Citation Nr: 1134582 Decision Date: 09/15/11 Archive Date: 09/23/11 DOCKET NO. 07-22 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder. 2. Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Russell P. Veldenz, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1973 to June 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran claimed service connection only for posttraumatic stress disorder. As the record includes diagnoses of adjustment disorder with anxiety and depressed mood, and as the psychiatric diagnoses arise from the same symptoms for which the Veteran seeks benefits, the diagnoses do not relate to entirely separate claims not yet filed by the Veteran. Rather, the diagnoses need to be been considered to determine the nature of the Veteran's current condition relative to his claim. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). And further development is needed on the claim of service connection for a psychiatric disorder other than posttraumatic stress disorder. In October 2008, the Veteran did not appear for a hearing before the Board. Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). During the appeal of this claim, the Veteran filed claims of service connection for a right knee disability and service connection for gastroenteritis, which the RO denied in a rating decision dated in May 2008. As the Veteran did not perfect an appeal of either the claim for service connection for a right knee disability and service connection for gastroenteritis, the claims have not been developed for appellate review by the Board. In November 2008, the Board remanded the case to obtain records of the United States Marine Corps, namely, a unit history or Lessons Learned/Operating Reports, including any information on whether the Veteran's unit was sent to Vietnam and whether the unit was engaged in combat. The RO received the requested information in June 2010. As the requested development has been completed, no further action is necessary to comply with the Board's remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). The claim of service connection for a psychiatric disorder other than posttraumatic stress disorder is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The Veteran did not serve in combat, posttraumatic stress disorder was not diagnosed in service, there is no credible evidence of fear of hostile military or terrorist activity, or credible evidence of a noncombat in-service stressor to support a diagnosis of posttraumatic stress disorder that conforms to the Diagnostic and Statistical Manual of Mental Disorders, 4th ed., (DSM-IV), of the American Psychiatric Association in accordance with 38 C.F.R. § 4.125(a). CONCLUSION OF LAW Posttraumatic stress disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2010). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in June 2006. The notice included the type of evidence needed to substantiate the claim of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Further VCAA notice is not required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, private medical records, and service department records. The Veteran was asked to complete and return a posttraumatic stress disorder questionnaire in June 2006 and in August 2006, which the Veteran did not return. He has, however, submitted a 16 page narrative detailing the alleged in-service stressors. The Veteran submitted records of two private physicians. The Veteran requested copies of his personnel file including travel orders and TDL orders. The RO responded in July 2007, sending the Veteran the records then contained in the Veteran's file. The entire personnel file was received in August 2007, but after review, the Board notes it does not contain any travel orders or TDL orders. VA has not conducted medical inquiry in the form of a VA compensation examination in an effort to substantiate the claim because there is no credible evidence of the alleged in-service stressor and without credible supporting evidence, the in-service element of the claim under 38 C.F.R. § 3.159(c)(4)(i)(B) is not substantiated and, therefore, a medical examination or medical opinion is not required to decide the claim. 38 C.F.R. § 3.159(c)(4). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection and Posttraumatic Stress Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability first diagnosed 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). In addition, service connection for posttraumatic stress disorder (PTSD) requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM- IV); 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. 38 C.F.R. § 3.304(f). Unless posttraumatic stress disorder is diagnosed in service and the in-service stressor is related to service or the in-service stressor is related to combat or to fear of hostile military or terrorist activity or to a prisoner -of-war experience or to a personal assault, the Veteran's lay testimony alone may not establish the occurrence of an alleged noncombat in-service stressor and the record must contain credible supporting evidence that the alleged noncombat in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (as amended 75 Fed. Reg. 39,847, 39, 852 (July 13, 2010); see Moreua v. Brown, 9 Vet. App. 389, 396 (1996) (When a claim for PTSD is based on a noncombat stressor, the noncombat veteran's testimony alone is insufficient proof of a stressor.). "Fear of hostile military or terrorist activities" means that a Veteran experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). 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 Veteran. 38 U.S.C.A. § 5107(b). Facts The Veteran seeks service connection for posttraumatic stress disorder. The Veteran asserts that from June to October 1974 he was in Vietnam, where he engaged in combat. The service personnel records show that during this time period the Veteran was assigned to Company G, Battalion Landing Team 2/9, 3rd Marine Division. The records do not show service in Vietnam. There is no service personnel evidence such as awards or citations to indicate that the Veteran engaged in combat at any time or that he was subjected to the threat of hostile military action or terrorist activity. The service treatment records contain no complaint, finding, history, treatment, or diagnosis of a psychiatric disorder including posttraumatic stress disorder. On both the enlistment examination in April 1973 and the separation examination in May 1977, the psychiatric examinations were normal. The service treatment records for the year 1974 indicate the Veteran sought treatment at various times throughout the year. All treatment occurred through the Camp Schwab, Okinawa dispensary or the medical department of the 2nd battalion, 9th Marines, 3rd Marine Division with an FPO number of 96602. This specifically includes treatment in July, August, September, and October 1974, mostly for right knee problems and for groin pain. The service personnel records show demonstrate the Veteran remained or was assigned to Company G, Battalion Landing Team 2/9, 3rd Marine Division, for the entire period from June 1974 to October 1974. The Veteran served in the Pacific as his records indicated he crossed the equator southbound towards Sydney, Australia. Nothing in the personnel records indicate service in Vietnam or that he was in combat such as an award of combat medals. In response to a request from the RO, the National Records and Archives Administration provided the records for the United States Marine Corps for the unit history or Lessons Learned/Operating Reports (LL/OR) of Company G, Battalion Landing Team 2/9, 3rd Marine Division, from June 1974 to October 1974. The records do not show that the unit was sent to Vietnam or that the unit was engaged in combat. The Veteran's unit was deployed aboard various United States Naval ships with stops in Japan, in Subic Bay, in the Philippines, in Taiwan, and in Okinawa. The RO also obtained the naval histories for the various ships that the Veteran's unit was stationed for the same time period. None of the ships entered into the territorial waters of Vietnam. Research by the RO revealed that "FPO 96602" was a designation for the 3rd Marine Division while stationed in Okinawa. The Veteran has submitted a 16 page stressor statement detailing what he contends is his service in Vietnam where he was involved in combat and the emotions he experienced. In it, he asserts that he was called out of formation and sent without being told to Phu, Vietnam, which was near Cambodia. He described service in a camp that engaged in search and destroy missions for the Viet Cong. He also described abusive behavior by his superior officers. The Veteran alleges that in the period from June to October 1974 he was promoted from private to sergeant, but he was removed from camp after he hit an officer and he was sent to a hospital in Guam. Analysis On the basis of the service treatment records alone, posttraumatic stress disorder was not affirmatively shown during service and service connection under 38 U.S.C.A. §§ 1110, and 1131 and 38 C.F.R. § 3.303(a) is not established. Similarly, as there is no notation of a psychiatric disorder during service, the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b), do not apply. See Savage v. Gober, 10 Vet. App. 488, 497 (1997) (continuity of symptomatology requires that the evidence either contemporaneous with service or otherwise show only that a condition was observed, that is, noted, during service, but does not require that such observation be recorded during service). Turning to establishing service connection for PTSD first diagnosed after service, the Board is required make a specific finding of fact as to whether the Veteran was engaged in combat and if so, whether the claimed stressor is related to such combat. Dizoglio v. Brown, 9 Vet. App. 163, 165 (1996). The regulations regarding PTSD differ from those governing service connection for other conditions because they require evidence of an in-service stressor. This also means that there must be more than a physician's opinion of nexus even if made many years after service. Other than the Veteran's statements, the record does not show the Veteran engaged in combat. As noted, the Veteran's unit served aboard ship or he was in countries other than Vietnam. His personnel records do not reveal any combat action. There is no evidence he was ever assigned to different duties or locations other than those associated with his unit of record. Furthermore, the Veteran asserts combat with the Vietnamese near the border with Cambodia from July to October 1974. Although not in the record, the Board notes that the United States and North Vietnam signed the Paris Peace Accords in January 1973; in March 1973, the last remaining American troops were withdrawn from Vietnam; and effective in August 1973, the U.S. Congress forbade any further U.S. military involvement in Vietnam (Case-Church Amendment). It is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. While the Veteran is competent to describe what he has personally experienced, competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In light of the historical record, the Veteran's unit history, service personnel records, and service treatment records, the Board finds the Veteran's statement about combat in Vietnam is not credible and the Board concludes that the Veteran did not engage in combat. As for the alleged noncombat, in-service stressor, namely, abusive behavior by superior officers, as the Board finds the Veteran not credible as to a combat stressor, and as there in nothing in the record to suggest that Veteran is now credible as to the noncombat stressor and not the combat stressor, the Board also finds th Veteran not credible as to any alleged noncombat stressor. In the absence of credible evidence of an in-service stressors, there is no possible association with service, and VA is not required to further develop the claim by affording the Veteran a VA examination or by obtaining a VA medical opinion under the duty to assist. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To the extent the Veteran is offering his own opinion that he has PTSD and it is related to service, there is a specific legal requirement that the diagnosis of posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance 38 C.F.R. § 4.125, that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM- IV). 38 C.F.R. § 3.304(f). In other words, posttraumatic stress disorder is not a simple medical condition that the Veteran as a lay person can diagnosis based on mere personal observation, that is, by visual observation or by any other of the senses. For this reason, the Veteran as a lay person is not to competent to declare that he has posttraumatic stress disorder or to offer an opinion that posttraumatic stress disorder is related to service as posttraumatic stress disorder is not a simple medical condition. And it has not been established that the Veteran is otherwise qualified through specialized education, training, or experience to state that he has posttraumatic stress disorder or to offer an opinion on a condition that is medical in nature. Therefore, the Board rejects the Veteran's statements, that is, the lay evidence, as competent evidence that the Veteran has posttraumatic stress disorder related to service. The Board acknowledges that two private psychiatrists have diagnosed PTSD but that diagnosis is dependent upon the Veteran's account of combat in Vietnam. A medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). The Board is not bound to accept a medical opinion that is based on history related by the Veteran, where that history is based upon inaccurate facts. Swann v. Brown, 5 Vet. App. 229, 233 (1993). While the Board cannot reject the medical opinion solely because it is based on a history related by the Veteran, the critical question is whether the history is credible in light of all the evidence. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of a veteran if rebutted by the overall weight of the evidence). As a diagnosis of post-traumatic stress disorder under 38 C.F.R. § 3.304(f) is predicated on credible of evidence of in-service stressor and as there is no such credible evidence in this case, the diagnosis of posttraumatic stress disorder cannot be linked to service. Since there is no credible evidence that the Veteran was in combat or of the alleged noncombat in-service stressor, the Board rejects the current diagnosis of posttraumatic stress disorder as related to service. While the amended regulation liberalizes the evidentiary standard for an in-service stressor, for the reasons already discussed, the Board does not find the Veteran credible about any alleged in-service stressor. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for posttraumatic stress disorder is denied. REMAND The record shows that the Veteran has mental illnesses diagnosed as major depression and generalized anxiety disorder. A medical diagnosis that differs from the claimed condition, in this case, posttraumatic stress disorder, does not necessarily represent a separate claim, and what constitutes a claim cannot be limited by a lay veteran's assertion of his condition in his application, but must be construed based on the reasonable expectations of the non-expert, claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). In accordance with the precedent opinion in Clemons, the claim of service connection for a psychiatric disorder other than posttraumatic stress disorder is raised by the record. Accordingly, the case is REMANDED for the following action: 1. Ensure VCAA compliance on the claim of service connection for a psychiatric disorder other than PTSD. 2. Afford the Veteran a VA psychiatric examination to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that any current psychiatric disorder other than posttraumatic stress disorder had onset in service. If, however, after a review of the record, an opinion is not possible without resort to speculation, the VA examiner is asked to clarify whether the requested opinion cannot be rendered because there are several potential factors, when the Veteran's military experience, is not more likely than any other to cause any current psychiatric disorder other than PTSD, and that the requested opinion is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. The Veteran's file must be made available to the VA examiner for review. 3. On completion of the above development, adjudicate the claim of service connection for a psychiatric disorder other than PTSD. If the benefit sought is denied, provided the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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). ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs