted committee hearings heard witnesses describe violent beatings of trainees by drill sergeants in 1978. In a February 2005 statement, the Veteran noted this incident is the primary basis for his claim. Service treatment records are entirely negative for any entries related to complaints, findings, or treatment for, an acquired mental disorder or symptoms of an acquired mental disorder. The Veteran was administratively discharged prior to the expiration of his enlistment. An entry in his records notes a separation examination was not required. In as much as an examination was optional, the Veteran was offered an examination prior to his separation but he declined it. Medical Diagnosis. The Veteran was confined for approximately three years for making terroristic threats. September 2003 treatment records of the facility where he was confined note complaints of anxiety and auditory hallucinations. He reported the voices related to his military experiences, which are not specifically noted in the entry. The examiner entered an assessment of PTSD. The RO requested a VA examination in March 2005. The examination request noted service records revealed that the Veteran and the soldier who died at Ft. Dix, Private H, were in fact in the same unit. The request also noted that while records showed that Private H died of natural causes, the RO "conceded" the Veteran may have been in close proximity to him when he died. The March 2005 VA examination report notes the examiner conducted a comprehensive review of the claims file and all of the Veteran's medical records. The examiner noted the Veteran's report of the incident at Ft. Dix and his involvement in it. Mental status examination revealed the Veteran as appropriately groomed and cooperative throughout the interview. No involuntary movements were noted, and his speech was fluent. His affect was neutral to pleasant, and the Veteran described his mood as optimistic. His thoughts were coherent and logical. On the mini-mental status examination, the Veteran scored 28/30. He was oriented but he did not know the correct date. He refused to do serial sevens and spell a five-letter word backwards, but he was able to complete serial threes without error. The Veteran made one error while completing a three-stage command. His fund of general information was good, as was his judgment. Interpretation of proverbs was appropriate. The examiner rendered an Axis I diagnosis of malingering and an Axis II diagnosis of personality disorder not otherwise specified. The examiner noted the Veteran did not meet the criteria for PTSD as certain criteria were not met, and there was concern regarding the veracity of the Veteran's reported stressor. The examiner noted that the claims file showed the Veteran's account had changed over time. The examiner also noted that following the interview the Veteran asked the examiner to read a document with the symptoms needed for a 100 percent evaluation. The examiner found that the Veteran's actions suggested his report of symptoms were impacted by secondary gains motive, which were previously documented in medical entries of May, June, and October 2002. The examiner opined that the Veteran's maladaptive personality characteristics impaired his psychological functioning. As noted in the Introduction, an April 2006 Board decision denied the Veteran's claim. The Court, however, determined the Board did not address the RO's concession or other evidence in the claims file. The Board's 2008 remand directed the RO to obtain the relevant records from Private H's service personnel records and instructed the RO to refer the claim file back to the 2005 examiner for clarification, if the examiner was still available. The May 2009 examination report notes the 2005 examination was conducted by another examiner, and that the remand instruction asked which specific diagnostic criteria were found not to have been met by the examiner in 2005. The 2009 report notes the examiner conducted a comprehensive review of the claims file. As concerns the assessment noted in confinement facility records, the examiner noted that the prison contract psychiatrist's progress notes did not contain a thorough discussion of the diagnostic criteria for PTSD. Further, they did not address how the Veteran met the criteria for PTSD. Also noted was the fact that VA records showed the Veteran to have been seen on many occasions by many different clinicians over the years, but he had not been diagnosed with PTSD, though he had been diagnosed on occasion with PTSD symptoms. The examiner noted that a central question in the Veteran's case was the reliability and validity of his reports. Of the factors that might impact the assessment of the Veteran's credibility, the first was the clear evidence that he has a personality disorder with prominent antisocial traits, and also traits of what is sometimes referred to as malignant narcissism. The examiner noted that, after reviewing all of the available evidence, he opined the Veteran's personality disorder is his most compelling life difficulty. The Veteran's personality disorder results in intense anger and unhappiness related to chronically feeling misunderstood, mistreated, and unfairly denied his perceived just due. He greatly resented authority figures and the actual rules and limitations of reality itself, in that his deep needs to be taken care of and nurtured were chronically frustrated by what reality gave him. The examiner also noted the Veteran's history of extremely manipulative behavior, as shown by his threats of violence to self and others in the interest of obtaining what he wants, to include service connection. The diagnoses rendered over the years were noted to include adjustment disorder, malingering, conversion disorder, posttraumatic stress syndrome, depressive disorder not otherwise specified, possible psychosis, marijuana abuse, and alcohol abuse. Notably, none of the medical records reviewed noted the full diagnosis of PTSD. The examiner further noted the Veteran was fixated on, or even obsessed, with secondary gain considerations, which were clearly noted in the VA outpatient records. Finally, the examiner noted, the Veteran had provided inconsistent reports over the years and, at times, his assertions had been fantastic. As an example of the assessment of fantastic assertions, the examiner noted the Veteran initiated his quest for PTSD in the 1990s based on the incident in Korea, and then later he started to focus on the death of Private H. During the interview with the 2009 examiner the Veteran did not mention the incident in Korea. Among the more incredible assertions made by the Veteran, the examiner noted, was that the examiner at the 2005 examination tried to rape him, and that he worked "undercover" for the Federal Bureau of Investigation. All of these actions, the examiner noted, were consistent with a fixation on secondary gain and the quest to extract what the Veteran considered his just due. As to whether the criteria for a diagnosis of PTSD were met in the past and currently, the examiner noted it was very important to consider all of the reliability and validity problems with the Veteran's self-reports, as shown by the factors set forth earlier. If all of those credibility problems were taken into account, the examiner noted, all of the diagnostic criteria for a diagnosis of PTSD were called into question, and it was less likely than so that the Veteran met them. On the other hand, if the Veteran's accounts of his claimed PTSD symptoms were accepted as completely accurate and valid, he still specifically denied all symptoms of avoidance. Avoidance symptoms are required by Criterion C for a diagnosis of PTSD under the Diagnostic and Statistical Manual of Mental Disorders. The examiner's diagnostic findings were consistent with those of the 2005 examination, with the addition of marijuana and alcohol abuse in Axis I. Personality disorders are not diseases or injuries within the meaning of applicable legislation on service connection. See 38 C.F.R. § 3.303(c). Stressor Verification. The Board finds the Veteran's statements are incredible. A number of his assertions are incredible on their face, and others are refuted by the available objective evidence of record. As concerns the Veteran's claimed incident in Korea, his parent command during that tour was the 17th Infantry Regiment. In an earlier claim submitted by the Veteran, a January 1997 report from the U.S. Army and Joint Services Environmental Support Group (ESG) noted histories submitted by the 17th Infantry Regiment noted that, while North Korean and South Korean casualties occurred in 1980, no U.S. casualties were indicated. The Veteran asserted in written submissions that the ESG in fact confirmed the incident. In a June 1995 statement, the Veteran asserted that, in the aftermath of the captain having shot and killed four U.S. soldiers, the President flew to the scene of the incident, and that a general officer ripped the captain's bars (rank insignia) off of his uniform at the scene, and he was then Private K. The January 1997 ESG report also noted there was no record of any disciplinary action against a Captain K, to include trial by court-martial. In an October 1996 statement, the Veteran noted the slain soldiers' families were told they were killed by the enemy. At his hearing the Veteran made no mention of the President having been present at the scene of the Korea incident, and he also said there were no casualties. See Transcript, p. 18. The objective facts of record also show the Veteran's incredibility on the claimed stressor related to Private H's death. The Board finds no substantive basis for the RO's apparent concession in the March 2005 examination request that the Veteran was in close proximity to Private H at the time of his death, and the Board specifically rejects any similar concession. Private H's records do note that he was assigned to the same unit as the Veteran while in training at Ft Dix. Thus, it is not unreasonable to infer that the Veteran may well have been involved with the same unit activities as Private H on the day of his death, to include the march during which Private H collapsed. There is nothing in the record, however, to indicate the Veteran's close proximity to Private H at the time of the salient events. The Line of Duty Investigation into the circumstances of Private H's death includes statements of those who were in close proximity to him at the time he became ill and attended to him. None of the statements identify the Veteran as having been near Private H when he fell out of formation or involved with assistance to him. Further, the Veteran has insisted over the years that Private H was kicked and beaten to death after he collapsed. One of his statements notes that other troops who observed the abuse were shouting to the drill sergeants to stop but to no avail. The autopsy report notes that there were no signs of injury on any part of Private H's body. The immediate cause of death was determined to be an acute cardiac arrest. Laboratory tests, review of medical records, and subsequent pathology input, noted contributing factors may have been residuals of an earlier respiratory infection, Private H's less than optimal physical conditioning, his obesity, and heat prostration. There simply is no evidence that Private H died secondary to violence. The 1979 New York Times article the Veteran submitted actually tends to suggest a conclusion opposite of the one he asserts. In the aftermath of hearings by the House Armed Services Committee into how training was conducted at Ft Dix, it is highly doubtful that any abusive activity-if it previously occurred, would continue. At the hearing the Veteran noted Private H died at the scene, a helicopter was flown in to get him, he helped to load him onto the helicopter, and the drill sergeants were court- martialed. The Line of Duty investigation notes an ambulance was summoned to transport Private H to a medical facility, where he was later pronounced dead after resuscitation efforts failed. Although Private H did not die secondary to violence, he did in fact die while on duty, and the Veteran would have been in a position to have known or at least have heard of Private H's demise and the general circumstances of his death. His claim, however, has historically been tied not to the mere death of Private H, but assertions of his having witnessed a fellow soldier, Private H, killed by drill sergeants' abuse. As already found above, the Board attaches no credibility to these assertions, and the probative evidence of record refutes them. In light of the above, the Board finds that the preponderance of the evidence is against the claim. 38 C.F.R. §§ 3.303, 3.304(f). The benefit sought on appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs