Citation Nr: 1007352 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 04-38 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from September 1968 to June 1970. The appeal arises from a rating decision in November 2004 by the above Department of Veterans Affairs (VA) Regional Office (RO). In May 2007, the Board denied service connection for PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By April 2008 Order, the Court remanded this case to the Board for further action consistent with the directives contained therein. The case was then remanded by the Board in August 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. CONCLUSION OF LAW Service connection for PTSD is not established. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304(f) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pertinent Statutes and Regulations for 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). 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). 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). 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. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Factual Background and Analysis The Veteran claims that he incurred PTSD while serving with the US Army along the demilitarized zone (DMZ) in Korea in the late 1960s. In this case, the record contains evidence favorable to the claim in the form of VA outpatient treatment reports dated in October 2004 and June 2005 from a VA psychologist who diagnosed PTSD based on the Veteran's exposure to multiple traumatic events during his tour in Korea. He stated that although the Veteran was not involved in direct combat in the line of duty, it appeared that he was exposed to significant traumatic events, which could produce PTSD. The examiner noted multiple disabling symptoms, including reexperiencing symptoms, avoidance behavior and hyperarousal. The Veteran has identified several events which he considered to be the precipitating causes of his claimed PTSD. During his psychological assessment in October 2004, the Veteran stated that he served with the 57th Infantry Division as a machine gunner for approximately 10 months in Korea. However, he reported that he was not involved in direct combat, but witnessed fellow soldiers who were killed by old land mines during training exercises, experienced sniper attacks near the DMZ and saw decomposed bodies of Korean civilians while on patrol. He did not provide any details such as the names of those killed. In a subsequent statement date in March 2006, the Veteran stated that while stationed in Korea he was given medications to stay awake and that the side effects caused him to "go off the deep end" and that He stated that he lost his rank as a result. In this case there is no evidence to suggest that the Veteran engaged in combat with an enemy force. His DD Form 214 and personnel records indicate that he served with Company B, 2d Battalion, 32d Infantry in Korea from May 1969 to April 1970. These records also show that his primary military occupational specialty (MOS) was light weapons infantryman and that he did not receive any commendations or citations typically awarded primarily or exclusively for circumstances relating to combat. Although the Veteran served in Korea during a time of tension along the DMZ, he nevertheless served there at a time when no active hostilities occurred between North and South Korea. 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). A further review of service personnel records reflects that the Veteran's rank was reduced effective January 6, 1970 and service treatment records show that two days later he complained of nightmares that occurred usually after drinking. He essentially argues that the coincidence of these events tends to support his assertions regarding experiencing PTSD-inducing stressors in service. However, there is no indication that either the misconduct or the nightmares were in any way related to a psychiatric condition. In its August 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. Nevertheless, the RO requested the morning reports for Company B, 2d Battalion, 32d Infantry,7th Infantry Division for the same timeframe and verification of the incidents identified by the Veteran, but no records were found. In 2009, the Defense Personnel Records Image Retrieval System (DPRIRS) indicated review of several Chronology of Events from 1969 submitted by the Center of Military History, but were unable to find any incidents as described by the Veteran occurring during the period November 1, 1969 through January 31, 1970. However a Chronology of US-Korea Peoples Army Firefights shows that on October 18, 1969 a US Infantry Division jeep was ambushed in the DMZ resulting in four U.S. personnel killed. They were unable to identify the subordinate unit to which they were assigned. A Chronology of Incidents in Korea, documented by the 2nd Infantry Division, shows that on October 18, 1969, four soldiers of the 7th Infantry Division were killed in a daylight ambush by North Koreans. Each was shot in the head. Their truck was flying a white truce flag. A North Korea Chronology shows that in October 1969 four soldiers were ambushed and killed by North Koreans near the southern boundary of the DMZ. The only incident found in December 1969 was of North Korean agents hijacking a South Korean airliner. In a June 2009 VA memorandum, it was determined that information required to corroborate the stressful events described by the Veteran was insufficient to send to JSRRC and/or insufficient to research the case for Marine Corps or National Archives and Records Administration (NARA) records. All procedures to obtain this information from the Veteran have been properly followed. All efforts to obtain the needed information have been exhausted and any further attempts would be futile. Therefore, the Veteran's identified stressors are currently either unverified or unverifiable. Here, a VA psychologist has diagnosed PTSD as result of in- service stressors based on his belief as to the Veteran's credibility regarding the alleged events. However, because the claimed stressors have not been verified, the diagnosis of PTSD was 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 by the VA psychologist, the medical 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 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 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 claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 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), as amended, 73 Fed. Reg. 23,353 (April 30, 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. Court of Appeals for the Federal Circuit previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the U.S. Supreme Court has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of decision of the Board, a court shall take due account of rule of prejudicial error. The Supreme Court in essence held that - except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In letters dated in July 2004, March 2006, October 2008, and February 2009 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. Relevant in-service and post-service treatment reports are of record and the RO obtained the Veteran's service personnel records. The Board acknowledges that the Veteran was not examined for the purpose of addressing his claim; however, the evidentiary record already contains a diagnosis of PTSD. In this case, evidence of a verified stressor event upon which a valid diagnosis of PTSD could be based has not been presented. Thus, because the evidence of record is sufficient to make a decision on the claim, VA is not required to provide the Veteran with a medical examination absent a showing of a current disability and an indication of a causal connection between the claimed disability and service. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). 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 Veterans Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for PTSD is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs