Citation Nr: 1040101 Decision Date: 10/26/10 Archive Date: 11/01/10 DOCKET NO. 08-22 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder ("PTSD"). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from April 1962 to April 1965, and from August 1965 to October 1968. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Muskogee, Oklahoma, which denied the Veteran's claim of entitlement to service connection for PTSD. In May 2010, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of this proceeding has been associated with the claims folder. The record reflects that the Veteran has submitted additional evidence to the Board in conjunction with this case, accompanied by a waiver of initial review of the evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304 (2010). FINDINGS OF FACT 1. The Veteran did not serve in combat, and his alleged in- service stressors are not consistent with the places, types and circumstances of his military service. 2. A valid diagnosis of PTSD based upon a verified stressor is not of record, nor is any other acquired psychiatric disorder shown to be the result of military service. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). a.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); 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 claimant 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 claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant 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, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, VA essentially satisfied the notification requirements of the VCAA by means of a letter dated October 2006. The RO informed the appellant of the types of evidence needed in order to substantiate his claim of entitlement to service connection and of the division of responsibility between the appellant and VA for obtaining the required evidence. The RO also requested that the appellant provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). In addition, the letter satisfied the requirements of Dingess and informed the Veteran of how VA determines the disability rating and effective date elements of a claim. b.) Duty to Assist The Board is satisfied that the duty to assist has been satisfied. The claims folder contains the Veteran's service treatment and personnel records, as well as his post-service VA Medical Center ("VAMC") treatment records. The claims file also contains the Veteran's statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. The Board notes that in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board has determined that VA had no duty to provide a VA medical examination or opinion with respect to the Veteran's claim. In this regard, the Board observes that, although the record reflects that the Veteran was diagnosed with PTSD by a third-year medical student at the VAMC, as will be discussed in greater detail below, the claims folder contains no evidence that he served in combat during active military service, and his claimed stressors are not consistent with the places, types and circumstances of his active duty service. Thus, in the absence of such evidence, there is no reasonable possibility that a VA examination would result in findings favorable to the Veteran; service connection therefore cannot be established for the claimed disability. Accordingly, the Board finds that an medical opinion is not necessary. See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). In addition, the Board concludes that all reasonable efforts to develop evidence for the record have been made. In October 2006, the Veteran's reported stressors were provided to the U.S. Army and Joint Services Records Research Center ("JSRRC") coordinator. In March 2007, the coordinator responded that the Veteran's claimed stressors could not be verified. Subsequently, the RO sent a letter to the Veteran requesting more specific information to allow for an attempt to verify his claims; the Veteran, however, failed to respond. In May 2007, the JSRRC coordinator issued a "Formal Finding" memorandum, in which it determined that the information required to allow the JSRCC to corroborate the stressful events described by the Veteran was insufficient. In April 2008, after receiving the Veteran's complete service personnel records, the JSRCC coordinator concluded that his personnel records failed to show that he was assigned or attached to the places in Vietnam that he claimed in his stressor statements, and that, more importantly, he was not in Vietnam at the time he initially claimed to have been. The JSRRC coordinator specifically noted that, while the Veteran claimed to have served as part of the I Corps Tactical Zone ("CTZ") in the northernmost part of South Vietnam, his service personnel records showed that he actually served with the III CTZ, located in the southern part of South Vietnam, near Saigon, hundreds of miles away from the I CTZ. The coordinator also observed that the Veteran did not arrive in Vietnam until January 1968, thus his claims of having provided support to the Marines at Khe Sanh in October 1967 in the I CTZ were unfounded. In July 2009, the JSRCC coordinator again issued a "Formal Finding" memorandum, in which it found that the additional information provided by the Veteran was still insufficient to allow for the JSRCC to corroborate the stressful events he reported. He further noted that all procedures to obtain this information had been properly followed, all efforts to obtain such information had been exhausted, and concluded that any further attempts would be futile. The Veteran subsequently submitted an additional stressor statement, in which he claimed that he had erroneously provided incorrect information regarding his assigned locations and dates, and now alleged that the claimed stressors actually occurred in 1968 at different locations, including those that were listed in his personnel records. Following a September 2009 letter from the RO to the Veteran requesting more specific details concerning his claimed stressors, the Veteran failed to respond. In light of the requests for information sent by the RO to the Veteran, the personnel records showing that he did not arrive in Vietnam until January 1968, that he did not serve with the Marines in the I CTZ, and the lack of sufficient detail regarding his stressors that would allow for corroboration of the claimed events, the Board finds no basis for further 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). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. 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 claims. 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). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay 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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Service connection for PTSD specifically requires (1) medical evidence establishing a diagnosis of the disability, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) 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). See also Cohen v. Brown, 10 Vet. App. 128 (1997). 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); see also, 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2010). Otherwise, the law requires verification of a claimed stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). In his first stressor statement, the Veteran claimed that he served in Vietnam from September or October 1967 to October 1968 as a truck driver. He said that he began by serving with the 537th Transportation Company in Long Binh (located near Saigon in the southern part of South Vietnam, in the III CTZ), then was sent to Dong Ha (in the I CTZ, the northernmost part of South Vietnam, near Khe Sanh,) for four months, and then drove back to Long Binh. He said that his stressor occurred in October 1967, when he was assigned to support the Marines serving in Khe Sanh. He specifically noted that the Marines had been pinned down at that location by the enemy for 77 days. He said that, while driving just outside of Khe Sahn to deliver fuel and supplies, the motor pool came under heavy rocket and mortar attack, with rockets exploding all around him. He said that he was forced to leave his truck and run for cover, which put him in fear for his life. As discussed above, the RO sent the Veteran's statements to the JSRCC coordinator, who noted that his service personnel records failed to support his claims of having been assigned or attached to Dong Ha, of having supported the Marines at Khe Sanh in the I CTZ, or having been in country in 1967. Rather, it was noted that these reports showed that he did not arrive in Vietnam until January 1968, where he was assigned to the 538th and 47th Transportation Companies in III CTZ in Long Binh, the III CTZ headquarters. Moreover, it was noted that his DD-Form 214 showed that he did not receive any decorations, medals or citations that would verify his participation in combat. In February 2009, after having been notified that his claimed stressor statement did not correspond with his service personnel reports, the Veteran submitted a revised stressor statement, in which he claimed that several soldiers got killed during the rocket and mortar attacks and that he had seen the bodies of several soldiers that he knew. After it was determined that this information was still insufficient to allow for verification of his claimed stressors, in August 2009, the Veteran submitted third stressor statement, in which he claimed to have served in the places that were listed in his service personnel records. He also said that he had previously provided incorrect information, and admitted that he did not actually arrive in Vietnam until 1968. As such, although the Veteran claimed to have served in locations that exposed him to various combat-related stressors, the RO denied his claim because, under the former provisions of 38 C.F.R. § 304(f), there was no proof of combat service, and the Veteran was therefore required to provide credible supporting evidence that the claimed in-service stressor(s) had occurred. The provisions of 38 C.F.R. § 3.304(f) were recently amended, however, effective July 13, 2010, during the pendency of this appeal. See 75 Fed. Reg. 39843-52 (July 13, 2010). The primary effect of the amendment, which relaxes the evidentiary standard for establishing in-service stressors in PTSD claims, is the elimination of the requirement for corroborating evidence of the claimed in-service stressor(s) if it is related to the veteran's "fear of hostile military or terrorist activity." In place of corroborating the reported stressor(s), VA will now rely on a veteran's lay testimony alone to establish the occurrence of a stressor related to hostile military or terrorist activity, provided that (1) the claimed stressor is consistent with the places, types and circumstances of service (in the absence of clear and convincing evidence to the contrary), (2) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and (3) the veteran's PTSD symptoms have been medically-related to the in-service stressor by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted. For the purpose of this regulation, "fear of hostile military of terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device (IED); vehicle- imbedded explosive device; incoming artillery, rocket or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f). A review of the claims folder reveals that the Veteran was initially evaluated for PTSD in April 2005 at the VAMC. During an evaluation by a VA clinical psychologist, the Veteran said that he was continuing to have problems with substance abuse; however, he made no mention whatsoever of any stressors related to his Vietnam service. The VA clinical psychologist diagnosed him on Axis I with (1) a mood disorder: cocaine-induced depressive disorder, and (2) addictive disorder: cocaine abuse. However, the psychologist specifically ruled out a diagnosis of PTSD. Four months later, in August 2005, the Veteran was examined at the VAMC pursuant to his participation in the VA PTSD recovery program. The examining clinician was a third-year medical student. At that time, the Veteran said that while driving convoy vehicles in Vietnam, he was afraid of getting ambushed or bombed by the enemy. However, he also said that he continued to be angry with his ex-wife due to an incident that had occurred in the early 1970's, when she stabbed him with a knife shortly after his return from Vietnam. He told the examiner that he experienced anger whenever he thought about how he could have been killed by the bombings in Vietnam or by his wife. Based on these statements, the Veteran was diagnosed on Axis I with PTSD and polysubstance abuse in remission. However, as noted above, the examiner was neither a VA psychiatrist or psychologist, nor a psychiatrist or psychologist who had a contract for services with VA. The Board also notes that, although the examination report was co-signed by a VA medical doctor, there is no indication that she herself was a psychiatrist. Moreover, based on the fact that the Veteran claimed to have PTSD symptomatology based on an in- service stressor and a non-service-related personal assault by his former wife, it is not clear whether the examiner specifically related his symptoms only to his claimed in-service stressors. Finally, the Board also notes that a review of the examination report reveals that the medical student's PTSD evaluation and diagnosis does not appear to have met the criteria of the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) ("DSM-IV"). According to the DSM-IV, diagnostic criteria for PTSD include a history of exposure to a traumatic event meeting two criteria, and symptoms from each of the following three symptom clusters: intrusive recollections, avoidant/numbing symptoms, and hyperarousal symptoms. A fifth criterion concerns duration of symptoms, and a sixth assesses functioning. Based on the August 2005 examination report, it does not appear that the examiner considered anything more than the Veteran's claim of having been exposed to a traumatic event (either the service or non-service stressor), without any mention or discussion of whether he experienced avoidant/numbing symptoms, intrusive recollections or hyperarousal symptoms. Accordingly, the Board concludes that a valid diagnosis of PTSD based upon a verified stressor or stressors is not of record. III. Conclusion It is the responsibility of the Board to weigh the evidence, including the medical evidence, to determine where to give credit and where to withhold the same, and in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. Based on a review of the complete evidence of record, the Board concludes that a preponderance of the probative evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In this regard, the Board finds the most probative evidence to be the April 2005 examination report from the VA psychologist, who opined that the Veteran did not have PTSD, but rather, had a mood and an addictive disorder. Interesting, although the Veteran now claims that he had struggled with PTSD symptomatology ever since service, when he had an opportunity to discuss his in-service stressor with a psychologist, he did not do so, and instead, spoke only about his problems with substance abuse. No acquired psychiatric disorder was related by the VA examiner to the Veteran's military service. In addition, the Board concludes that the Veteran's assertions regarding his claimed Vietnam stressors are simply not credible. As noted above, when the Veteran initially applied for service connection for PTSD, he stated that he had arrived in Vietnam in September or October 1967 and had been present with the Marines in Khe Sanh in the I CTZ. He also provided a very vague statement of having been afraid due to coming under attack by enemy fire. However, when told that these events could not be substantiated and asked to provide more specific information regarding the names of individuals with which he served, as well as the approximate dates he came under fire, he was unable to do so. Thereafter, when he was informed that his claimed in-country dates and locations did not match the information in his service personnel records, the Veteran changed his story and said that he was mistaken about having been in Vietnam in October 1967, and did not arrive until 1968. He also reported that, instead of being in the I CTX, he was actually in the III CTZ , as listed in his personnel reports. Based on his inconsistent statements regarding his dates and locations in Vietnam, the Board also concludes that his claimed PTSD symptomatology is not credible. In this respect, the Board has taken into consideration the new regulations of 38 C.F.R. § 3.304(f), which state that, provided the claimed stressor is consistent with the places, types and circumstances of his service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor(s). Id. However, because the question of whether a veteran was exposed to a stressor in service is a factual one, VA adjudicators are not bound to accept medical opinions based upon uncorroborated accounts of stressors. Wood v. Derwinski, 1 Vet. App. 190, 192 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). In this case, even assuming that the VA medical student's examination satisfied the criteria of the DSM-IV for a diagnosis of PTSD, based on the findings by the JSRCC coordinator and the RO that the Veteran's claims concerning his locations and duties in Vietnam did not correspond to the verifiable facts as shown in his service personnel records, as well as the fact that, when informed of these findings, the Veteran abruptly changed his stressor statement to more closely match his service personnel records, the fact remains that the Board deems the Veteran's contentions regarding his experiences in service to be untruthful. As such, the Board finds that his claimed stressors are not consistent with the places, types and circumstances of his service, and therefore, his lay statements alone are insufficient to establish the occurrence of his claimed in- service stressors. Additionally, the Board notes that the threshold requirement for service connection to be granted is competent medical evidence of the current existence of a claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Thus, without a current diagnosis of PTSD, in addition to the fact that there is no credible supporting evidence that the claimed in-service stressors actually occurred because of the inconsistent statements made by the Veteran, here may be no service connection for the claimed disorder. No other acquired psychiatric disorder is shown to have been incurred in or aggravated by military service. In summary, and for the reasons stated above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. As there is not an approximate balance of evidence, the "benefit of the doubt" rule is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs