Citation Nr: 1114053 Decision Date: 04/08/11 Archive Date: 04/15/11 DOCKET NO. 99-09 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for psychiatric disability other than PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to January 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The RO first denied a claim for service connection for PTSD by a June 1985 rating decision. The March 1998 rating decision currently on appeal again denied the Veteran's claim for service connection for PTSD. In September 2003 the Board issued a decision reopening the Veteran's claim for service connection for PTSD, and remanding the reopened claim for further development. This case was again remanded by the Board in November 2005 and November 2009 in order that the Veteran could be provided hearings before Veterans Law Judges. Additional pertinent evidence was received by the RO prior to return of the Veteran's case to the Board in August 2010. In January 2011 the Veteran submitted a waiver of RO review of this evidence. Consequently, remand of the Veteran's PTSD claim for RO review is not indicated. The Board's decision on the claim for service connection for PTSD is set forth below. The matter of service connection for psychiatric disability other than PTSD is addressed in the remand following the order; that matter is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. FINDING OF FACT The Veteran's stressors are not credible and the Veteran does not meet the diagnostic criteria for PTSD. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1154(b), (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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, 3.326(a) (2010). The Veteran's claim was initially adjudicated before the enactment of the VCAA. The record reflects that the Veteran was provided the required notice with respect to his claim by means of a January 2002 letter from the agency of original jurisdiction. While this letter was issued subsequent to the rating decision on appeal, the Veteran's claim was readjudicated by subsequent Supplemental Statements of the Case (SSOC). See Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Despite any deficiency in the timing of the notice provided to the Veteran, the Board finds no prejudice to the Veteran in the processing of a final decision. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board notes that the Veteran has not been provided specific VCAA notice regarding VA's assignment of disability ratings and effective dates (in the event that the claim for service connection under consideration is granted). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case the absence of such notice is not shown to prejudice the Veteran. Because the Board herein denies the claim for service connection for PTSD, no disability rating or effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the Veteran under the notice requirements of Dingess. As to the duty to assist, VA has associated with the claims folder the Veteran's service treatment records and VA medical records. Copies of service unit records and command chronology reports relevant to the Veteran's service in Vietnam have been obtained. The Veteran's Social Security Administration (SSA) records have been obtained. The Veteran has been provided VA medical examinations. The Veteran has submitted medical statements in support of his claim. The Veteran has provided testimony at a hearing before a Decision Review Officer and at hearings before Veterans Law Judges. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). 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 in-service stressor occurred. 38 C.F.R. § 3.304(f). 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 in-service stressor. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b). As it has been shown that the Veteran did not engage in combat with the enemy, his lay testimony alone is not enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). To that end, the record must contain service records or other corroborative evidence that substantiates or verifies the Veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-96; Cohen, 10 Vet. App. at 142. Subsequent to the last adjudication of this claim, the regulations concerning PTSD were amended. Effective July 13, 2010, if a stressor claimed by a veteran is related to that 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 a 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 that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in- service stressor. "[F]ear 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 75 Fed. Reg. 39843 (Jul. 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3). Diagnoses of PTSD must be rendered in accordance with the diagnostic criteria for the condition set forth in the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.125 (noting that VA has adopted the nomenclature of the DSM- IV). Considering the claim for service connection in light of the above, the Board finds that the weight of the competent, persuasive medical evidence establishes that the Veteran does not meet the diagnostic criteria for PTSD, and that, therefore, the claim must be denied. In a letter received from the Veteran in June 1994, the Veteran reported that while in Vietnam he experienced direct firefights, rockets, mortars, landmines, and crossfire. He also stated that he saw men, women and children ripped and torn apart. In a March 1999 statement in support of claim, the Veteran stated that he was a machine gunner in Vietnam, that he was involved in many convoys between different military outposts, and that he endured rocket attacks, mortar attacks, and numerous firefights. The Veteran reported in a May 1999 letter that one time while on convoy his truck crossed a bridge and afterwards the bridge blew up when a truck behind his truck was on it. He also reported that the night after he slept in a hooch three men were attacked there and their throats were cut open. He stated that a friend bought a radio and went back to his hooch while they were under attack by enemy fire and his friend died. He could not remember the name of his friend. The Veteran reported that he was in Vietnam from December 26, 1969, to January 12, 1971, and that his DD Form 214 was incorrect in showing that he was only in Vietnam for five months and 24 days. At a May 1999 Decision Review Officer hearing, the Veteran related various in-service experiences, including seeing fellow soldiers getting killed and injured while out on convoy. He also reported being in a compound during a rocket and mortar attack. The Veteran testified that he was in Vietnam from December 26, 1969, to January 12, 1971, for a total of 12 months and 18 days. At Board hearings in April 2003 and April 2006 the Veteran again asserted that he was in Vietnam from December 26, 1969, to January 1971. He said that he was a machine gunner in convoys and that the convoys came under attack. He also reported that a friend, George, died when he was blown up in a mortar attack. The Veteran contended on a statement in support of claim dated in June 2008 that the information on his DD Form 214 is incorrect. He asserted that his birth date, the date he went to Vietnam, and his military occupational specialty (MOS) were wrong. The Veteran's DD Form 214 shows the following: a total of 5 months and 24 days of foreign service; the award of a National Defense Service Medal and a Vietnam Service Medal with one star; specialty title of salvage man; and a last assignment to SupCo, SupBn, 1st FSR/FLC, FMFPac. Psychiatric conditions were not diagnosed on the entrance examination of August 1968, and a history of psychiatric problems was not noted in the corresponding medical history report. While stationed in California in August 1969, the Veteran underwent a psychiatric evaluation. It was noted that he had been experiencing personal and military problems, and the examiner ultimately found that there were no significant emotional issues. A consult was obtained in September 1970. The examiner found that no formal psychiatric diagnosis was warranted, and found some covert aggressive trait. The separation examination of January 1971 was negative for psychiatric conditions. VA records reflect the reported diagnosis of passive-aggressive personality disorder on an evaluation conducted in April 1985. Records show that examiners ruled out PTSD on evaluations conducted in August 1991 and October 1991. The Veteran's participation in PTSD therapy appears in VA records dated in 1994. The Veteran submitted letters signed by VA medical personnel dated in September 1997, May 1999, January 2005, and September 2009. These letters all stated that the Veteran had PTSD since his Vietnam service. None of the letters identified any stressors upon which the diagnoses of PTSD were based. A VA examination was conducted in November 1997. The Veteran reported that he was in Vietnam from December 1968 to January 1971. The Veteran told the examiner that his MOS was machine gunner and that he was in firefights while traveling on convoys as a machine gunner. The examiner noted that this meant the Veteran had been exposed to a lot of combat during his time in Vietnam. The examiner diagnosed PTSD. A panel of two examiners conducted a VA examination in January 2000. The examiners diagnosed PTSD with depressive features, alcohol dependence in early remission, and poly drug dependence in remission. The VA examiners provided an addendum to the January 2000 report in August 2000. Both examiners reviewed the unit diaries and other pertinent service information, and they concluded that the Veteran had not been completely truthful in his presentation of the times and events that occurred during his service. After conducting a second review of the record, the examiners concluded that the diagnosis of PTSD was not well supported and that there appeared to be an absence of stressors and an absence of significant well-documented symptoms. The examiners then diagnosed alcohol dependence in possible early remission, poly drug dependence in possible early remission, and mixed personality disorder with schizoid and impulse control features. The Veteran was afforded a VA examination in March 2005, but he became angry and left before the examination was completed. The examiner stated that he did not believe much of what the Veteran told him and he considered the Veteran to be a noncredbile witness. The examiner thought that the Veteran's major problem was a personality disorder. The examiner stated that he did not hear stressors sufficient to cause PTSD and he was unable to elicit symptoms of PTSD. The Board does not find the statements of the Veteran that he served in Vietnam for more than 12 months and that he was machine gunner on convoys to be credible. The Board also does not find any of the Veteran's claimed stressors to be credible. Although the Veteran has made numerous assertions that his DD Form 214 is inaccurate in regard to his length of time in Vietnam and with regard to his MOS, a review of the Veteran's service personnel records supports the accuracy of the information on the DD Form 214. Embarkation slips indicate that the Veteran flew to Danang, Vietnam, on July 24, 1970, and that he left Danang, Vietnam on January 16, 2001. Several other documents in the personnel records also verify that the Veteran was in Vietnam between from July 25, 1970, to January 16, 1971. This supports the information on the Veteran's DD Form 214 that the Veteran only spent five months and 24 days on foreign service. The service personnel records also confirm that the Veteran's primary duty was reclamation and salvage man and that he was assigned to a Supply Company in a Supply Battalion while in Vietnam. A January 11, 1971, Office of the Staff Judge Advocate memorandum reveals a recommendation that the Veteran be discharged on the basis of inaptitude. The RO requested pertinent records from the Department of the Navy for the purpose of verifying the Veteran's reported stressors. In a May 1999 response letter, the Department of the Navy noted that a review of the information provided disclosed it was insufficient in order to conduct a meaningful search due to the lack of specific information from the Veteran. The deaths of three servicemen and a friend could not be verified through the unit diaries without knowing their unit assignments. A search of the diaries for the Veteran's unit, dated from July 25, 1970, to January 16, 1971, was negative for any soldiers wounded or killed in action. Command chronology reports regarding the Veteran's Company, dated from July 25, 1970, to January 16, 1971, do not verify any of the Veteran's reported stressors. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In this case the Board notes that the medical evidence of record is conflicting as to whether the Veteran actually experiences PTSD or not. Although the record contains numerous diagnoses of PTSD, almost none of these diagnoses are related to any particular stressors. As such those diagnoses are insufficient for VA purposes. See 38 C.F.R. § 3.304. Although a November 1997 VA examiner did provide a diagnosis of PTSD based on the Veteran's experiencing combat as a machine gunner on convoys, that stressor has been shown to be false by the evidence of record. Consequently, the Board finds that the diagnoses of PTSD contained in the record, including the November 1997 diagnosis, are of no probative value. The Board finds that the August 2000 and March 2005 VA examiner opinions to be of great probative value. These opinions are based on a thorough review of the Veteran's medical and military records. The August 2000 opinion was also based on an extensive interview with the Veteran held in January 2000. These examiners opined that the Veteran was not truthful and they did not find the Veteran to have PTSD due to his military service. In short, the most persuasive medical opinion evidence weighs against the existence of a current diagnosis, and ultimately, the claim. For all the foregoing reasons, the Board finds that the claim for service connection for PTSD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for PTSD is denied. REMAND In light of the current record and recent United States Court of Appeals for Veterans Claims (Court) precedent, the Board finds that further RO action on this matter is warranted. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the Board erred in not considering the scope of a Veteran's claim for service connection for PTSD as including any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, psychiatric diagnoses of record, and other information. In this case, although the RO only adjudicated a claim for service connection for PTSD (which, as indicated above, has been denied), the record reflects psychiatric diagnosis of record other than PTSD-specifically, major depression, bipolar disorder and schizoaffective disorder. Thus, consistent with Clemons, the record raises the matter of the Veteran's entitlement to service connection for a psychiatric disability other than PTSD. To avoid any prejudice to the Veteran, a remand for RO consideration of this matter, in the first instance, is warranted. See Bernard v. Brown, 3 Vet. App. 384, 393 (1993). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2009). The Veteran should be provided a VA examination to determine all current psychiatric disability other than PTSD and a medical opinion should be requested to determine if any psychiatric disability found is related to the Veteran's service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's updated VA treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran notice compliant with the VCAA with respect to the claim for service connection for a psychiatric disorder other than PTSD. 2. Obtain copies of the Veteran's VA treatment records dated from March 2005 to present. 3. After completing the above actions, afford the Veteran a VA psychiatric examination. The examiner should review the Veteran's medical records and provide diagnoses of all psychiatric disability present other than PTSD. The examiner should provide an opinion as to whether there is a 50 percent or greater probability that the Veteran has any current psychiatric disability, other than PTSD, that is related to the Veteran's military service. Reasons and bases for all opinions should be provided. 4. The RO should adjudicate the matter of service connection for psychiatric disability other than PTSD in light of all pertinent evidence and legal authority. 5. If the benefit sought on appeal is denied, the RO must furnish to the Veteran an appropriate SSOC that includes clear reasons and bases for all determinations, and afford him an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant 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 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). _________________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs