Citation Nr: 1133085	
Decision Date: 09/07/11    Archive Date: 09/15/11

DOCKET NO. 08-00 853	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1. Whether new and material evidence has been submitted sufficient to reopen a claim of service connection for posttraumatic stress disorder (PTSD). 

2. Entitlement to service connection for PTSD. 


ATTORNEY FOR THE BOARD

Shana Z. Siesser, Associate Counsel



INTRODUCTION

The Veteran had active service from June 1979 to July 1985.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO&IC) in Philadelphia, Pennsylvania. 

This case was previously before the Board in June 2010 and was remanded for additional development. The RO has complied with the remand directives. 


FINDINGS OF FACT

1. The Veteran's original claim of service connection for PTSD was denied by an unappealed rating decision in June 2004, and the Veteran was advised of this determination by letter dated in July 2004. 

2. The evidence received since the June 2004 rating decision relates to an unestablished fact necessary to substantiate the claim for PTSD and raises a reasonable possibility of substantiating the claim.

3. The Veteran did not engage in combat with the enemy during his active military service, and his claimed in- service stressors have not been corroborated.

4. PTSD was not incurred in or aggravated by any incident of active military service.


CONCLUSIONS OF LAW

1. The June 2004 rating decision which denied entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2010).

2. Evidence received since the final June 2004 determination denying the Veteran's claims of entitlement to service connection for PTSD is new and material, and the Veteran's claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.1103 (2010).

3. The criteria for a grant of service connection for PTSD have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).


Duty 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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, if any, 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; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim 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 agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

With respect to a claim of whether new and material evidence has been presented to reopen the claim for service connection, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) established requirements with respect to the content of the duty to assist notice under the VCAA which must be provided to a Veteran who is petitioning to reopen a claim.

The Court held that VA must notify a Veteran of the evidence and information that is necessary to both reopen the claim and establish entitlement to the underlying claim for the benefit sought. The Court also held that VA's obligation to provide a Veteran with notice of what constitutes new and material evidence to reopen a service connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. 

Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran dated in September 2006 and June 2010 that fully addressed all notice elements.

In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. 

VA 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 pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records, VA outpatient treatment records and private medical records. 

The Veteran's reopened claim is presently denied on the basis that he is not a combat veteran under the law, and his claimed stressors are unverified. Both his military service personnel and medical treatment records are contained in the claims folder. Although the Veteran was afforded an additional opportunity to provide information which could aid in the substantiation of his stressors he has not cooperated in this effort. To the extent that he has provided any information beyond the Board's determination that sufficient evidence has been obtained to reopen his claim, the Board's review of the merits of the claim reveals the Veteran is wholly incredible in his accounts. 

The Veteran was not afforded a VA examination; however, because this claim is being denied on the basis that no corroborative evidence has been obtained to substantiate the stressors, a VA examination would not avail the Veteran. 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. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

New and Material Evidence

The record reflects that a June 2004 rating decision denied the Veteran's claim of entitlement to service connection for PTSD. The RO sent notice of the decision to the Veteran at his last address of record in July 2004. The Veteran filed a notice of disagreement in June 2005. A statement of the case was sent to the Veteran in February 2006. The Veteran did not file a substantive appeal. Therefore, the June 2004 rating decision became final. 38 U.S.C.A. § 7105(c). 

In August 2006, the Veteran filed a petition to reopen his claim for service connection for PTSD. If new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 

Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

A review of the statement of the case shows that the RO denied reopening the claim; however, the Board is not bound by the RO's actions. The Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 

Whether new and material evidence is submitted is also a jurisdictional test - if such evidence is not submitted, then the claim cannot be reopened. Id. Thus, the Board must initially determine whether there is new and material evidence to reopen the claim of service connection for PTSD.

The evidence of record at the time of the February 2006 statement of the case consisted of service treatment records that were obtained in December 1985 during development of the Veteran's initial claim for VA benefits of an unrelated issue, post-service treatment records, and stressor statements. The Veteran's claim was denied on the basis of the RO's determination that the Veteran did not have a diagnosis of PTSD or evidence of a verifiable in-service stressor.

The evidence submitted in support of reopening the claims includes more recent medical records that show diagnoses of PTSD, a lay statement by the Veteran's former spouse regarding his mental status after he returned from service, and documents submitted by the Veteran, which he purports to be service treatment records, showing that the Veteran was diagnosed with and treated for a "stress disorder." 

Presumed credible for the limited purpose of ascertaining whether the claim should be reopened under Justus, the Board finds that this evidence raises a reasonable possibility of substantiating the Veteran's claim. The evidence is new and material under the provisions of 38 C.F.R. § 3.156(a) and the claim is reopened. 


Merits of the Claim

The Veteran contends that he is entitled to service connection for PTSD that he incurred as a result of his period of service. The Veteran's stressors cannot be verified and the Veteran did not participate in combat. Although the Veteran's recent submissions are sufficient to reopen the claim and review its merits, a weighing of all evidence of record on the reopened claim reveals the Veteran has proffered fabricated evidence -to the extent that it reveals any facially relevant in-service events. The preponderance of the evidence is therefore against the claim and the appeal will be denied. 

Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2010); Cosman v. Principi, 3 Vet. App. 303, 305 (1992).

In order to establish service connection for the claimed disorder, 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 criteria for a diagnosis of PTSD are not established by VA. Instead, the appellate courts and VA have recognized that a diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which 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) and 4.125(a); Cohen v. Brown, 10 Vet. App. 128, 140-41 (1997).

In order for service connection for PTSD to be granted, there must be medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressors occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f).

The record shows a positive screening for PTSD in March 2005 by a VA physician and a diagnosis of PTSD by a VA social worker in May 2005. Additionally, there is a September 2006 letter from a staff psychiatrist, indicating that the Veteran has a diagnosis of PTSD. 

However, the validity of a diagnosis of PTSD is dependent on the factual basis relied upon by the examiner. See, e.g. Reonal v. Brown, 5 Vet. App. 458 (1993); Swann v. Brown, 5 Vet. App. 229 (1993) (a medical opinion based upon an inaccurate factual premise is not probative); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing factors for determining probative value of medical opinions).

It appears that before medical care providers, the Veteran has misrepresented his military history - thus undermining the factual basis of the diagnosis of PTSD. In a May 2005 VA Mental Health Assessment Note, the Veteran reported that he served in combat and that his highest military rank was that of pay grade E-6. However, his reports of separation from the Armed Forces (DD 214) and his military personnel records do not indicate that he served in combat. 

To the extent that it bears upon his lack of credibility, the Veteran reenlisted in May 1983 while in pay grade E-4, and he was discharged in July 1985 in pay grade E-3. Stated alternatively, the Veteran never attained the rank of E-6, and was indeed demoted for unknown reasons while on active service. 

Apart from the fact that the diagnosis of PTSD does not have an accurate factual basis, the Veteran's claimed stressors have not been and cannot on the current record be substantiate - largely because the Veteran has not cooperated with VA's attempt to assist him in their development. 

The evidence necessary to establish that the claimed stressor occurred varies depending on whether it can be determined that the Veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b); 38 C.F.R. 3.304(d).. The Veteran's dates of service do not fall within a period of war and he is not the recipient of any combat-related awards or decorations.

The various diagnoses of PTSD based on the Veteran's account of having served in combat are therefore not factually based. His account of the claimed stressors is therefore not presumed credible. See 38 U.S.C.A. § 1154(b) (providing that if it is found that a veteran served in combat, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation); 38 C.F.R. § 3.304(d) (2010).

Since the Board finds that the Veteran did not engage in combat with the enemy, there must be credible supporting evidence of record that the alleged stressors  occurred in order to warrant service connection. Credible evidence that the claimed in-service stressors occurred is still required, and credible supporting evidence cannot consist solely of after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996); 38 C.F.R. § 3.304(f) (2010). In order to establish service connection for a Veteran who had no combat experience, as here, there must be independent evidence of record to corroborate the Veteran's statement as to the occurrence of a claimed stressor. See Doran, 6 Vet. App. at 288-89. The Veteran's lay statements alone are not enough to establish the occurrence of an alleged stressor. See Moreau, 9 Vet. App. at 395.

In a July 2005 stressor statement, the Veteran related (1) that in June or September 1979, he knew of a fellow marine who cut his wrist with a knife, and two other marines engaged in sex in the bunk above his own; (2) that in November 1979 or in September 1981, 2 other marines were killed in a "live fire" incident. In a September 2006 statement, the Veteran stated that a tank battalion marine was hurt or killed in training for transport to Operation Kuwait CSSD-26. He alleged that he has nightmares as a result of witnessing this incident. However, the Veteran was unable to provide the name or rank of the injured or killed marine. 

The RO has made all appropriate attempts to substantiate the Veteran's claimed in-service stressors. In November 2006, the RO requested that the Veteran provide additional data as to the names, dates, times, places and other relevant information as to the claimed incidents. The Veteran did not then respond to this effort by the RO.

In September 2006 and January 2007, the RO submitted a formal finding that the information submitted by the Veteran was insufficient to send to the United States Armed Services Center for Unit Records Research (CURR) for verification. The RO stated all procedures to obtain verifiable information regarding the Veteran's stressors had been made and any further efforts would be futile. The Veteran was so advised of this formal finding by the issuance of a Supplemental Statement of the Case in November 2007. 

In December 2007 with his substantive appeal, the Veteran submitted several documents which he alleges show that he was treated for a mental stress disorder while on active duty. However, he did not provide that information requested by the RO in its September 2006 and January 2007 letters as to his claimed stressors. 

The Board has carefully examined the submitted documents to the extent that they may show evidence of in-service stressors, but finds them to be clearly fabricated reports. 

In a February 1982 letter entitled "Medical comment/Evaluation Report" and addressed to the "Naval Hospital Long Beach," an individual identified as "J. Seiliet" who further is identified as a "Senior Chief, USN," indicates the following report was from "Medical Office, Counselors," verbatim:

"Cpl Mandy evaluated for complaint from incident involving hurt, harm or death to a fellow Marine while on TAD (Temporary Additional Duty) assigned. Our review of injury is confirmed by service member's wife and unit supervisor (SSgt Williams). Cpl Mandy appears irritable/hypervigilance at times, cries while showing much distress due to depressed feeling from incident.

Otherwise, member states he can't sleep, due to nightmares, flashbacks and fear panics that happen. Military Police did respond to home on one occasion, advised command of issue.

CONCLUSION: 

It is our medical diagnosis that CPL Mandy suffers from stress disorder and depression. His traumatic events while on TAD overwhelmingly brought his current cluster of troubles. Other factors of personal history on record/tachycardia and heart palpitations are indicative cues to the same. Member screened for diagnostic distress disorder and released. 02/82"

This letter is a clear fabrication as can be gleaned by several points. Firstly, 
"US GOVERNMENT PRINTING OFFICE 1982-683-90" is emplaced on the letter in the bottom third of its face, thus suggesting that the document is the product of multiple manipulations of photocopying. Further, the United States Navy Medical Corps does not place such reports on simple bond paper. Instead, such reports are routinely documented on official counseling reports. Moreover, a senior chief is a non-commissioned officer of the Naval service, and as such would not be qualified to render a diagnosis. Indeed, such a diagnosis would be expected to have been reported over the signature of a qualified physician on an authorized form - of which it cannot be doubted has been repeatedly observed. 

Of particular note, the identity of "J. Seiliet" is of striking similarity to that of "J.M. Sieliet," whose signature appears on an official U.S. Navy letter indicating that the Veteran was counseled in July 1985 after the findings of a physical evaluation board found him unfit for further service due to a knee disability. Stated alternatively, the individual who is identified as signing the alleged February 1982 letter, if the same individual signing the authenticated July 1985 letter received in December 1985 with the Veteran's service records, misspelled his own name. 

 
A clinical record, dated December 3, 1981, allegedly shows that the Veteran was referred to the Chief of Services from Sick-Call/AM WAMC for complaints of a stressful life, no sleep, crying, and periods of disturbances due to related issues from an injury to another service member during his tour of additional duty (TAD), "CSSD-21." However, service personnel records confirm that that the Veteran was on TAD to CSSD-26 from September 11, to November 9, 1981. Further, as noted below, the Veteran's service treatment records received from government record depositories and detailed below directly belie the information contained in the December 1981 report and obtained from an unknown source by the Veteran.

The Veteran's obtained service medical and personnel records do not contain these proffered documents, and their source is therefore unknown. In the June 2010 remand, the Board offered the Veteran an opportunity to provide the originals of these records to enable verification. The Veteran has not provided the originals.  Additionally, the RO contacted the facility at which these records purportedly were created, and the facility responded that it had no records of mental distress treatment for the Veteran from December 1981 through February 1982. 

Most critically, the documents proffered by the Veteran purport to show that for the period from December 1981 to February 1982 he was treated for nightmares, "flashbacks," "fear panics," hypervigilance, depression, and an assault upon his ex-wife (for which she alleges that he attended "weekly meetings," presumably in self-help groups). However, the Veteran's June 1983 reenlistment medical examination reveals no psychiatric abnormalities, and the Veteran specifically denied having, or ever having had "depression or excessive worry" and "nervous trouble of any sort" in an accompanying medical history questionnaire. 

Because the service medical records were generated with a view towards ascertaining the Veteran's then- state of mental fitness, they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).

It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The source of these documents cannot be verified, the Board does not find them to be credible, probative evidence supporting the Veteran's claim.     

While the Veteran is competent to offer lay evidence as to his symptoms and his account of the alleged stressors, the Board does not find him, nor his ex-wife,  credible. The RO could not verify his stressors, because the Veteran has failed to cooperate in providing necessary information towards substantiation.  The duty to assist in the development and the adjudication of a claim is not a one-way street, and the Veteran's failure to cooperate in this effort has essentially foreclosed any further development. Wamhoff v. Brown, 8 Vet. App. 517 (1996); Zarycki v. Brown, 6 Vet. App. 91 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA could not verify the purported service treatment records filed by the Veteran. Without verifiable stressors from service, the Veteran's claim must be denied. 

In summary, because all of the elements required for a finding of service connection for PTSD are not shown, the preponderance of the evidence is against the Veteran's claim and his claim is denied. Consequently, the doctrine of reasonable doubt is not for application. Gilbert, supra.






ORDER

As new and material evidence has been presented sufficient to reopen a claim of service connection for PTSD, the claim is granted to this extent.

Service connection for PTSD is denied. 



______________________________________________
Vito A. Clementi 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs