Citation Nr: 1018752	
Decision Date: 05/20/10    Archive Date: 06/04/10

DOCKET NO.  06-19 618	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUE

Entitlement to service connection for an acquired psychiatric 
disorder, to include posttraumatic stress disorder (PTSD). 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran had active military service from April 1971 to 
April 1973.  The Veteran's DD-214 states he served in Vietnam 
from September 1971 to April 1972. 

The appeal comes before the Board of Veterans' Appeals 
(Board) from a November 2004 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Louis, Missouri, which denied entitlement to service 
connection for PTSD. 

In May 2009, the Board remanded the claim for further 
development. 

In a March 2006 statement, the Veteran requested a hearing on 
his appeal.  Accordingly, the Veteran was scheduled to appear 
for a hearing on December 2, 2009.  In a November 2009 
correspondence, the Veteran's representative indicated that 
the Veteran stated that he wished to withdraw his request for 
a hearing.  The Veteran's request for a Board hearing is 
considered withdrawn.  38 C.F.R. § 20.704 (2009).

With regard to the Veteran's claim for service connection for 
PTSD, the Board is cognizant of the recent decision of the 
U.S. Court of Appeals for Veterans Claims, Clemons v. 
Shinseki, 23 Vet. App. 1 (2009).  In Clemons, the Court found 
that the Board erred in not considering the scope of the 
Veteran's claim for service connection for PTSD as including 
any mental disability that may reasonably be encompassed by 
the claimant's description of the claim, reported symptoms, 
and the other information of record (in that case, a 
diagnosis of anxiety neurosis).  In light of Clemons, and 
based on the medical evidence of record, the Board has 
recharacterized the Veteran's claim as one for service 
connection for an acquired psychiatric disorder, to include 
PTSD. 


FINDINGS OF FACT

1.  The Veteran is not shown to have developed PTSD as a 
result of a stressor event verified by credible supporting 
evidence as having occurred in service.

2.  The Veteran has a diagnosis of major depression, which 
was not shown during service or for many years thereafter, 
and is not otherwise related to his period of military 
service. 


CONCLUSION OF LAW

The criteria for service connection for an acquired 
psychiatric disorder, to include PTSD, are not met.  38 
U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 
3.102, 3.159, 3.303 (2009). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's duties to notify and assist claimants in substantiating 
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a).  See also 73 Fed. Reg. 23,353-
23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 
3.159).  Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical evidence or lay evidence that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 
Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 
3.159(b)(1), proper notice 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.  Notice 
should be sent prior to the appealed rating decision or, if 
sent after the rating decision, before a readjudication of 
the appeal.  A Supplemental Statement of the Case, when 
issued following a notice letter, satisfies the due process 
and notification requirements for an adjudicative decision 
for these purposes.  See Mayfield v. Nicholson, 444 F.3d 1328 
(Fed. Cir. 2006). 

In this case, the notice fulfilling the requirements of 38 
C.F.R. § 3.159(b) was furnished to the Veteran in September 
2004, prior to the date of the issuance of the appealed 
November 2004 rating decision.

The Board further notes that, in March 2006, the Veteran was 
notified that a disability rating and an effective date for 
the award of benefits are assigned in cases where service 
connection is warranted.  See Dingess/Hartman v. Nicholson, 
19 Vet. App. 473 (2006).  After issuance of the March 2006 
letter, and opportunity for the Veteran to respond, the 
January 2010 supplemental statement of the case (SSOC) 
reflects readjudication of the claim.  Hence, the Veteran is 
not shown to be prejudiced by the timing of the latter 
notice.  See Mayfield, 20 Vet. App. at 543 (2006); see also 
Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the 
issuance of a fully compliant VCAA notification followed by 
readjudication of the claim, such as in an SOC or SSOC, is 
sufficient to cure a timing defect).

The record reflects that VA has made reasonable efforts to 
obtain relevant records adequately identified by the Veteran, 
including service personnel and treatment records and VA and 
private treatment records, as well as requests for relevant 
records from the U.S. Army and Joint Services Records 
Research Center (JSRRC).

VA has also fulfilled its duty to assist in obtaining the 
identified and available evidence needed to substantiate the 
claim adjudicated in this decision.  The Veteran was not 
provided with a VA examination and opinion to assess the 
current nature and etiology of any acquired psychiatric 
disorder, to include PTSD.  However, VA need not conduct an 
examination with respect to the claim on appeal, as 
information and evidence of record contains sufficient 
competent medical evidence to decide the claim.  See 38 
C.F.R. § 3.159(c)(4).  Under McLendon v. Nicholson, 20 Vet. 
App. 79 (2006), in disability compensation (service 
connection) claims, the VA must provide a VA medical 
examination when there is (1) competent evidence of a current 
disability or persistent or recurrent symptoms of a 
disability, and (2) evidence establishing that an event, 
injury, or disease occurred in service or establishing 
certain diseases manifesting during an applicable presumptive 
period for which the claimant qualifies, and (3) an 
indication that the disability or persistent or recurrent 
symptoms of a disability may be associated with the Veteran's 
service or with another service-connected disability, but (4) 
insufficient competent medical evidence on file for the VA to 
make a decision on the claim.  Simply stated, the standards 
of McLendon are not met in this case, as the available 
evidence does not indicate that PTSD may be the result of a 
verifiable event, injury, or disease occurring in service.  
Also, there is no indication that major depression may be 
associated with the Veteran's service.  Thus remand for a VA 
examination is not necessary. 

Overall, there is no evidence of any VA error in notifying or 
assisting the Veteran that reasonably affects the fairness of 
this adjudication. 

Service Connection Laws and Regulations Generally 

Service connection will be granted if the evidence 
demonstrates that a current disability resulted from an 
injury or disease incurred in or aggravated by active 
military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Establishing service connection generally requires (1) 
medical evidence of 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 disability.  Shedden v. Principi, 381 
F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. 
App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 
(Fed.Cir.1996) (table); see also Shedden v. Principi, 381 
F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. 
App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of 
establishing the second and third Shedden/Caluza element is 
through a demonstration of continuity of symptomatology.  
Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 
Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 
Vet. App. 296, 302 (1999).  Continuity of symptomatology may 
be established if a claimant can demonstrate (1) that a 
condition was "noted" during service; (2) evidence of post- 
service continuity of the same symptomatology; and (3) 
medical or, in certain circumstances, lay evidence of a nexus 
between the present disability and the post-service 
symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 
12 Vet. App. at 253 (lay evidence of in-service incurrence 
sufficient in some circumstances for purposes of establishing 
service connection); 38 C.F.R. § 3.303(b).

In relevant part, 38 U.S.C. § 1154(a) requires that the VA 
give "due consideration" to "all pertinent medical and lay 
evidence" in evaluating a claim to disability or death 
benefits.  Lay evidence can be competent and sufficient to 
establish a diagnosis of a condition when (1) a layperson is 
competent to identify the medical condition, (2) the 
layperson is reporting a contemporaneous medical diagnosis, 
or (3) lay testimony describing symptoms at the time supports 
a later diagnosis by a medical professional."  Jandreau v. 
Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) In fact, 
competent medical evidence is not necessarily required when 
the determinative issue involves either medical etiology or a 
medical diagnosis. Id. at 1376-77; see also Buchanan v. 
Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. 
Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).

If psychosis becomes manifest to a degree of 10 percent 
within one year of separation from active service, then it is 
presumed to have been incurred during active service, even 
though there is no evidence of arthritis during service. This 
presumption is rebuttable by affirmative evidence to the 
contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 
3.307, 3.309.

Service connection may 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.  Presumptive periods are not intended to 
limit service connection to diseases so diagnosed when the 
evidence warrants direct service connection.  The presumptive 
provisions of the statute and VA regulations implementing 
them are intended as liberalizations applicable when the 
evidence would not warrant service connection without their 
aid.  38 C.F.R. § 3.303(d).

A disorder may be service connected if the evidence of 
record, regardless of its date, shows that the Veteran had a 
chronic disorder in service or during an applicable 
presumptive period, and that the Veteran still has such a 
disorder.  38 C.F.R. § 3.303(b); Savage, supra., 10 Vet. App. 
488, 494-95 (1997).

Service connection may also be granted for a disease first 
diagnosed after discharge when all of the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d).

Entitlement to service connection for PTSD requires: (1) 
medical evidence diagnosing the condition in accordance with 
38 C.F.R. § 4.125(a); (2) a link, established by medical 
evidence, between current symptoms and an in-service 
stressor; and (3) credible supporting evidence that the 
claimed in-service stressor occurred.  38 C.F.R. § 3.304.

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 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.  
38 C.F.R. § 3.304(f); West v. Brown, 7 Vet. App. 70 (1994).  
If the veteran did not engage in combat with the enemy, or if 
the claimed stressors are not related to combat, the 
veteran's testimony alone is not sufficient to establish the 
occurrence of the claimed stressors, and those stressors must 
be corroborated by credible supporting evidence.  Cohen v. 
Brown, 10 Vet. App. 128 (1997).  Service department records 
must support, and not contradict, the claimant's testimony 
regarding non-combat stressors.  Doran v. Brown, 6 Vet. App. 
283 (1994). 

When there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of 
a matter, the VA shall give the benefit of the doubt to the 
claimant.  38 U.S.C.A. § 5107(b).

The Board has reviewed all the evidence in the Veteran's 
claims file. Although the Board has an obligation to provide 
adequate reasons and bases supporting this decision, there is 
no requirement that the evidence submitted by the Veteran or 
obtained on his behalf be discussed in detail.  Rather, the 
Board's analysis below will focus specifically on what 
evidence is needed to substantiate the claim and what the 
evidence in the claims file shows, or fails to show, with 
respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. 
App. 122, 128-30 (2000). 

Analysis

The Veteran contends that he has PTSD as a result of various 
combat-related, in-service stressors.  Service records 
indicate that his military occupational specialty (MOS) was 
that of 11B20 light weapons infantryman.  He was awarded the 
following medals and campaign ribbons for his service: 
National Defense Service Medal, Vietnam Campaign Medal w/60 
device and Vietnam Service Medal w/Bronze Service Star.  The 
Board notes that he was not awarded any medal or decoration 
that clearly indicates combat status and evidence of 
participation in a campaign does not, in itself, establish 
that a veteran engaged in combat because those terms 
ordinarily may encompass both combat and non-combat 
activities.  VAOPGCPREC 12-99 (Oct. 18, 1999), 65 Fed. Reg. 
6257 (2000).  Thus, the Board finds that combat status has 
not been clearly established by the objective evidence of 
record.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 
3.304(d), (f) (2009).  Therefore, credible supporting 
evidence that the claimed in- service stressors occurred is 
necessary.  38 C.F.R. § 3.304(f) (2009).

The Board notes that VA and private treatment records dated 
from 2004 to 2005, confirm diagnoses of and treatment for 
PTSD.  However, a diagnosis alone is insufficient to 
establish service connection for PTSD.  Since it is not 
otherwise shown by the record that the Veteran engaged in 
combat, there must be evidence that corroborates the 
existence of the claimed stressors.  See Cohen, 10 Vet. App. 
at 128; 38 C.F.R. § 3.304(f).  The Court has held that 
credible supporting evidence of the actual occurrence of an 
in-service stressor cannot consist solely of after-the-fact 
medical nexus evidence.  See Moreau v. Brown, 9 Vet. App. 
389, 396 (1996).  Accordingly, in order to grant service- 
connection for PTSD, the evidence must contain credible 
supporting evidence that the claimed in-service stressors 
occurred.  38 C.F.R. § 3.304(f).

Based upon the evidence of record, the Board finds the 
Veteran is not shown to have developed PTSD as a result of a 
stressor event verified by credible supporting evidence as 
having occurred in service. 

The Veteran has alleged four principal stressors in service 
that caused his current PTSD.  First, in Vietnam, while the 
Veteran was setting up his camp for the evening, he also had 
to set up his claymore mine.  He stated that he set it up 
about 25 feet from two other soldiers and pulled 75 feet of 
cord back to where his sleeping area was.  Suddenly there was 
an explosion, and the other soldiers started yelling that 
someone had set off their claymore.  He was then surrounded 
by the other men, accused of trying to kill his fellow 
soldiers, and threatened with physical harm.  The platoon 
leader was able to calm the situation by stating that the 
safety trigger on the Veteran's claymore was broken.  The 
Veteran stated he felt he had to "watch his back" until he 
came out of that patrol, as the other men would not speak nor 
have anything to do with him.

The second incident took place when the helicopter the 
Veteran was in was under heavy gunfire upon landing.  The 
Veteran and 8 or 9 other men were forced to jump from the 
helicopter into the area of heavy fire.  The helicopter took 
off before it was subject to more gunfire and the men were 
left alone in the area. It seemed as long as 25 minutes or so 
went by before they received any help.  A gunship arrived and 
started shooting in the Veteran's direction.  The Veteran was 
afraid he would be shot, but the gunship fired over him and 
into the jungle.  The Veteran stated that he was terrified 
and it shook him up to see that much gunfire coming so close 
to him.  He stated that he still sees it today.

The third incident was when the Veteran was in the jungle of 
Vietnam setting up camp.  The company decided that because of 
enemy activity in the area they would call in artillery to 
prep the area surrounding the location.  When they made the 
call, they gave a location too close to where the camp was.  
Each round that came in was getting closer and closer to the 
Veteran's tent.  The Veteran stated the gunfire came so 
close, that chunks of dirt and other debris began to hit the 
tent as the men ran for cover.  The platoon was yelling 
trying to stop the incoming.  Finally, the shooting stopped.

The fourth stressful time was when his platoon was on a 
search and destroy mission.  He went through the jungle and 
hills until he came to an open field where they spotted the 
dead body of a Vietcong soldier.  He stated that the solider 
must have been dead for a while because the smell was awful.  
It was the first time the Veteran had seen a dead body in 
combat in an open field.

The Veteran explained that all four of these events had an 
effect on him, and that he could not function as a soldier 
for a while.  He believes he had a nervous breakdown, because 
there were many times that he could not follow orders and was 
very confused.  He stated that it came to a point where they 
let him do as he wished.  While at one of the fire bases, he 
was told to see a psychiatrist.  He spoke to the doctor and 
answered questions, but was only told to "let go."  The 
Veteran stated he was continually depressed and stressed 
while in Vietnam. 

The RO attempted to verify the stressors identified by the 
Veteran and by obtaining the Veteran's service treatment and 
service personnel records.  As noted above, these records 
showed that the Veteran was an 11B20 light weapons 
infantryman.  And was awarded the National Defense Service 
Medal, Vietnam Campaign Medal w/60 device and Vietnam Service 
Medal w/Bronze Service Star.  However, the records contained 
no reference to the described events. 

In further attempts to verify the claimed stressor, the RO 
sent the Veteran an August 2009 letter.  In the August 2009 
letter, the RO informed the Veteran that his claimed stressor 
could not be verified and that, in order to corroborate the 
stressor, he needed to provide more specific details.  There 
is no indication that the Veteran responded to the letter.

In a December 2009 Memorandum, a Military Records Specialist 
indicated that they researched the October 1971 Daily Staff 
Journals (DJ's) submitted by the 1st Battalion, 37th Infantry.  
The October 29, 1971 DJ documented that a solider sustained 
injuries due to a blasting cap but the DJ did not provide the 
company assignment of that particular soldier.  They also did 
not maintain 1971 Morning Reports submitted by the 1st 
Battalion, 37th Infantry.  They indicated that a Morning 
Report search may be conducted in order to verify the unit 
assignment of the particular soldier at the time of his 
injuries.  JSSRC was also unable to provide a response to the 
second stressor reported by the Veteran.  Regarding the other 
reported stressors, the Military Records Specialist noted 
that JSRRC researched the March 1972 DJ's submitted by the 
1st Battalion, 7th Calvary which documented that at various 
times during the reporting period that various elements of 
Company A, 1st Battalion, 7th Calvary requested artillery 
support.  However, the DJ's did not specifically document 
what the Veteran described.  The Memorandum concluded that 
the Veteran's stressor statements failed to adequately 
describe the claimed stressors and that unless further 
detailed information could be obtained, the Veteran's 
stressors were inherently impossible to verify.

The Board acknowledges the statements received from the 
Veteran regarding his current symptoms and his experiences in 
service.  Unfortunately, however, he has been unable to 
adequately describe the claimed stressors and as a result, 
the JSSRC indicated that the Veteran's stressors were 
currently inherently impossible to verify.  The Board notes 
that while the VA is obligated to assist a claimant in the 
development of a claim, there is no duty on the VA to prove 
the claim.  See Wood v. Derwinski, 1 Vet. App. 190, 193 
(1991).  Again, the RO sent the Veteran an August 2009 letter 
in a further attempt to verify the claimed stressor, but 
there is no indication that the Veteran responded to the 
letter.  Without sufficient evidence to corroborate the 
stressor described by the Veteran, the Board has no basis 
upon which to grant service connection for PTSD. 

While acknowledging the Veteran's belief that PTSD is due to 
the various stressor events that purportedly occurred during 
his military service, it is well established that as a 
layperson, the Veteran is not considered capable of opining 
as to the nature or etiology of his disability.  Espiritu v. 
Derwinski, 2 Vet. App. 492 (1992).  In short, the only 
evidence of the occurrence of the Veteran's claimed stressors 
are his own statements.  As the record contains no indication 
of combat service, and the Veteran's alleged stressors are 
not corroborated by service records or other credible 
supporting evidence, the Board finds that the evidence of 
record preponderates against the Veteran's service connection 
claim for PTSD.

The Board's analysis, however, does not end here.  As the 
Court found in Clemons, the Board must consider the Veteran's 
claim in light of the reported symptoms and medical evidence.  
Clemons, 23 Vet. App. at 5.  Here, the evidence of record 
included treatment notes from the VA Medical Center (VAMC) in 
Kansas City, Missouri dated from July 2004 to April 2005 that 
reflect diagnoses of mood disorder NOS - Major depression vs. 
Dysthymia with late onset PTSD, chronic.  The Board must 
consider entitlement to service connection for these mental 
health disabilities as well as for PTSD. 

The Veteran's March 1971 enlistment examination report is 
silent for any psychiatric disorders.  On his April 1973 
separation examination report, the Veteran noted nervous 
trouble.  The physician remarked that the Veteran had noise- 
related nervousness.  However, the report of his April 1973 
separation examination physical indicates that his 
psychiatric evaluation was normal. 

The first documented medical evidence of major depression is 
in the July 2004 VA treatment record-over 31 years after 
military service.  The Board points out that the passage of 
many years between discharge from active service and the 
medical documentation of a claimed disability is a factor 
that tends to weigh against a claim for service connection.  
See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); 
Shaw v. Principi, 3 Vet. App. 365 (1992).  In sum, there is 
no medical evidence or opinion even suggesting a relationship 
between major depression (or any other psychiatric disorder) 
and military service, and neither the Veteran nor his 
representative has presented or identified any such existing 
medical evidence or opinion.  Again, an additional VA 
examination is not required as the evidence already of record 
fails to indicate that that any present psychiatric condition 
is related to the Veteran's tour of active duty.  38 C.F.R. § 
3.159.  Furthermore, there is no evidence that psychosis was 
manifested in the first post service year (so as to trigger 
application of presumptive provisions in 38 U.S.C.A. § 1112; 
38 C.F.R. §§ 3.307, 3.309 for such chronic disease).  

For the foregoing reasons, the claim for service connection 
for an acquired psychiatric disorder, including PTSD must be 
denied.  The Board has considered the applicability of the 
benefit-of-the-doubt doctrine.  However, as the preponderance 
of the evidence is against the claim, that doctrine is not 
applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; 
Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). 


ORDER

Service connection for an acquired psychiatric disorder, 
including PTSD, is denied. 



____________________________________________
WAYNE M. BRAEUER 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs