Citation Nr: 1127649 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 10-27 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include Alzheimer's disease, including as secondary to PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. B. Joyner, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board considers the Veteran's claim for service connection for PTSD as encompassing all psychiatric disorders with which the Veteran has been diagnosed, pursuant to the decision of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The competent, credible evidence of record reflects that the Veteran did not serve in combat. 2. There is no independent, credible supporting evidence that the Veteran's alleged in-service stressors occurred. 3. Although the Veteran is currently diagnosed with other acquired psychiatric disorders - but not PTSD, there is no competent evidence any of the disorders are linked to his military service. There is also no evidence of an acquired psychiatric disorder during service or for several years thereafter, or of a psychosis within one year after service. 4. There is no competent evidence that the Veteran is currently diagnosed with PTSD in accordance with the applicable VA regulation, and the Veteran's alleged in-service stressors are either too vague or are simply not verified. 5. There is no evidence that the Veteran's Alzheimer's disease with depression and dementia is related to service or to a service connected disability. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). 2. The criteria for service connection for Alzheimer's disease with depression and dementia, including as secondary to a service-connected disability, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The Board notes that in letters dated in June 2008, August 2008, and March 2009, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran and the types of evidence that will be obtained by VA. Additionally, the June 2008 notice letter informed the Veteran as to disability ratings and effective dates. Because the notice pursuant to Dingess came before the initial adjudication of the claims, the timing of the notice complied with the requirement that the notice must precede the adjudication. Thus, the Board concludes that the duty to notify has been met. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the VA treatment records and an Aid and Attendance examination report. The Veteran's service treatment records have been determined to be unavailable because they were presumably destroyed in the accidental fire at the National Personnel Records Center in 1973. In cases such as this, where the veteran's service records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Also of record and considered in connection with the appeal are various written statements submitted by the Veteran, his family, and his representative. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, identifying pertinent medical evidence and submitting evidence. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Governing Laws and Regulations for Service Connection Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for an injury, the Court generally requires a veteran to show (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). In cases where the veteran cannot establish some of these elements, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the Veterans Court requires a veteran to show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Service connection may be demonstrated by showing direct service incurrence or aggravation, as discussed above, or by using applicable presumptions, if available. Combee, 34 F.3d at 1043. As to presumptive service connection, some diseases on the other hand are chronic, per se, such as psychoses, and therefore will be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year after service. Even this presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In Allen v. Brown, 7 Vet. App. 439 (1995), the Court held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, a veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the holding in Allen; however, under the facts of this case the regulatory change does not impact the outcome of the appeal. Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. PTSD In order to establish service connection for PTSD, governing law requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A "clear" diagnosis of PTSD is no longer required. Rather, a diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f). If it is established through military citation or other supportive evidence 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. 38 C.F.R. § 3.304(f). See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the Veteran engaged in combat). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that the veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If VA determines either that the veteran did not engage in combat with the enemy or that the Veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the Veteran's testimony or statements. 38 C.F.R. § 3.304(f); Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). But as stated by the Court, corroboration of every detail of a claimed stressor, including the appellant's personal participation, is not required. Instead, a veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure. Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (quoting Suozzi v. Brown, 10 Vet. App. 307 (1997)). The final requirement of 38 C.F.R. § 3.304(f) is medical evidence of a nexus between the claimed in-service stressor and the current disability. However, after-the-fact medical nexus evidence cannot also be the sole evidence of the occurrence of the claimed stressor. Moreau, 9 Vet. App. at 396. That is, just because a physician or other health professional accepted a Veteran's description of his military experiences as credible and diagnosed him as suffering from PTSD does not mean the [Board is] required to grant service connection for PTSD." Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). In this regard, again, a medical provider cannot provide supporting evidence that a claimed in-service event actually occurred based on a post-service medical examination. Moreau, 9 Vet. App. at 395-96. The Veteran's own statements to the medical provider will not serve as sufficient corroboration of the alleged stressor. Independent verification is required. Id. The Veteran claims that he is entitled to service connection for PTSD because it was incurred during his service in Korea, where he states he participated in combat. A review of the Veteran's DD Form 214 does not reflect any military citation or other supportive evidence that he participated in combat. The Veteran's DD Form 214 shows that his most significant duty assignment was 17th Ordinance Company. It also shows that he received the National Defense Service Medal, Korean Service Medal, United Nations Service Medal, and Good Conduct Medal. In support of his claim, the Veteran has submitted many statements written by his spouse, indicating that he was on guard duty at night, was shot at, had to jump and hide in fox holes, and saw many soldiers wounded and killed. He submitted many statements from family members who stated that he had no difficulties prior to military service. After he came home, he was an unhappy, grumpy, and changed man. He also submitted internet statements showing that the 17th Ordinance Company was part of the 8th Infantry division. However, he indicated that he does not know the regiment or battalion. The record contains a May 2009 memorandum which is a formal finding of a lack of information required to corroborate a stressor associated with a PTSD service connection claim. It was noted that the information required to corroborate the Veteran's stressors is insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps of National Archives and Records Administration (NARA) records. It was further noted that the Veteran's personnel file is fire related. It was concluded that the Veteran did not submit sufficient information in order to corroborate his stressor. A September 2006 form from the Rural Health Services Consortium, Inc. notes that the Veteran was seen for depression and crying spells. He was noted to frequently remember back to the war. Diagnoses of PTSD, severe depression, and memory loss were made. It was also noted that he also had likely dementia. A September 2006 VA examination for housebound status or aid and attendance notes that the Veteran's complaints included severe memory deficits, severe depression, and PTSD. The diagnoses included PTSD. The medical evidence of record contains VA treatment records which are dated in 2008 and 2009. They contain diagnosis of dementia, Alzheimer type. There is no PTSD diagnosis. The Veteran filed his claim for service connection for PTSD and Alzheimer's disease in June 2008. After review of the record, the Board notes that the Veteran does not have a diagnosis of PTSD during the period of the claim. Specifically, the only diagnoses of PTSD are from 2006, which predate the claim by two years. Moreover, the VA treatment records showing ongoing mental health treatment from 2008 and 2009 do not, in any way, mention PTSD symptoms, complaints, findings, or a diagnosis of such. The only mental health diagnosis the Veteran has had during the period of the claim is dementia, Alzheimer's disease. The Board notes that, in the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, none of the medical evidence reflects a diagnosis of PTSD during the pendency of the claim. With respect to the remaining aspects of the claim, the Board also finds that there is insufficiently credible supporting evidence that an alleged in-service stressor actually occurred. 38 C.F.R. § 3.304(f); Cohen, 10 Vet. App. at 147; Moreau, 9 Vet. App. at 395. Initially, the Board finds insufficient evidence that the Veteran engaged in combat with the enemy. Although the Veteran served in Korea, the Veteran's DD Form 214 does not reflect receipt of medals, badges, or decorations that specifically denote combat with the enemy. Importantly, the service personnel and treatment records are not available. However, the Veteran does not contend that he had PTSD during service, or that he was wounded in combat. With regard to the lack of service personnel records, the Board notes that there is a heightened duty to consider the benefit of the doubt rule. VA's General Counsel has defined the ordinary meaning of the phrase "engaged in combat with the enemy" to mean that the Veteran must have personally participated in a fight or encounter with a military foe or hostile unit or instrumentality. Evidence that the Veteran participated in attacking or defending an attack of the enemy would ordinarily show he had engaged in combat. The phrase would not apply to veterans who served in a general "combat area" or "combat zone," but did not themselves engage in combat with the enemy. VAOPGCPREC 12-99. In fact, the Federal Circuit recently held that the term "engaged in combat with the enemy" in § 1154(b) requires that the Veteran "personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, as determined on a case-by-case bases. A showing of no more than service in a general 'combat area' or 'combat zone' is not sufficient to trigger the evidentiary benefit of § 1154(b)." Moran v. Peake, 525 F.3d 1157, 1159 (Fed. Cir. 2008). The Board notes that VA has recently amended the regulations regarding service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. These regulations apply to situations where a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f)(3). The Veteran's assertions that he engaged in combat with the enemy are not ignored, but are not sufficient, by themselves, to establish a combat related stressor through his lay testimony alone. The Veteran's assertions regarding his alleged stressors are so general and do not show that he personally participated in combat. They merely support the contention that he was in a combat zone. This is insufficient evidence to show that he participated in combat. Therefore, because there is insufficient evidence of combat with the enemy, there must be credible supporting evidence that the claimed in-service stressors actually occurred. 38 C.F.R. § 3.304(f); Cohen, 10 Vet. App. at 147; Moreau, 9 Vet. App. at 395. Unfortunately, there is not, so the Board must deny his claim. In this regard, the Veteran's claimed stressors are general in nature and do not involve any specific time, place, event, or person. They are mere statements that he hid in fox holes and witness countless wounding and killings of fellow and enemy soldiers. The Board acknowledges the many family letters, which discusses the changes in the Veteran's behavior since his discharge from service. Unfortunately, these letters provide no specific independent corroboration of his alleged in-service stressors. In summary, there is no current diagnosis of PTSD, there is no credible evidence that the Veteran' participated in combat, and there is no supporting evidence for his alleged in-service stressors. 38 C.F.R. § 3.304(f); Cohen, 10 Vet. App. at 147; Moreau, 9 Vet. App. at 395. In this regard, the Veteran's lay statements and his family's lay statements are not sufficient. Id. Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for PTSD. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Alzheimer's Disease The Veteran has claimed entitlement to service connection for Alzheimer's disease as secondary to his PTSD. The Board notes that when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Thus, the Board will address service connection for Alzheimer's disease on both a direct and secondary basis in this appeal. With respect to the claim on a direct basis, the Board notes that there is no allegation that Alzheimer's disease began during service. Although the Veteran's service treatment records are unavailable through no fault of his own, he does not even allege that Alzheimer's disease was present during service. There is current medical evidence of a diagnosis of Alzheimer's disease; however, there is no indication that it is in any way etiologically related to active service. To the extent that the Veteran asserts that his Alzheimer's disease and the related disorders of depression and dementia are directly related to military service, the Board notes that the Veteran is not competent to provide an opinion requiring medical knowledge, such as a question of medical diagnosis or causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Veteran is only competent to give evidence about his symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The only evidence suggesting an etiological link between the current Alzheimer's disease, depression and dementia and service is the Veteran's claim for service connection. Accordingly, the Board finds that the competent evidence of record fails to establish that the Veteran's Alzheimer's disease with depression and dementia are as a result of his service. Consequently, service connection on a direct basis is denied. With regard to the claim on a secondary basis, the Board notes that because service connection for PTSD is denied herein, there is no service-connected disability on which to base the secondary theory of entitlement to service connection for Alzheimer's disease. As such, the claim also fails on this basis. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Consequently, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for Alzheimer's disease on both a direct and secondary basis. ORDER Service connection for PTSD is denied. Service connection for an acquired psychiatric disorder, to include Alzheimer's disease is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs