Citation Nr: 1102467 Decision Date: 01/21/11 Archive Date: 01/26/11 DOCKET NO. 08-23 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for posttraumatic stress disorder (PTSD), previously claimed as entitlement to service connection for bipolar disorder and substance abuse, and if so whether the reopened claim may be granted. 2. Entitlement to service connection for pes planus/flat feet. 3. Entitlement to service connection for a back disorder and scoliosis, to include as secondary to pes planus/flat feet. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and J.S. ATTORNEY FOR THE BOARD Scott Shoreman, Associate Counsel INTRODUCTION The Veteran had active service from June 1971 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in October 2010 at a Travel Board hearing at the RO; a transcript is of record. The issue of service connection for PTSD, previously claimed as entitlement to service connection for bipolar disorder and substance abuse, on the merits, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. FINDINGS OF FACT 1. In an April 2005 decision, the RO denied service connection for bipolar disorder and substance abuse. The Veteran did not appeal that rating decision, and it became final. 2. The evidence added to the record since the April 2005 RO decision bears directly and substantially upon the issue of service connection PTSD, previously claimed as entitlement to service connection for bipolar disorder and substance abuse. In addition, it raises a reasonable possibility of substantiating the claim, and is, by itself or in conjunction with evidence previously assembled, so significant that it must be considered in order to fairly decide the merits of this issue, warranting reopening of the previously denied claim 3. Prior to the promulgation of a decision in the present appeal, in an October 2010 written statement, the Veteran withdrew his appeal as to the denial of service connection for pes planus/flat feet. 4. Prior to the promulgation of a decision in the present appeal, in an October 2010 written statement, the Veteran withdrew his appeal as to the denial of service connection for a back disorder and scoliosis, to include as secondary to pes planus/flat feet. CONCLUSIONS OF LAW 1. Evidence submitted since the April 2005 decision, wherein the RO denied service connection for bipolar disorder and substance abuse, is new and material; thus, the claim may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.156(a), 20.1103 (2010). 2. Because the Veteran has withdrawn his appeal relating to the issue of service connection for pes planus/flat feet, the Board does not have jurisdiction to consider that claim. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010). 3. Because the Veteran has withdrawn his appeal relating to the issue of service connection for a back disorder and scoliosis, to include as secondary to pes planus/flat feet, the Board does not have jurisdiction to consider that claim. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.101, 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, and, as discussed below, the Board has found none. In August 2006 and October 2009 VA sent the Veteran letters informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letters informed the Veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO. The Board finds that the content of the letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the January 2007 rating decision, June 2008 SOC, August 2009 SSOC, and June 2010 SSOC explained the basis for the RO's action, and the SOC and SSOCs provided him with additional periods to submit more evidence. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. In addition to the foregoing harmless-error analysis, we note that the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. This requirement was fulfilled in the August 2006 and October 2009 letters which VA sent to the Veteran. The Board also notes that in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. Such notice was provided in the August 2006 letter to the Veteran. The regulation at 38 C.F.R. § 3.304(f) provides that the Board will not deny a PTSD 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. Such notice was provided in the August 2006 letter to the Veteran. Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). 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); 38 C.F.R. § 3.102. 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. II. Relevant Evidence, Factual Background, and Analysis A. New and Material Evidence for Service Connection for PTSD Under 38 U.S.C.A. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Kightly v. Brown, 6 Vet. App. 200 (1994). New and material evidence is defined as evidence not previously submitted to agency decision makers which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented) will be evaluated, in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the U.S. Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). Before the Board may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. The Board does not have jurisdiction to consider a claim which has been previously adjudicated unless new and material evidence is present, and before the Board may reopen such a claim, it must so find. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g Barnett v. Brown, 8 Vet. App. 1 (1995); see Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38 U.S.C.A. §§ 5108, 7104(b). If the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010). Service connection may be granted for a disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within a presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The U.S. Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must (1) be medical evidence of a current disability; (2) 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. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Alternatively, service connection based on 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 symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96; see Hickson, supra, at 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). As provided by 38 U.S.C.A. § 1154(a), VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit has stated that competent medical evidence is not required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Instead, under section 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In order for service connection to be awarded for PTSD, three elements must be present: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). With respect to the second element, if the evidence shows that the Veteran did not serve in combat with enemy forces during service, or if there is a determination that the Veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 289 (1994). The Veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In addition, a recently-issued regulatory amendment, to be codified at 38 C.F.R. § 3.304(f)(3), provides as follows as to the acceptance of alleged stressors: If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and 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 posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or 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; 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. 75 Fed. Reg. 39,843-852 (July 13, 2010). The amendment to the regulation is effective, in pertinent part, for all claims pending at the Board on July 13, 2010. The above cited regulation, 38 C.F.R. § 4.125(a), refers to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 4th ed. 1994, (DSM-IV), as the source for criteria for the diagnosis of claimed psychiatric disorders. DSM-IV provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror. Cases involving allegations of non-combat personal assault fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the veteran complains. Therefore, evidence from sources other than the veteran's service records may be used to corroborate an account of a stressor incident. See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999). 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. 38 C.F.R. § 3.304(f)(3). The Court of Appeals for Veterans Claims has pointed out that "VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996), (citing VA Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c (8)- (9)). The Court has also held that these provisions of M21-1, which provide special evidentiary procedures for PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations. See YR v. West, 11 Vet. App. 393 (1998); Cohen, supra. The Board notes that the aforementioned provisions of M21-1 have been rescinded and reissued as amended in a manual rewrite (MR). See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. D, Para. 17 (2008), entitled "Developing Claims for Service Connection for PTSD Based on Personal Trauma." Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found. 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 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. Id. The U.S. Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). With the above criteria in mind, the procedural history and relevant evidence will be summarized. An April 2005 rating decision denied service connection for bipolar disorder and drug abuse. The Veteran did not appeal that rating action in a timely manner, and it therefore became final. In July 2006, the Veteran filed a request to reopen the previously denied claim, now characterized as service connection for PTSD. Summarizing the evidence of record at the time of the April 2005 rating decision, the Veteran's service treatment records (STRs) show that in August 1971 he had a headache that was classified as a probable tension headache. In September 1971 he asked to speak to a medical officer concerning a personal problem. He claimed that he "could not take the Army", and wanted to see a psychiatrist. In March 1972 he complained of pain in his neck muscles for two weeks. Later in March 1972 he complained of headaches that had persisted for one week. A March 1972 physical examination was normal. At April 1972 dental treatment the Veteran complained of pain in tooth 19 after being struck. There was no evidence of traumatic damage to the tooth. He had previously complained of pain in the same tooth in January 1972. The STRs indicate that two days later in April 1972 the Veteran complained of pain the jaw after being struck three days before. He indicated on a form in April 1972 that there had been no change in his medical condition since the March 1972 examination. On an October 1974 medical history report for his reserve service the Veteran indicated that he had had trouble falling asleep since 1971. An October 1974 physical examination was normal. The Veteran's service personnel records indicate that he was absent without leave (AWOL) from an afternoon field wireman course in February 1972, that he was also AWOL for two days in March 1972 and was apprehended by a civilian police department, and that was counseled on his performance a few days later. He was discharged for unsuitability under Article 635-212. Discharge was recommended due to character and behavior disorders. It was noted that the Veteran had a history of inadaptability due to emotional deficiencies, personality, and maturity. He was not amenable to any form of punishment, retraining or rehabilitation within the military setting. Furthermore, his poor performance was noted to be the result of his character and behavior disorder. His immaturity caused him to be AWOL or ignore stressful situations. His behavior was not intentional but was due to an incapacity to become a satisfactory soldier within the meaning of unsuitability. It was noted that the Veteran had been subjected to non-judicial punishment twice under Article 15 of the Uniform Code of Military Justice. The post-service treatment notes indicate that in March 1998 the Veteran was a VA in-patient for two days and was diagnosed with dysthymia superimposed with adjustment disorder with mixed emotional features. It was noted that he had been followed for depression on an out-patient basis since May 1997. The Veteran was hospitalized after putting a gun in his mouth following a fight with his wife. He had been feeling depression that was triggered by environmental stressors. June 2001 VA treatment notes indicate that he had recently stopped using cocaine and was seeking support for his new, sober lifestyle. He was on medication for bipolar disorder and compulsiveness, and thought that his current regimen was good. February 2003 VA treatment notes indicate that the Veteran complained of depression. He said that he was first seen in 1973 for alcohol and drug abuse, suicide, and anger management. His most recent treatment was in September 2002. He reported serving in the Army from 1970 to 1972 and experiencing heavy combat in Vietnam. (In fact, the Board notes that the Veteran's service began in June 1971 and that his personnel records show that he did not serve in Vietnam.) At the February 2003 VA treatment the Veteran was diagnosed with major depressive disorder, polysubstance dependence, and rule out PTSD. At December 2004 treatment his diagnosis was major depressive disorder and marijuana abuse. Regarding the evidence of record submitted in conjunction with the Veteran's request to reopen his claim, he has continued VA treatment. At July 2005 VA treatment the Veteran said that the need to protect himself stemmed from his severely abusive childhood, which was likely exacerbated by his combat experience and being in a marriage in which he was abused for 18 years. The Veteran underwent a psychological evaluation in September 2005 as part of a Social Security claim. He acknowledged that his past reports of having been in Vietnam were not true. He indicated that he had been discharged from the Army for being unable to adjust to Army life. The examiner diagnosed the Veteran with anxiety disorder, NOS (not otherwise specified), dysthymic disorder, and polysubstance dependence, in full sustained remission, by report. At December 2005 VA treatment, the Veteran's diagnosis was PTSD, chronic, and major depression. At June 2007 treatment the diagnosis was PTSD, major depressive disorder, recurrent, and marijuana abuse. The Veteran indicated that he had served in Vietnam and that he had experienced some physical abuse while in the Army. Symptoms included isolation, anger, difficulty being around other people, difficulty sleeping, bizarre dreams, and poor appetite. The Veteran wrote in a June 2007 statement that he never used drugs until he was slipped "acid" at Fort Ord. On a stressor statement, he wrote that his first stressor was being verbally abused by a drill instructor, being forced to wear uncomfortable arch supports, and being sent to a special training camp to lose weight. The second alleged stressor was being given drugs to lose weight and being mistreated in the mess hall by other soldiers while in the special training camp. The third stressor was seeing three men use drugs from his company and then running into them off base. He said the men beat the Veteran up, and he was helped by two people from the town, who took care of him for two days. He said he was then arrested by the town police for being AWOL and was taken back to his base, where he was punished. The fourth stressor was seeing people injure themselves during training that involved climbing poles, which then caused him to go AWOL when it was time for him to participate in the training. The Veteran has continued VA treatment, where he has been diagnosed with PTSD. At March 2008 and August 2008 treatment the Veteran reported that his PTSD diagnosis stemmed from an incident in which he observed a drug deal, causing him to be attacked and knifed. At April 2009 VA treatment the Veteran described being knifed off-post and having his food laced with acid. He indicated that as a child he was passed around from uncle to uncle, and that they beat him and treated him like a slave. His diagnosis at this VA treatment was anxiety disorder, NOS. At 2010 VA treatment the Veteran's diagnosis included PTSD. September 2010 VA treatment notes indicate that he had had a hard time getting over what happened to him in service. He reported being threatened in a class involving climbing a pole during his service by soldiers he knew were involved in drugs, and being jumped and stabbed by the same men. The Veteran also indicated that the police in the town near base planted drugs on him when he was AWOL for two days. The Veteran wrote in a stressor statement submitted at the October 2010 hearing that he walked into a drug deal in the barrack restroom, and that the men involved later caused him to fall when climbing up a pole during training. He then skipped the afternoon class. He also wrote of being attacked and stabbed by the men off base, causing him to be AWOL and get picked up by the police. He indicated that he did not say anything about it because he did not trust anyone. At the October hearing the Veteran testified that he did not report the men who attacked him because they were all supposed to be sent to Vietnam together. He also indicated that he had treatment at a VA facility in Danville, Illinois, in the 1970s. The Board notes that the RO attempted to obtain these records and that they are not available. The Board finds that the evidence received since the April 2005 denial of the claim is relevant to and probative of the issue as to whether the Veteran has service-connected PTSD. Taking this evidence as credible, for the sole purpose of the request to reopen, it is found that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a). Where there is such evidence, "[t]his does not mean that the claim will always be allowed, just that the case will be reopened and the new evidence considered in the context of all other evidence for a new determination of the issues." Smith v. Derwinski, 1 Vet. App. 178, 180 (1991). As discussed above, it is not unusual for there to be an absence of service records documenting events such as the threats and beatings which the appellant alleges. Therefore, evidence from sources other than the Veteran's service records may be used to corroborate an account of a stressor incident. See Patton, 12 Vet. App. 272. 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. 38 C.F.R. § 3.304(f)(3). The objective evidence of record does not support a finding that the Veteran engaged in combat with the enemy. "Engaged in combat with the enemy" has been defined as requiring that a veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). In the instant case, the evidence fails to document that the Veteran engaged in combat, as shown by the lack of foreign service. Furthermore, the record does not show that any of his alleges stressors are due to fear of hostile military or terrorist activity. Therefore, the Veteran's alleges stressors must be verified. See 38 C.F.R. § 3.304(f). The Veteran has given consistent accounts of the incident in which he was AWOL for two days, and his service personnel records show that he was AWOL as he reported. This is the only incident during the Veteran's service in which he was AWOL for such a length of time, and it occurred near the end of his service, showing a decline in his performance. Therefore, resolving reasonable doubt in his favor, he Board finds that the incident in which the Veteran was attacked off-base, causing him to be AWOL for two days, has been confirmed. See Patton, 12 Vet. App. 272. The record contains contradictory accounts from the Veteran as to whether he was actually forced to fall by the same men who later attacked him in a training exercise involving climbing a pole, whether the men threatened him that they would make him fall, causing him to be AWOL from the training, or whether he was AWOL because he had seen others being injured performing the same exercise. The Board notes that the Veteran's STRs show that he was AWOL from a training exercise in February 1972, that in March 1972 he complained of pain in his neck muscles for two weeks, and that he was treated after hitting his jaw in April 1972. If he was AWOL in February 1972 from the afternoon class because the men made him fall in the morning, the record does not show that he was treated for the fall. The Board finds that, giving the benefit of the doubt to the Veteran, the record shows that he had a fear of bodily harm from the training involving climbing the pole and that there was an incident in which he went AWOL rather than participate. Therefore, that training also constitutes a valid stressor. See Patton, 12 Vet. App. 272. The Board cannot find that the incident in which the Veteran's food was laced with "acid" was a valid stressor, because the record does not contain any verification that it occurred. The Veteran indicated at the October 2010 hearing that his coffee was laced and that he was taken to the clinic. However, his STRs do not contain any treatment for such an incident, and the disciplinary records in his service personnel records do not mention it. Thus, the Veteran's accounts are not supported by the objective evidence of record, such as the STRs, personnel records, or accounts from others. See 38 C.F.R. § 3.304(f)(3). Furthermore, the alleged stressor is not such that it could be verified by Joint Services Records Research Center (JSRRC) or other official means. Furthermore, the incidents of verbal abuse from drill instructors, being forced to wear uncomfortable arch supports, being sent to a special training camp to lose weight, being given drugs to lose weight, and being mistreated in the mess hall by other soldiers while in the special training camp are not for consideration as stressors for the purposes of the PTSD claim. This is because, although all of those incidents as described could be stressful, the Veteran testified in October 2010 that the issues involving the special training camp resolved as soon as he finished it, and there is nothing in the record verifying the other alleged stressors. While the Board respects the apparent sincerity of the Veteran's assertions and sympathizes with him, the law requires verification or corroboration of such claimed stressors when, as in the current case, there is no support in the record of his having participated in combat or been threatened by enemy forces. See 38 C.F.R. § 3.304(f)(3). Furthermore, the alleged stressors are not such that they could be verified by JSRRC or other official means. Therefore, the Board finds that, with consideration of the doctrine of giving the benefit of the doubt to the Veteran, the stressors involving being attacked off-base by men from his unit and the training exercise involving climbing a pole, and no other alleged stressor events, have been verified. See Patton, 12 Vet. App. 272. B. Service Connection for Pes Planus/Flat Feet and a Back Disorder/Scoliosis Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2010). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2010). By a January 2007 rating decision, the RO denied the Veteran's claim for service connection for PTSD, pes planus, and a back disorder. The Veteran filed a Notice of Disagreement as to that determination, an SOC was issued in June 2008, and he perfected his appeal by filing a VA Form 9 in August 2008. In an October 2010 written statement, the Veteran withdrew his appeal for service connection for pes planus/flat feet and a back disorder and scoliosis, to include as secondary to pes planus/flat feet. Hence, there remain no allegations of errors of fact or law for appellate consideration on these two issues. Thus, the Board does not have jurisdiction to review them, and they must therefore be dismissed, without prejudice. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204(b), (c). ORDER New and material evidence having been submitted, the Veteran's claim for service connection for PTSD, previously claimed as entitlement to service connection for bipolar disorder and substance abuse, is reopened, and to that extent only the claim is granted. The appeal for service connection for pes planus/flat feet is dismissed. The appeal for service connection for a back disorder and scoliosis, to include as secondary to pes planus/flat feet, is dismissed. REMAND The record shows that the Veteran has been diagnosed with PTSD at VA treatment. However, at some of those treatment sessions he incorrectly asserted that he was a Vietnam combat veteran. Furthermore, the treating providers did not indicate that they were considering only the verified stressors of the Veteran's being attacked off-base by men from his unit and the training exercise involving climbing a pole, in making their diagnoses. Therefore, the Veteran's claim must be remanded to schedule an examination which considers whether a diagnosis of PTSD can be supported based on the confirmed stressors. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any additional evidence, not already of record, which pertains to his claim for service connection for PTSD, and, if necessary, provide authorization to enable the RO to obtain such evidence. Invite the Veteran to submit all pertinent evidence in his possession, and explain the types of evidence that it is his ultimate responsibility to submit. 2. After all available records and/or responses from each contacted entity have been associated with the claims file, or the time period for the Veteran's response has expired, arrange for the Veteran to undergo VA examination to evaluate his PTSD or other mental disorder(s). The claims file, to include a copy of this Remand, must be made available to the examiner. The report of the examination should include indication that the claims file records were reviewed, and should include discussion of the Veteran's service treatment records, his documented history, and his history and contentions regarding his claimed PTSD or other mental disorder. All indicated special studies deemed necessary should be conducted. a. The examiner should provide a definitive diagnosis of any mental disorders present, to include PTSD, if the required DSM-IV criteria are met for that disorder. In evaluating whether the Veteran meets the DSM-IV criteria for PTSD, only the verified stressors of the Veteran's having been attacked off-base and his fear of the pole climbing training exercise may be considered. b. The examiner should then render an opinion as to whether it is at least as likely as not (that is, to at least a 50- 50 degree of probability) that any currently diagnosed mental disorder is causally related to the Veteran's period of active service, or whether such a relationship to service in unlikely (i.e., less than a 50-50 probability). A complete rationale for all opinions expressed must be provided. c. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. d. If the examiner cannot state an opinion without resorting to pure speculation or remote possibility, he/she should so state, and indicate why this is the case. 3. Thereafter, the RO should readjudicate the Veteran's claim service connection for PTSD, previously claimed as entitlement to service connection for bipolar disorder and substance abuse. If the claim remains denied, the Veteran and his representative should be provided with an SSOC and an opportunity to respond. The case must then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs