Citation Nr: 1120265 Decision Date: 05/25/11 Archive Date: 06/06/11 DOCKET NO. 07-28 099A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew Mack INTRODUCTION The Veteran served on active duty from August 1960 to August 1962. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2007 rating decision in which the RO, inter alia, denied service connection for PTSD. In July 2007, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2007. In April 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. During the hearing, the Veteran's representative submitted additional evidence to the Board, along with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2010). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. While the Veteran has been diagnosed with service-related PTSD, he did not engage in combat with the enemy, and no alleged stressor is related to either combat or fear of hostile military or terrorist activity. 3. There is no credible evidence that any claimed in-service stressor occurred, nor does the record present a basis for any further development in this regard. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 1131, 4.125(a), 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a January 2007 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA; this letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The July 2007 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the January 2007 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service personnel and treatment records, VA treatment records, articles and information regarding the aircraft carrier on which the Veteran served, and the report of the U. S. Armed Services Center for Unit Records Research (CURR) (now the U.S. Army and Joint Service Records Research Center (JSRRC)) regarding the Veteran's claimed stressors. Also of record and considered in connection with the appeal is the transcript of the Veteran's April 2011 Board hearing, along with various written statements provided by the Veteran, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the Veteran's claim prior to appellate consideration is required. The Board notes that the Veteran attempted to obtain Social Security Administration (SSA) records, but, in January 2011, SSA responded that any SSA medical records had been destroyed, and that further efforts to obtain them would be futile. The Board also acknowledges that no report of a VA examination in connection with the Veteran's PTSD claim is of record. However, because, as explained below, this case turns on the question of whether there is credible supporting evidence that the Veteran's claimed in-service stressors occurred-not a question of medical diagnosis, or one requiring medical expertise-remand for a VA examination is not warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran has been diagnosed and assessed with PTSD, as initially reflected in a September 2007 VA outpatient treatment note by a nurse practitioner, and noted in subsequent VA treatment notes. This diagnosis notwithstanding, the Board finds that this claim must nonetheless fail because another essential criterion for establishing service connection for PTSD-credible evidence that any claimed in-service stressor(s) actually occurred-has not been met. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a Veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). Participation in combat, a determination that is to be made on a case-by-case basis, requires that a Veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999); Moran v. Principi, 17 Vet. App. 149 (2003). See also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). If, however, the alleged stressor is not combat related, then the Veteran's lay testimony, alone, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau, 9 Vet. App. at 395. See also Zarycki, 6 Vet. App. at 98; Doran v. Brown, 6 Vet. App. 283, 289-290 (1994). The Board notes that, on July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor, where such stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity the claimed stressor and is consistent with the places, types, and circumstances of the veteran's service. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The Veteran has not specifically alleged, and the evidence does not suggest, that the Veteran engaged in combat with the enemy, or that any of his alleged stressors were related to either combat or fear of hostile military or terrorist activity. Notably, the Veteran's DD-214 does not indicate that he received any combat-related awards or medals, such as the Combat Infantryman Badge, and there is no indication that the places, types, and circumstances of the Veteran's service involved hostile military or terrorist activity. As the Veteran is not shown to have served in combat, he cannot establish the occurrence of a stressor on the basis of his assertions, alone; rather, credible evidence corroborating the occurrence of at least one of his claimed in-service stressors is required. In his written statements, and during the April 2011 Board hearing, the Veteran asserted that, while serving aboard the USS Kitty Hawk, he experienced two stressors. The first is that a jet crash landed on the deck, exploded, and went over the side, killing the pilot, whom the Veteran identified as [redacted]. The Veteran asserted that he had to help fight the fire and assisted in the retrieval of the wreckage once helicopters pulled it out of the water, and that he saw the body of the pilot. The second stressor is that, while performing night operations, the Veteran saw a crew member, identified by the Veteran as [redacted], killed by walking into the propeller of a plane. The Veteran asserted that he was no more than 100 feet from the incident and had to help with the cleanup effort. Initially, as reflected in August 2008 statements, the Veteran asserted that the death of [redacted] occurred in approximately July 1961, and that the death of [redacted] occurred in November 1962. As noted in a supplemental SOC (SSOC), issued by the RO in December 2008, and as reflected in the Veteran's service personnel records, July 1961 is prior to the Veteran's service on the USS Kitty Hawk, and November 1962 is subsequent to his period of service. However, as reflected in September 2009 and March 2011 written statements, as well as in his testimony during the April 2011 Board hearing, the Veteran revised the asserted dates of his stressors to spring or summer of 1962. Also, the September 2007 VA treatment note that first indicated a diagnosis of PTSD also indicates that the Veteran reported serving on an air force carrier during the Cuban Missile Crisis, and serving in Vietnam. The Veteran was described in the treatment note as a "Veteran from the Cuban Missile Crisis and early Vietnam Era who has symptoms that meet the criteria for [PTSD]." Also, during the April 2011 Board hearing, the Veteran reported that his stressors occurred during the Cuban Missile Crisis, and that he was in Cuba at that time, when the perception was that the United States was going to be attacked. The Veteran's service personnel records confirm that he served on the USS Kitty Hawk from August 1, 1961, until he was released from active duty on August 17, 1962. The Veteran's DD Form 214 (Report of Transfer or Discharge) indicates that he served as an Airman. In February 2009, the Veteran submitted several documents, most of which contain general information about the USS Kitty Hawk, including that it was deployed during the Cuban Missile Crisis. The Veteran included with these documents a photocopy of a picture, and printed over the picture was a quoted bible passage, the phrase "IN MEMORIAM," and, below the phrase, the listed names of "LT (jg) [redacted], USN," and "[redacted], AA, USN." This photocopy contains no further words, dates, or other information. Following receipt of the RO's request to attempt to verify the Veteran's claimed stressors, CURR responded that it had reviewed the ship's history submitted by the USS Kitty Hawk, covering the period of January 1, 1961, to December 31, 1968. Such history documented that, from December 1, 1961, to May 5, 1962, the USS Kitty Hawk was located at the San Francisco, California, Naval Shipyard, undergoing repairs. Deck logs submitted by the USS Kitty Hawk from December 1, 1961, to January 31, 1962, document shipyard repairs and do not document flight operations while the ship was under repair. CURR also stated that it reviewed the 1962 Department of Defense casualty data available, and were unable to locate a Lieutenant Junior Grade [redacted] or Petty Officer [redacted] listed as a casualty. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim must be denied on the basis that there is no credible evidence corroborating the occurrence of any of the Veteran's claimed stressors. None of the objective evidence of record supports the Veteran's assertions that he witnessed the deaths of [redacted] and [redacted]. Rather, the objective evidence of record tends to undermine the credibility of the Veteran's assertions, as CURR stated that neither Lieutenant Junior Grade [redacted] nor Petty Officer [redacted] was listed as a casualty in the 1962 Department of Defense casualty data. The Board notes the photocopy of a picture with the phrase "IN MEMORIAM," and below the phrase, the listed names of "LT (jg) [redacted], USN," and "[redacted], AA, USN." However, this photocopy contains no pertinent words, dates, or other information indicating that such men died on the USS Kitty Hawk during the Veteran's period of service on it. Thus, the Board finds that this photograph does not constitute evidence corroborating the occurrence of the Veteran's claimed stressors. As for any other alleged stressors, the Board notes the September 2007 VA treatment note that first indicated a diagnosis of PTSD, which describes the Veteran as a "Veteran from the Cuban Missile Crisis and early Vietnam Era who has symptoms that meet the criteria for [PTSD]," and that, during the April 2011 Board hearing, the Veteran reported that his stressors occurred in Cuba during the Cuban Missile Crisis, when the perception was that the United States was going to be attacked. While not explicitly identified by the Veteran as in-service stressful events, such alleged service in Vietnam during the Vietnam era, and service during the Cuban Missile Crisis, was noted by the VA nurse practitioner in diagnosing PTSD in September 2007. Also, the Veteran's representative, during the April 2011 hearing, asked the Veteran whether, when he was involved in the Cuban Missile Crisis, "the actual threat and perception of this attack, and this terroristic attack, was quite prevalent at that time." The Veteran responded that it was, implying that the Veteran's service in Cuba during the Cuban Missile Crisis might have been an in-service stressful event. However, the record reflects that the Veteran did not serve in Vietnam or Cuba, and that his separation from service in August 1962 pre-dates both the Cuban Missile Crisis in October 1962, and the time period recognized by VA as the Vietnam era for veterans not serving in the Republic of Vietnam. See 38 U.S.C.A. § 102(29). Thus, there is no verified or verifiable in-service stressor to support the claim, nor does the record present a basis for any further development in this regard. As there is no credible supporting evidence that the claimed in-service stressors occurred-an essential criterion for establishing service connection for PTSD-the Veteran cannot meet the requirements of 38 C.F.R. § 3.304(f). Hence, discussion of the remaining criteria for service connection for PTSD set forth in the governing regulation is unnecessary. 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. However, as there is no credible supporting evidence that any claimed in-service stressor occurred, 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. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs