Citation Nr: 1021703 Decision Date: 06/11/10 Archive Date: 06/21/10 DOCKET NO. 07-38 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Jacob Bernhardt, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which in pertinent part, denied the benefits sought on appeal. Jurisdiction has since been transferred to the RO in Boise, Idaho. In August 2009, the Veteran testified before the undersigned during a hearing held at the RO. A copy of the transcript has been associated with the claim folder. At that time, the Veteran submitted evidence directly to the Board accompanied by a written waiver of consideration of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2009). FINDINGS OF FACT 1. The weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran has a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV). 2. There is, however, no verified stressor event to support a claim of service connection for PTSD. 3. There is no competent medical evidence that links any other psychiatric disorder to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.304(f) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the Veteran is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the Veteran prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119- 120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, prior to the May 2007 RO decision in the matter, VA sent a letter to the Veteran in August 2005 that addressed some notice elements concerning his claim. The letter informed the Veteran of what evidence is required to substantiate the claim, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. In a March 2006 notice letter, VA has also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the VCAA duty to notify was fully satisfied as to the Veteran's claim. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has made reasonable efforts to obtain any available pertinent records as well as all relevant records adequately identified by the Veteran. VA provided the Veteran with medical examinations in January 2006, May 2007 and December 2008, in which the examiner identified the nature and etiology of the Veteran's psychiatric disability. The report of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate psychiatric examinations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that these examinations are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his attorney have not contended otherwise. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by 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 of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Generally, to prevail on the issue of service connection there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Veteran claims service connection for PTSD. The Veteran alleges that while he was stationed at the United States Naval Base at Subic Bay from May 1971 to December 1971 he was exposed to several stressful inservice events. He has testified that while he was stationed on guard duty he was exposed to hostile gunfire from intruders attempting to raid the ammunition bunkers. The Veteran stated that on one occasion he was ordered to fire upon unarmed villagers who were stealing military property (fencing materials), and although he fired into the air, other soldiers killed all the villagers. He also testified that while stationed at Subic Bay, his unit was ordered and transported to assist in military activities to stop a bank robbery. The Veteran reported he observed the death of a superior from gunfire during the bank robbery. In order to prevail on the issue of service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition pursuant to 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) credible supporting evidence that the claimed in-service stressors actually occurred; and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f). On the question of diagnosis, the Board finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran has a diagnosis of PTSD. Here, there are two medical examination reports that show a diagnosis for PTSD, and there are two medical examination reports that rule out a diagnosis of PTSD. None of the medical evidence is more probative then all the others. A January 2006 VA examination report shows a diagnosis for PTSD. In the examination report, the examiner noted that the Veteran met the DSM-VI criteria for a diagnosis of PTSD with a history of substance abuse as secondary to his traumatic military experiences. In May 2007, the Veteran was afforded another VA psychiatric evaluation to evaluate for PTSD. The VA examiner reported that the Veteran had a medical history of substance abuse and hepatitis C, and the examiner noted that the Veteran reported he had 20 years of marriage and was employed for 30 years until he retired and became homeless by "choice." The examiner noted the Veteran's reported in-service stressor events of hostile gunfire and firing on unarmed villagers. The VA examiner recorded that the Veteran reported symptoms of depression, irritability, and suicidal thoughts. The VA examiner diagnosed the Veteran with depression secondary to medical conditions (hepatitis C). The VA examiner opined that the Veteran did not meet the criteria for PTSD because the evidence did not show a stressful event. The record also shows the Veteran underwent a psychiatric evaluation by the Social Security Administration (SSA) for benefits in January 2008. The SSA examination report shows the Veteran was diagnosed with both depression and PTSD pursuant to DSM-IV criteria. In the examination report, the SSA examiner noted the Veteran's report of stressful events, which included exposure to hostile fire and his participation in the shooting and possible killing of unarmed villagers while on guard duty in service. The Veteran underwent another VA psychiatric examination in December 2008. The examiner noted that the Veteran had some symptoms of anxiety which resembled PTSD symptoms, but the examiner opined that the Veteran had not been exposed any traumatic event that would meet the criteria for a stressor. The examiner diagnosed with the Veteran with history of polysubstance abuse and avoidant personality disorder. In a December 2008 addendum to clarify the dynamics of the Veteran's symptomatology and its possible relation to PTSD, the examiner noted the Veteran "endorsed many symptoms that are routinely attributed to PTSD", but those symptoms are also attributed to a general anxiety disorder. The examiner opined that the Veteran's symptoms of anxiety were a part of his personality disorder, and confirmed his original finding ruling out a diagnosis of PTSD. The May 2007 and December 2008 VA examiners found that the Veteran's symptoms did not meet the DSM-IV criteria for PTSD; whereas, both the January 2006 VA examiner and the SSA examiner diagnosed the Veteran with PTSD under the DSM-IV criteria. There is no indication in the record that shows the May 2007 and December 2008 VA examiners' opinions are more probative than those opinions provided by the January 2006 VA examiner and the SSA examiner. Although the SSA examiner did not have access to the Veteran's folder, that evaluations can be accurately based on the Veteran's reports of his experiences in Vietnam. See Coburn v. Nicholson, 19 Vet. App. 427 (2006) (a medical opinion cannot be disregarded solely on the rationale that the medical opinion is based on a history provided by the veteran). Additionally, it is noted that both the May 2007 and December 2008 VA examiners observed the Veteran had PTSD-like symptoms and a review of the Veteran's VA treatment records from show that the Veteran has "symptoms of PTSD" and has been received treatment at VA Residential PTSD Program. See VA treatment records from VA Medical Center in Salt Lake dated March 2007 and from VA Medical Center in Sheridan dated May 2007. Resolving reasonable doubt in the Veteran's favor on the question of diagnosis of PTSD, the Board finds that the Veteran has a diagnosis of PTSD. The Board now turns to whether the record contains a verified stressor event to support a claim of service connection for PTSD. As noted above, the Veteran provided the following alleged inservice stressor events: (1) exposure to hostile gunfire while on guard duty at ammunition bunkers, (2) military gunfire upon unarmed villagers, and (3) death of a superior during a bank robbery. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). Participation in combat is determined on a case-by-case basis, and it requires that a veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99; Morgan v. Principi, 17 Vet. App. 149 (2003). See also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, if such testimony is found to be credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Here, the record does not reflect that the Veteran received any personal combat-related awards during service, and there is no other indication in his military records that he personally participated in combat. Where VA determines that a veteran did not engage in combat with the enemy and was not a POW, or that the claimed stressor is not related to combat or POW experiences, the veteran's lay statements, by themselves, will not be enough to establish the occurrence of the claimed stressor. In such cases, the record must contain service records or other credible evidence that corroborate the claimed stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) and (f); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). Such corroborating evidence cannot consist solely of after-the-fact medical evidence containing an opinion as to a causal relationship between PTSD and service. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). The Veteran's service personnel records shows he was stationed at the Marine Barracks at United States Naval Base in Subic Bay, Philippines from May 1971 to October 1971 as a guard, and from October 1971 to December 1971 as a clerk. A June 1971 newspaper article shows that a group of armed Filipinos held up a bank inside Sangley Point U.S. Naval Base. It was reported that fifteen Marine Guards responded to the scene. The armed robbers shot at the Marine Guards, and during the gunfire exchange, a lieutenant officer was killed. The record shows that the Marine Barracks, Subic Bay, received a Meritorious Unit Commendation (MUC) from the Secretary of the Navy. This was awarded to the unit for performing its mission under "extremely adverse" conditions, which included the manning of guard posts, the capture of 269 intruders, and the recovery of military property from July 1, 1971 to September 1, 1971. The record also contains an undated and unsigned letter from a sergeant in the Marines who stated that the sergeant was assigned to the same unit as the Veteran and he participated in some operations with the Veteran. The Sergeant stated that members of the unit came under fire while stationed in Subic Bay, were involved in jungle patrols and captured insurgents. He also stated that it was stressful and intense. Attached to the Sergeant's letter were four other unsigned correspondences from Marines who stated they also served at the Marine Barracks in Subic Bay from 1970 to 1971. One of these correspondences was a 2005 email from a Marine who stated he was a Platoon Commander at the Marine Barracks in Subic Bay a platoon commander at Marine Barracks Subic Bay from 1971 to 1972. He stated that during his command, guard post stations were established along the trails around the Marine Barracks. He reported that during some guard patrols, there were reported shoot outs, but there were no confirmed casualties on either side of the exchange. The platoon commander also reported that he remembered conversations with some local villagers, who reported that some locals were killed during a few of the gunfire exchanges. As noted above, since the Veteran's service records did not indicate that he personally received medals or citations consistent with combat engagement, there must be evidence that corroborates the Veteran's assertions regarding his stressor event. Monreau, 9 Vet. App. at 395. Here, the weight of the evidence does not support the Veteran's assertions. First, the Board notes that the MUC is not a service decoration that VA recognizes as conclusive evidence of participation in combat. See Manual of Military Decorations and Awards, A-6 (Department of Defense Manual 1348.33-M, September 1996). In addition, although the narrative associated with the MUC reflects meritorious implications for the unit's involvement at Subic Bay during that period, there is no indication in the record that the Veteran was personally involved in any of the activities described in the MUC. The Board is of course aware of the case of Pentecost v. Principi, 16 Vet. App. 124 (2002) where the United States Court of Appeals for Veterans Claims (Court) held that a veteran's unit records, which provided independent descriptions of rocket attacks that were experienced by his unit in Vietnam, when viewed in the light most favorable to the Veteran, objectively corroborated his claim of having experienced rocket attacks during service. Here, however, the narrative attached to the MUC does not confirm the Veteran's allegations of gunfire exchange or that the unit was required to fire on unarmed villagers. Indeed, the narrative only suggests that the unit was involved in "extremely adverse" conditions; it does not state that the unit was involved in combat-like situations. The Board accordingly finds that the MUC does not corroborate any of the Veteran's alleged in-service stressors. Similarly, the various correspondences from the other Marines do not support the Veteran's alleged inservice stressor events. The Board is obligated to analyze the credibility of all evidence and account for the evidence that it finds persuasive or unpersuasive. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Even though the correspondences appear to support the Veteran's assertions regarding gunfire exchanges during guard patrol and the stress associated with performing such duty, the Board doubts the veracity of these correspondences as they pertain to the Veteran. Only the letter from the Marine sergeant specifically addresses the Veteran as a member of his unit, and the Board finds it particularly significant that this letter is unsigned. As for the other four correspondences, they do not mention the Veteran at all and do not describe the specific circumstances alleged by the Veteran. Finally, several of the statements contain language with a striking similarity to that contained in the narrative associated with the MUC, i.e. participating in 132 jungle patrols and responding 193 times as a reaction unit. That two separate individuals could remember the exact number of jungle patrols and reaction unit missions they participated in during service four decades ago is highly doubtful. In sum, the Board finds the correspondences submitted from other Marines lack credibility and cannot serve to verify the alleged stressors. Additionally, the June 1971 newspaper article also does not confirm the Veteran's alleged in-service stressor. Although the article shows that a lieutenant officer was killed during a bank robbery as the Veteran described, the article does not specifically mention that the Veteran was one of the fifteen Marines involved. Moreover, the bank robbery took place at Sangley Point U.S. Naval Base, whereas the Veteran was stationed the Marine Barracks in Subic Bay. Lastly, the medical evidence that shows medical professionals have made diagnostic findings that the Veteran's PTSD was due to combat-related events cannot be used to corroborate the Veteran's alleged inservice stressor events. It is now well established that information from a veteran which is merely transcribed by a medical professional still amounts only to a statement from the veteran. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993)(generally observing that an opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described). In other words, just because a physician or other health care professional has accepted the Veteran's description of his active duty experience as credible and diagnosed PTSD does not mean the Board is required to grant service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In sum, the Veteran has presented no credible evidence corroborating his alleged in-service stressors. Accordingly, service connection for claimed PTSD cannot be granted. Further, while the other various psychiatric diagnoses (depression, general anxiety, and personality disorder) are noted in the post-service treatment records, the preponderance of the medical evidence of record is against a finding that any diagnosed psychiatric disorder is related to service. A review of the Veteran's service treatment records only shows that the Veteran required treatment at the Naval Drug Rehabilitation Center for symptoms of polysubstance abuse, and none of the other service treatment records reflects any psychiatric or emotional problems, complaints or treatments. On the report of his February 1972 examination prior to separation, the Veteran's psychiatric status was marked as normal. Additionally, none of the post- service treatment records contains a statement that etiologically links any of the other psychiatric disorders to the Veteran's service. The May 2007 VA examiner found that the Veteran's depression secondary to medical conditions. No medical statement links the Veteran's personality disorder to his service. In sum, although the weight of the medical evidence is at least in relative equipoise on the question of whether the Veteran has a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), there is no verified stressor event to support a claim of service connection for PTSD. Further, the record does not contain any competent medical evidence that links any other psychiatric disorder to service. Consequently, the benefit-of-the-doubt rule does not apply, and the Veteran's claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ S. BUSH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs