Citation Nr: 1007680 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 07-18 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to August 1975. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (hereinafter VA) Regional Office in Atlanta, Georgia, (hereinafter RO). FINDINGS OF FACT 1. The Veteran's claimed in-service stressors are not related to combat. 2. The occurrence of any of the claimed in-service stressors cannot be verified or have not been supported by credible corroborating evidence. 3. There is no competent evidence linking a current psychiatric disability to service. CONCLUSION OF LAW A psychiatric disorder to include PTSD was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The duty to notify was fulfilled in the instant case by letter dated in March 2006 prior to initial adjudication that informed the appellant of the information and evidence necessary to prevail in his claim. As for the duty to assist, the service treatment reports, service personnel records and VA clinical reports have been obtained. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. II. Legal Criteria/Analysis It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the 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) (West 2002); 38 C.F.R. § 3.102 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a), 3.304. Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. 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). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of: (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Establishing service connection for PTSD requires (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f); Anglin v. West, 11 Vet. App. 361, 367 (1998); Gaines v. West, 11 Vet. App. 353, 357 (1998), Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Suozzi v. Brown, 10 Vet. App. 307 (1997). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). See generally Cohen v. Brown, supra; 38 C.F.R. § 4.125. The evidence required to support the occurrence of an in- service stressor for PTSD varies "depending on whether or not the Veteran was 'engaged in combat with the enemy'. . . . Where . . . VA determines that the Veteran did not engage in combat with the enemy . . . the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor." See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The requisite additional evidence may be obtained from sources other than the Veteran's service medical records. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996), aff'd, 124 F.3d 228 (Fed. Cir. 1997) (table); see also Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); Doran v. Brown, 6 Vet. App. 283 (1994); Zarycki v. Brown, supra. The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a Veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). The Board is bound by the holding of the General Counsel opinion. 38 U.S.C.A. § 7104(c) (West 2002). Pursuant thereto, a PTSD claim is to be evaluated based upon "all pertinent evidence in each case, [with] assessment of the credibility, probative value, and relative weight of the evidence," with "no statutory or regulatory limitation on the types of evidence that may be used in any case to support a finding that a Veteran engaged in combat with the enemy." Id. If the evidence establishes that the Veteran engaged in combat with the enemy and his or her 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 or her lay testimony alone may establish the occurrence of the claimed in-service stressor. Where a determination is made that the Veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau, Dizoglio, supra. In such cases, the record must contain corroborative evidence that substantiates or verifies the Veteran's testimony or statements as to the occurrence of the claimed stressor. See West v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, supra. If a PTSD claim is based on an in-service personal assault, evidence from sources other than the Veteran's service records may corroborate an account of a stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. This notice was accomplished in this case by way of a PTSD stressor questionnaire that was mailed to the Veteran in conjunction with the March 2006 notification letter referenced above. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f) (2009). The Board notes that the appellant was not a Veteran of combat, nor does he assert that he was a combat Veteran or that he developed PTSD as a result of a combat stressor. (His DD Form 214 reflects service as a supply specialist with no foreign service but no awards or decorations indicative of combat.) As such and under the authority cited above, in order for the Veteran to prevail, the record must reveal corroborative evidence that substantiates or verifies the Veteran's statements as to the occurrence of a stressor he claims to have resulted in PTSD. Id. See also Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) ("Just because a physician or other health professional accepted appellant's description of his [wartime] experiences as credible and diagnosed appellant as suffering from PTSD does not mean the [Board is] required to grant service connection for PTSD.") The Veteran has asserted that he developed PTSD due to being sexually assaulted during service on more than one occasion, and the record does include VA clinical reports reflecting discussion from the Veteran about suffering from flashbacks and memories of sexual abuse in service and diagnoses of PTSD. (See VA mental hygiene clinic notes dated from May 2005 to May 2007). However, to the extent that they are even capable of verification, which is doubtful given the nature of the stressors as reported by the Veteran, a review of the record reveals no reliable evidence that might corroborate any of the stressors as alleged by the Veteran. In short, the objective evidence of record does not show that the Veteran engaged in combat with the enemy, and therefore his statements are not sufficient to establish the occurrence of the claimed stressors. His service stressors therefore must be established by official service records or other credible supporting evidence. However, the Veteran has not provided sufficiently specific information to support the alleged stressors. Accordingly, the claim for service connection for PTSD must be denied. In reaching the determination above, the Board has made every effort, while carefully reviewing the evidence of record, to ensure that the particular requirements for developing claims for service connection for PTSD based on personal assault codified at 38 C.F.R. § 3.304(f)(3) have been complied with. In this regard and as noted above, the Veteran was provided with the notice as to the type of information, to include sources other than service records, which might support such claims, by the aforementioned questionnaire that accompanied the March 2006 letter. The record otherwise reveals that every effort has been conducted to obtain information to support the Veteran's claim, to include obtaining the service personnel records to determine if any evidence therein might corroborate the Veteran's contention, and to notify him of the evidence needed to support his claim. In this regard, the Board notes that it has long been held that the duty to assist is not a "one way street," and that when, as in the instant case with respect to specifics as to alleged stressors, it is the Veteran that has the "information that is essential in obtaining the putative evidence," the Veteran cannot "passively wait" for the assistance of the VA. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In sum, the weight of the evidence is against a conclusion that the Veteran has PTSD as result of the service. As for psychiatric diagnoses other than PTSD, the post- service evidence reflects evidence of a variously diagnosed psychiatric disorder since the time of an August 1997 VA examination that indicated the Veteran carried a diagnosis of manic depressive disorder and anxiety disorder. A November 2004 VA outpatient treatment report noted that the Veteran had been receiving treatment for manic depressive disorder since 1993. The diagnosis at that time was bipolar disorder. The service treatment reports, to include the July 1975 separation examination, did not reflect a psychiatric disorder, although it was noted on the medial history collected at service separation that the Veteran had depression and excessive worry. None of the post service evidence links a current psychiatric disability to service. As for the Veteran and his wife's' assertions that he has a current psychiatric disorder as a result of service, such assertions cannot be used to establish a claim as laypersons are not qualified to render a medical opinion regarding the etiology of disorders and disabilities. Espiritu; cf. Jandreau. As such, and given the lack of any evidence linking a current psychiatric disability to service, service connection for a psychiatric disorder other than PTSD must also be denied. Hickson, supra. Finally, in reaching the above decisions, the Board considered the doctrine of a reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection for a psychiatric disorder to include PTSD, the doctrine is not for application. Gilbert, supra. ORDER Entitlement to service connection for a psychiatric disorder, to include PTSD, is denied. (CONTINUED ON NEXT PAGE) ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs