Citation Nr: 1121267 Decision Date: 06/01/11 Archive Date: 06/09/11 DOCKET NO. 08-18 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1971. This matter came to the Board of Veterans' Appeals (Board) from an August 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for PTSD. The Veteran testified at a Board hearing in September 2008; the transcript is of record. This matter was remanded in November 2009. The U.S. Court of Appeals for Veterans Claims (Court) has held that in claims involving unrepresented Veterans, the Board must broadly construe claims, and in the context of psychiatric disorders must consider other diagnoses for service connection when the medical record so reflects. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, service connection for psychiatric disability other than PTSD was denied in an August 2007 Board decision and there has been no appeal. The Board will limit its consideration to service connection for PTSD in this decision. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran engaged in combat with the enemy, and his claimed stressors have not been verified. 2. The Veteran does not have PTSD that is related to his active service. CONCLUSION OF LAW PTSD was not incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VA satisfied its duties to the Veteran in a VCAA letter issued in May 2006. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to establish a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). In Bryant v. Shinseki, 23 Vet App 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing has the duty to fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge outlined the issue on appeal and suggested that evidence tending to show that pertinent disability was related to active duty would be helpful in establishing the claim. This matter was remanded in November 2009 to assist the Veteran in substantiating his claimed stressors. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing. The Board also finds that VA has complied with all assistance provisions of VCAA, to include substantial compliance with the instructions in the November 2009 Board Remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's service treatment records, service personnel records, and post-service VA and private medical records. Per the November 2009 Remand, VA requested stressor verification from the U.S. Army and Joint Services Records Research Center (JSRRC) which was completed in April 2010. There is no indication of relevant, outstanding records which would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Criteria & Analysis The issue before the Board involves a claim of entitlement to service connection for PTSD. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 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 inservice stressor. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(2). 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 [PTSD] 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. See 38 C.F.R. § 3.304(f)(3) (2009 and 2010 Supplement); 75 Fed. Reg. 39843 - 39852 (July 13, 2010). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). The Veteran had active service from May 1968 to May 1971, and served in Korea from September 27, 1968, to October 24, 1969. His DD Form 214 reflects that his MOS was 'Whl Veh Mech.' At the Board hearing, the Veteran testified that in addition to being a wheel mechanic, he also served as a driver for officers. Thus, while the Veteran served during the Vietnam era, there is no evidence to support a finding that he served in the country of Vietnam nor that he served in a combat role. Thus, the Board finds that there is no evidence that the Veteran participated in combat during active service, and the Veteran does not claim combat service. With regard to the question of whether the Veteran engaged in combat, the phrase "engaged in combat with the enemy," as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Mere service in a combat area or combat zone does not in itself lead to the conclusion that an individual engaged in combat. VAOPGCPREC 12-99 (October 18, 1999). Because the record does not demonstrate that the Veteran engaged in combat with the enemy, his alleged in-service stressors must be corroborated. Accordingly, the question which must be resolved in this decision is whether the Veteran sustained a qualifying stressor within the requirements of 38 C.F.R. § 3.304(f), as discussed above. A November 2004 VA outpatient treatment record reflects an addendum from the Veteran's treating psychiatrist which states that the Veteran's history reflects that he was exposed to several traumatic stressors during his service in Korea, including observing a commanding officer walk into aircraft rotors and be "chopped to bits" and witnessing a Korean man dismembering and binding his deceased daughter to prevent the escape of her soul or of the soul's possession of another family member. The VA psychiatrist opined that the Veteran meets the full criteria for PTSD Correspondence dated in March 2006 from the Veteran's VA treating psychiatrist states that the Veteran has been treated since November 2004, and his primary diagnoses are PTSD due to experiences in Korea, and bipolar disorder. In a June 2006 statement from the Veteran, he asserted that during his service in Korea he witnessed a Korean man with a hatchet using it on a young Korean girl's body. Her throat was cut wide open and she was not moving. He could do nothing to stop the actions of the man and was told it was part of Korean culture. He witnessed the killing and the disposing of her body. He also stated that he witnessed children eating their mothers' feces. Correspondence dated in January 2008 from a licensed psychologist, Dr. J.T.H., states that he had treated the Veteran for many years, had evaluated him for Social Security Administration (SSA) disability, and had diagnosed bipolar disorder. Dr. J.T.H. stated that given the Veteran's history of military service in Vietnam and the experiences he had there and his continued history of psychological distress including his treatment and diagnosis from VA of PTSD, it was opined that he suffers from PTSD. At the Board hearing, the Veteran testified that in addition to being a wheel vehicle mechanic, he also served as a driver for officers. He testified that in December 1968, he drove Sergeant Major R.C. to Oson Air Force Base in Korea, and the Sergeant Major stepped out of the vehicle and walked into the tail rotor of a running Kiwi helicopter resulting in his death. (See Transcript at 4.) An attempt was made to verify this claimed stressor with the JSRRC. In April 2010, the JSRRC reported that the United States Forces Korea - Eighth United States Army Chronology from July 1 to December 31, 1968, was researched. The chronology does not document an incident in which an individual was killed in a helicopter incident in Korea during the reported period. United States Military Casualty reports for December 1968 were researched, and the reports document that there were five individuals killed in Korea in November and seven in December 1968. The reports do not document anyone with the initials of R.C. or the rank of Sergeant Major. In December 2010 correspondence from the Veteran's treating VA psychiatrist, it was noted that the Veteran has diagnoses of PTSD and bipolar disorder. The VA psychiatrist opined that the diagnosis of PTSD is a result of his experiences in service while stationed in Korea. He witnessed the ritual dismemberment of a Korean girl and this traumatic experience is the basis of the Veteran meeting criteria A(1) and A(2) for PTSD according to the DSM-IV criteria. It was therefore the opinion of the VA psychiatrist that the basis of his diagnosis of PTSD is much more likely than not a result of his military service. The Board has reviewed the statements and testimony made by the Veteran as to his experiences during his period of service; however, his statements that these events occurred are insufficient, by themselves, to establish entitlement to service connection. Because the record does not show participation in combat, the claimed stressors must be corroborated. The Board stresses that mere presence in a combat zone is not sufficient, solely in and of itself, to support a diagnosis of PTSD. A stressor must consist of an event during service. Zarycki v. Brown, 6 Vet. App. 91, 99 (1993). As detailed, the stressor recounted at the Board hearing was not verified, and the stressor pertaining to the girl killed in Korea would not be capable of independent verification as such incident is not reported to have occurred in the scope of his official duties and civilian deaths would not ordinarily be documented by military authorities. Likewise, the Veteran has not submitted any corroborating lay statements which could verify such incident. The Board must, therefore, conclude that there is no evidence to substantiate that the Veteran's claimed in-service stressors occurred. The Board has considered the diagnoses of PTSD which are reflected in VA outpatient treatment records; however, the Board notes that such diagnoses were related to the Veteran's unverified death of a commanding officer and unverified and uncorroborated report of the death of the girl in Korea. For instance, his VA treating psychiatrist has specifically opined that the basis of the diagnosis of PTSD is based on the unsubstantiated death of the commanding officer by helicopter and the ritual dismemberment of a Korean girl. The January 2008 private psychologist opined that his PTSD was due to his experiences in Vietnam; however, the Veteran did not service in Vietnam thus such diagnosis and opinion has no probative weight. While acknowledging that a diagnosis of PTSD is reflected in the records based on the Veteran's purported in-service experiences and post-service symptomatology, critical elements of this diagnosis, most fundamentally those concerning the existence of stressors, appear to be based wholly upon statements of history provided by the Veteran. Whether the Veteran was actually exposed to a stressor in service is a factual determination and the Board is not bound to accept such statements simply because treating medical providers may have done so. As detailed, the witnessing of the death of the Korean girl reported by the Veteran has not been able to be independently verified and the Veteran has not offered any supporting evidence, other than his unsubstantiated testimony. The Board is not bound to accept medical opinions diagnosing PTSD that are based on history supplied by the Veteran, where that history is unsupported by the evidence. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Board has considered the Veteran's statements pertaining to the death of the Korean girl and his general observations regarding people in Korea such as children eating their mothers' feces; but the Board does not find that that such reports constitute fear of hostile military or terrorist activity as there is no indication that the Veteran experienced, witnessed, or confronted an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others. As detailed, the Veteran served in Korea and never served in country in Vietnam. His reported stressors were not from events involving hostile military or terrorist activity. In conclusion, there is no persuasive evidence that the Veteran engaged in combat and the only evidence of in-service stressors are contained in the Veteran's uncorroborated statements. Thus, there is no probative evidence that the claimed in-service stressors actually occurred. Consequently, absent probative supporting evidence, an essential element for a grant of service connection for PTSD is not established. Furthermore, the Board notes that the Veteran's post-service medical providers appear to have rendered a diagnosis of PTSD based upon the Veteran's uncorroborated accounts as to his in-service experience, and such diagnoses are not based on any fear of hostile military or terrorist activity. A diagnosis of PTSD which is based on examinations which relied upon an unverified history is inadequate. See West v. Brown, 7 Vet. App. 70, 77-78 (1994). In view of the foregoing, because there is no credible supporting evidence of an in-service stressor, and because the diagnosis of PTSD in the record lacks probative value, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for PTSD. The benefit sought on appeal must, accordingly, be denied. ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs