Citation Nr: 1007496 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-24 299 ) 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 C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 Regional Office (RO) in St. Louis, Missouri rating decision, which denied the claim on appeal. FINDING OF FACT The preponderance of the evidence does not show that the Veteran has a current diagnosis of PTSD that has been attributed to any verified in-service stressor, nor does the evidence establish that the Veteran engaged in combat operations. CONCLUSION OF LAW A PTSD disability was not incurred in or aggravated by a verified, in-service stressful incident. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, the Veteran's Administration (VA) has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The VCAA letter dated in June 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The June 2006 letter from the RO explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records are in the file. The Veteran has not indicated any treatment for PTSD or other psychiatric disability from the VA or otherwise. Furthermore, the Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The VA's duty to assist the Veteran with the development of his claim does not negate the Veteran's ultimate responsibility to assure that the VA receives all the information and evidence needed to substantiate his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the June 2006 notice letter, the RO included a PTSD questionnaire, requesting specific information regarding the Veteran's alleged in-service stressors. The claims file does not indicate that the Veteran returned a completed PTSD questionnaire. The subsequent January 2007 rating decision specifically noted the Veteran's failure to provide verifiable stressor information as a basis for the denial. The Veteran submitted a notice of disagreement (NOD) in January 2008, but failed to include any stressor information. The RO issued a statement of the case (SOC) in June 2008 that continued the denial of service connection, again noting as a basis the Veteran's failure to provide any verifiable stressor information. The Veteran filed a substantive appeal in August 2008, but again failed to include any stressor information. In summary, the only stressor information supplied by the Veteran was a statement in his claim that he was subjected to multiple rocket and mortar attacks and infantry assaults. However, he has never specified with any detail when or where these events occurred. In light of the request for information sent by the RO to the Veteran and the lack of sufficient detail regarding his stressors so as to allow for further attempt at verification, the Board finds no basis for pursuit of verification. 38 C.F.R. § 3.159(c)(2) and (3). In essence, no further notice or assistance is required to fulfill VA's duty to assist the appellant 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, 16 Vet. App. 183 (2002). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(4) (2009). In this case, the Board concludes an examination is not needed. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be discussed in greater detail below, the evidence does not show that the Veteran served in combat, and there is no evidence verifying that an in-service stressor occurred. Without such evidence, providing the Veteran a medical examination for PTSD would serve no purpose in advancing his claim as his claim would still miss one of the necessary elements for establishing service connection for PTSD. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2009). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2009). 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 C.F.R. § 3.304(f)(1) (2009); see also, 38 U.S.C.A. § 1154(b) (West 2002). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). The Veteran contends that he has PTSD as the result of his active duty service. Specifically, the Veteran reports that he was assigned to fire support bases as an artilleryman and experienced numerous rocket and mortar attacks, as well as infantry assaults. Given the Veteran's service in Vietnam from approximately June 1968 to August 1969 and service in the artillery, the Board has considered the potential application of 38 U.S.C.A. § 1154(b) (West 2002). However, the Veteran was not in receipt of any awards and/or decorations that would suggest that he participated, i.e., fired a weapon, in actual combat with the enemy. Although the Veteran's DD 214 shows that he was awarded that Vietnam Service and Vietnam Campaign Medals, the Board notes that these citations were awarded to military personnel who served in direct support of operations during the Vietnam War. Based on the foregoing, the Board concludes that the Veteran did not engage in combat, that the prescriptions of 38 U.S.C.A. § 1154(b) are not applicable, and that there must be credible supporting evidence of record that the alleged stressors actually occurred. As discussed above, however, the Veteran has not submitted any specific information that would allow his claimed in- service stressors to be confirmed. In short, the claims folder contains no evidence of the alleged in-service stressor incidents, aside from the Veteran's general allegations of exposure to artillery fire and enemy assaults. As the Veteran has offered no specific information as to when or where these events occurred, the Board is unable to verify these stressor incidents. In the absence of verified combat exposure, the Board is not required to accept a Veteran's uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). As there is insufficient evidence of a verified in-service stressor, service connection for PTSD is not warranted. In addition to the absence of verifiable stressor information, the Board observes that the Veteran does not have a current diagnosis of PTSD, nor is there evidence the Veteran has ever been treated for PTSD or other psychiatric disorder. To that end, the Board notes the Veteran's service treatment records do not indicate any complaints, treatment, or diagnoses of PTSD or other psychiatric disorder, including both his February 1967 enlistment examination and August 1969 separation examination. The Veteran also completed reports of medical history at the time of his enlistment and separation examinations, wherein he denied nervous trouble, trouble sleeping, or frequent or terrifying nightmares. The Veteran has failed to submit or identify any post-service treatment for PTSD or any other psychiatric disorder. In order for service connection to be granted there must be competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the Veteran's sincere belief in his claim and his description of his symptoms, there is no competent medical evidence of record showing the Veteran to have a current diagnosis of PTSD. While the Board acknowledges that the Veteran sincerely believes he has PTSD and that the disorder was caused by the Veteran's military service, and that he is competent to describe the psychiatric symptoms he experiences, the Veteran is not demonstrated to have the requisite medical knowledge or training to either diagnose PTSD or link a current psychiatric diagnosis to military service. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, this is not a case in which the Veteran's lay beliefs alone can serve to establish a diagnosis of PTSD or any association between the Veteran's claimed PTSD and his military service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). Accordingly, the claim is denied, as the preponderance of the evidence is against a finding that the Veteran engaged in combat with the enemy while on active duty, there is no independent verification of his reported in-service stressors, and he has not been diagnosed with PTSD. As noted above, the Veteran's lay testimony alone is not enough to establish the occurrence of the alleged stressor and he has not submitted evidence sufficient to permit verification of the claimed stressors. As there is no such evidence in this case, and no evidence of a diagnosis of PTSD in accordance with the criteria set forth in the DSM-IV, the preponderance of the evidence is against the claim, and it must be denied. The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not applicable, as there is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs