Citation Nr: 1007288 Decision Date: 02/26/10 Archive Date: 07/08/10 Citation Nr: 1007288 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 97-23 974 ) DATE FEB 26 2010 ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Mark R. Lippman, Esq. WITNESSES AT HEARING ON APPEAL The Veteran, K.R., and L.McG. ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from February 1967 to January 1969. The appeal arises from a rating decision in March 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 2005, the Veteran appeared at the RO with his representative and testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript is of record. In January 2006, the Board denied service connection for an acquired psychiatric disorder to include PTSD; service connection for a skin disorder; service connection for arthritis of multiple joints; service connection for a back disorder; service connection for chest pain; service connection for a genitourinary disorder; and service connection for chronic fatigue. The Veteran appealed the Board's decision, in part, to the United States Court of Appeals for Veterans Claims (Court). In a December 2007 order, the Court granted the litigative parties' Joint Motion to partially vacate and remand the Board's January 2006 decision. Pursuant to the actions requested in the Joint Motion, the issue of entitlement to service connection for PTSD was remanded to the Board for development and readjudication consistent with the directives contained therein. The case was then remanded by the Board in July 2008 for additional development and readjudication. FINDINGS OF FACT 1. The Veteran has a current diagnosis of PTSD, and medical providers have related the diagnosis to claimed in-service stressors. 2. The evidentiary record does not establish that the Veteran was engaged in combat with the enemy. 3. The Veteran's claimed in-service stressful experiences have not been corroborated by service records, or by other credible supporting evidence, and he has not provided sufficient information for VA to attempt to independently corroborate any such in-service stressor events. 4. There is no competent medical evidence that an acquired psychiatric disorder other than PTSD was manifested in service or within one year thereafter, nor is there competent evidence that such a psychiatric disorder is causally or etiologically related to service in any way. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder, to include PTSD, is not established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f), 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). 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 notice from VA 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice. In letters dated in July 2002, February 2005, and October 2008, the RO informed the Veteran of its duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon his claim. These letters also informed him of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. His in-service and pertinent post-service treatment reports are of record and the RO obtained VA examinations where necessary. All obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. Neither the veteran nor his attorney has suggested in any way that there is any prejudice due to a lack of proper VA notice or assistance, and they have demonstrated actual knowledge of the information and evidence necessary to substantiate the pending claim. It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Pertinent Statutes and Regulations - PTSD Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish coronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). 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(d). In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, such as psychoses (defined in 38 C.F.R. § 3.384), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,03.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (DSM-IV). 38 C.F.R. § 3.304(f). The Court of Appeals for Veterans Claims has taken judicial notice of the mental health profession's adoption of the DSM- IV. Cohen, supra. According to the current criteria, a diagnosis of PTSD requires exposure to a traumatic event, or stressor. A stressor involves exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and the person's response involved intense fear, helplessness, or horror. The sufficiency of a stressor is a medical determination, and the occurrence of a claimed stressor is an adjudicatory determination. Id. Furthermore, the pertinent regulation provides that 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 U.S.C.A. §§ 1154(b); 38 C.F.R. § 3.304(f)(1). However, in order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran's assertion that the stressful event occurred. A medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, supra, at 142; Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). Recent judicial caselaw has addressed the consideration of other symptoms of mental abnormality in a PTSD claim. See Clemons v. Shinseki, 23 Vet.App. 1 (2009) (scope of a mental health disability claim is not restricted to the diagnosis alleged, but includes any mental disability that may reasonably be encompassed by the claim). The entire thrust of the Veteran's and his attorney's arguments has focused on PTSD, but the Board also addresses the non-PTSD diagnoses herein. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit-of-the-doubt rule is inapplicable when the evidence preponderates against the claim. III. Factual Background and Analysis The Veteran contends that he has PTSD as a result of stressful events that took place during his tour in Vietnam from April 1968 to January 1969. In this case, the record contains evidence favorable to the Veteran's claim in the form of letters dated in April 2004 and June 2007 from a private physician, certified in traumatic stress conditions. He reported treatment of the Veteran for about three years for major symptoms of PTSD. He stated that the Veteran's PTSD was considered the result of his exposure to multiple traumatic events during his Vietnam tour (involving witnessing death and fearing for his own life) and his reaction to those events with fear and horror. In May 1999, a VA staff psychiatrist also diagnosed PTSD, based on the Veteran's experiences in Vietnam where he was in transportation and came under fire several times. The examiner noted multiple disabling symptoms, including nightmares and flashbacks, and opined that the Veteran was totally disabled due to PTSD resulting from his combat exposure. In multiple statements submitted with his claim, as well as hearing testimony, the Veteran has identified several events which he considered to be the precipitating causes of his claimed PTSD. During a RO hearing in December 1982, the Veteran testified that in Vietnam he was a cargo handler/boat operator and ran a boat that carried ammunition and supplies up and down a river. He stated that he was not in actual combat, but sometimes experienced sniper fire while riding in convoys. He testified that his convoys were not hit, and no one was killed or injured. However, he was in constant fear of being mined. He also indicated that he loaded and unloaded body bags, but did not provide any details of where and when he was assigned that duty, and did not know the names of those killed. He felt that these events had a tremendous impact on his life. However, in a stressor statement, received in February 1999, the Veteran reported that his convoys were frequently ambushed. He said he had witnessed bombed, wounded, and killed comrades, but did not provide the names of any of the casualties. Also of record is a lengthy May 2003 medical opinion from a private social worker who noted the Veteran's military history and service as a boat operator and hatch former. At that time the Veteran reported that he was under constant mental stress because of his duties and responsibilities which included rapid loading/unloading of supplies to the troops. The Veteran also reported that he experienced mental/emotional traumas including witnessing a member of his squad being crushed by a load of ammunition, but did not provide a name or any further details. He also elaborated upon these incidents at the March 2005 Travel Board hearing, but did not provide the name(s) of other soldiers involved. The Veteran's DD Form 214 and personnel records indicate that he served with the 97th Transportation Company from May 1968 to September 1968, and with the 155th Transport Company from September 1968 to January 1969, and that he participated in the Tet Counteroffensive campaign. These records also show that his primary military occupational specialty (MOS) was as a cargo handler, but that he did not receive any commendations or awards, such as the Combat Infantryman Badge, Purple Heart, or similar citation, typically awarded primarily or exclusively for circumstances relating to combat. Since combat status has not been established, the Veteran's statements alone cannot constitute conclusive evidence of the occurrence of the in-service stressor; rather, corroborating evidence is needed. In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the Veteran's testimony or statements as to the occurrence of the claimed stressor. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In its July 2008 Remand, the Board requested development of stressor information to be forwarded to the U.S. Army and Joint Services Records Research Center (JSRRC). However, the Veteran did not respond to VA's request for more specific information regarding his claimed stressors. Nonetheless, a copy of the Veteran's DD Form 214, together with the stressor information that was already of record, was submitted to the JSRRC. In 2009, the Defense Personnel Records Image Retrieval System (DPRIRS) indicated that they reviewed the Operational Reports-Lessons Learned (OR-LL) submitted by the 10th Transportation Battalion for the period November 1967 to October 1968, which document that the 97th Transportation Company was assigned to that particular battalion. The OR- LL's also document that the 10th Transportation Battalion and its attached units were engaged in cargo handling operations and their main base camp location was Cam Ranh Bay. However, the OR-LLs do not document any incidents regarding a cargo boat being ambushed resulting in casualties or any attacks at Cam Ranh Bay for the period between April and September in 1968. In addition, research was coordinated with the National Archives and Records Administration (NARA), but they were unable to locate 1968 unit records submitted by the 97th Transportation Company. In order to conduct a further research concerning specific combat incidents, and casualties, the date of the incident, type and location of the incident, full names of casualties, unit designations to company level, and other units involved must be provided. In a July 2009 VA memorandum, it was determined that information required to verify the stressful events described by the Veteran was insufficient to send to JSRRC and/or insufficient to research the case for Marine Corps or NARA records. The only specific time period that the Veteran has provided for a verifiable event was April 1968, as found in his February 1999 statement. Although he was not listed as being with the 97th Transportation Company until May 1968, a review of the OR-LLs for the 10th Transportation Battalion (parent unit of the 97th Trans. Co.) do not document any incidents of a cargo boat being attacked or ambushed or any attacks at Cam Ranh Bay during the period from April 1968 through September 1968. It was noted that morning reports could be obtained with the additional information, including the names of individuals killed, and a smaller window than April 1968-September 1968 within which to conduct a search. However, the Veteran has not furnished any additional details, and therefore the information required to document the stressful events is unavailable. In this case all procedures have been properly followed and all efforts to obtain needed information have been exhausted. Thus, further efforts would be futile, and the Veteran's stressors remain either unverified or unverifiable. The remaining records show continued psychiatric treatment of the Veteran for PTSD. These include additional private treatment records submitted by the Veteran in response to the RO's July 2009 Supplemental Statement of the Case, showing a pertinent diagnostic assessment of recurrent major depression. There was no response to the SSOC submitted by the Veteran's attorney, but the Veteran did expressly waive initial RO review of the newly proffered evidence. Here, both private and VA examiners have diagnosed PTSD as result of in-service stressors based on their belief as to the Veteran's credibility regarding the alleged events. However, because the claimed stressors have not been verified, the diagnoses of PTSD were based on a questionable history and may not be relied upon by the Board. See West v. Brown, 7 Vet. App. 70 (1994). See also Moreau v. Brown, supra (medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors). In other words, just because a physician or other health professional has accepted a veteran's description of his experiences as credible and diagnosed PTSD does not mean the Board is required to grant service connection for that disorder. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). We do recognize that such an opinion cannot be rejected solely because it is based upon history supplied by the claimant, but the critical question is whether it is credible in light of all the evidence. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). Here, without evidentiary support for the stressor(s) accepted as a basis for diagnosis in the above opinion, the opinion must be deemed speculative. As noted, the JSRRC has been unable to independently corroborate the occurrence of any of the claimed events, and the Veteran has not identified any other sources of information, which would corroborate any alleged in-service stressful experiences. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty for an assessment. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Such speculation is not legally sufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). See also 38 C.F.R. § 3.102 (reasonable doubt does not include resort to speculation or remote possibility). In summary, the Board finds that the Veteran has not alleged an in-service stressor that is verified or verifiable based on the information given, so as to provide a basis for the diagnosis of PTSD. In arriving at this conclusion, the Board has considered the Veteran's testimony given at a Travel Board hearing in March 2005. He essentially reiterated previously submitted information concerning his in-service stressor events, as well as symptoms consistent with complaints made during the course of his appeal. Moreover, as to any other acquired psychiatric disorder which is now present, the record contains no competent evidence of a causal nexus to service, of a psychosis within the first post-service year, or of manifestation and continuity since separation from service. In making the above determination regarding the Veteran's purported in-service stressor, the Board is cognizant of the holding of Pentecost v. Principi, 16 Vet. App. 124 (2002). In that case, the Court reversed the Board's denial of a claim for service connection for PTSD on the basis of an unconfirmed in-service stressor. In Pentecost, the veteran had submitted evidence indicating that his particular unit in Vietnam had been subjected to rocket attacks. The Court had previously pointed out that corroboration of every detail of a stressor under such circumstances, such as the veteran's own personal involvement, is not necessary. See also Suozzi v. Brown, 10 Vet. App. 307 (1997). The Veteran's claim herein may be distinguished from those in Pentecost and Suozzi, because he has submitted no independent evidence of the occurrence of a claimed in-service stressor, as to himself or his own military unit. Accordingly, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). ORDER Service connection for PTSD is denied. ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals