Citation Nr: 1237985 Decision Date: 11/06/12 Archive Date: 11/16/12 DOCKET NO. 07-24 105A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1969. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO). FINDING OF FACT The preponderance of the evidence does not show that the Veteran's posttraumatic stress disorder (PTSD) is related to active military service. CONCLUSION OF LAW PTSD was not incurred in active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act of 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's November 2005 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the Dingess requirements, the RO's March 2006 letter provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, with these letters, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. In addition, the duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his identified VA and private medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In compliance with the Board's December 2010 remand, VA outpatient treatment records dated from March 2006 through November 2010 have been obtained and associated with the claims file. The RO has also requested the Veteran to provide further details of his alleged stressors in service and the Veteran submitted a January 2011 written statement in response. Pursuant to the Board's December 2010 remand, VA has also provided the Veteran with a VA psychiatric examination to determine the etiology of any current psychiatric disorder, given the recent regulatory amendments. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). This medical examination was based upon a complete review of the Veteran's claims file, examination of the Veteran, and with consideration of the Veteran's lay statements, and the VA examiner provided a written rationale for the conclusion reached. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Under these circumstances, the Board finds that there has been substantial compliance with its December 2010 remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, 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 (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). A diagnosis of a mental disorder, including PTSD, must conform to the criteria of DSM-IV. 38 C.F.R. § 4.125 (2012). 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 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)(1). Effective July 13, 2010, VA amended the regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, 38 C.F.R. § 3.304(f) was amended to redesignate former paragraphs (f) (3) and (f) (4) as paragraphs (f) (4) and (f) (5), respectively, and by adding a new paragraph (f) (3) that reads: (f)(3) If a stressor claimed by a Veteran is related to the 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 the 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 the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear 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. The primary effect of the amendment of 38 C.F.R. § 3.304(f)(3) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." In place of corroborating reported stressors, a medical opinion must instead be obtained from a VA or VA-contracted psychiatrist or psychologist. Historically, the Veteran served on active duty in the Army from March 1967 to March 1969. His service personnel records reflect that the Veteran underwent basic combat training and combat support training from March 1967 to July 1967. Thereafter, he was deployed to Europe from August 1967 to July 1968, and served in an artillery unit. His DD Form 214 shows that his military occupation specialty was a Wireman. The Veteran's service treatment records, to include his December 1968 separation examination report, are silent as to any complaints or findings of any psychiatric abnormalities. In a December 2004 VA treatment report shows a diagnosis of fatigue likely due to PTSD and depression. In a June 2005 VA treatment report, the Veteran and his wife reported frequent nightmares, hypervigilance, that flashbacks that were related to his military service. The examiner noted that the Veteran was deployed to the Russian border during the Vietnam War, experienced border skirmishes, apparently wounded in "combat," and was around lots of artillery firings, and served on casualty burial detail. The assessment was "anxiety/possible PTSD." The VA examiner noted that the Veteran appeared to have had chronic PTSD symptoms per discussion and referred the Veteran to a PTSD clinic. VA psychiatry reports dated in June and September 2005 stated that the Veteran, who was deployed to the Russian border during the Vietnam War, experienced border skirmishes, wounded apparently in "combat," and served on casualty burial detail, now had persistent anxiety, agoraphobia and hypervigilance issues that were anxiety related. VA treatment reports dated from June 2005 through May 2010 consistently show diagnoses of Axis I PTSD. A July 2005 VA mental health consultation report noted a history of head injury while in service. The Veteran related that he was thought to be dead and awakened in morgue. The assessment was major depression. VA mental health reports dated in April 2009 and February 2010 stated that the Veteran was in combat in Vietnam and had a traumatic brain injury (TBI), thought to be dead and awakened in morgue. The Veteran reported memory problems related to the events around the TBI. The Veteran was afforded a VA examination in May 2011. The VA examiner stated that the Veteran's claims file was reviewed. The Veteran related that he had no emotional problems and received no treatment for mental illness during his childhood and adolescence. He reported that he served in combat in Germany and served in the 2nd of 18th Artillery and received head injuries but did not receive wounds. He described that while on patrol near the Russian border, he was knocked unconscious, thought to be dead and awakened in the morgue. He was hospitalized and treated for head injury. The Veteran reported that since military discharge, he experienced repeated flashbacks triggered by loud noises, fireworks and so on. He also experienced nightmares of being attacked and being in morgue two to three times per week and that he might attack anyone if awakened suddenly. The VA examiner noted a diagnosis of PTSD. The examiner further noted that the Veteran's combat experience, to include head injury and awakening in morgue was the cause of PTSD and that his PTSD was related to his fear of hostile military or terrorist activity. During the June 2012 hearing before the Board, the Veteran clarified that he did not serve in combat and did not participate in any scrimmages during his military service. The Veteran testified that he had two head injuries, first one en route to his deployment to Germany in August 1967 and another one while on patrol duty near the Russian border in 1968. He currently had memory problems and could not recall the details of the incidents. He also reported that he served on casualty burial detail duty, which caused a great deal of emotion distress to him so that he could not bear it and had to be transferred to a different duty in 1968. Upon consideration of all of the evidence of record, the Board finds that the preponderance of the evidence does not demonstrate that the Veteran's PTSD is related to his active duty service. In this case, the Veteran's inconsistencies in reporting in-service stressors outweigh his credibility. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that credibility may be impeached by a showing of inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The first evidence of record in June 2005 noting a diagnosis of PTSD listed various in-service stressors alleged by the Veteran associated with such diagnosis, which included experiencing border skirmishes during his deployment to the Russian border, having been wounded in "combat," and serving on casualty burial detail. VA treatment reports dated in June and September 2005 continued to diagnose PTSD based on the same in-service stressors that have been reported by the Veteran. However, in the July 2005 VA mental health consultation report, the Veteran presented new stressor of a traumatic head injury in service. He also reported an incident that he was mistakenly thought to be dead and ended up awakening in morgue. Further, April 2009 and February 2010 VA mental health reports noted his reports of serving "in combat" in Vietnam. However, at his June 2012 Board hearing, the Veteran specifically denied serving "in combat" or participating in any scrimmages during his military service. Instead, he testified that he had two separate head injuries in service. Based on the foregoing, the Board concludes that the Veteran's statements regarding his in-service stressors are not credible. As such, the evidence does not show that the Veteran's claimed stressors relate to fear of hostile military activity, and the Board is unable to determine whether the Veteran's lay testimony alone is sufficient to establish his in-service stressors. See 38 C.F.R. § 3.304(f)(3). The Board recognizes that VA psychiatric treatment records consistently showed diagnoses of Axis I PTSD based on the Veteran's reports of serving on patrol duty near the Russian border and sustaining head injuries, as well as exposure to combat situations. Additionally, the May 2011 VA examiner opined that the Veteran's military experience, to include head injury and awakening in morgue, was the cause of PTSD and that the Veteran's PTSD was relate to his fear or hostile military or terrorist activity. However, the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Swann v. Brown, 5 Vet. App. 229, 232 (1993). Here, to the extent that the VA psychiatric treatment and the May 2011 VA examination reports related the Veteran's PTSD to the claimed stressors, the Board finds that these opinions to be of little probative value due to the fact that they were based on facts provided by the Veteran that have been found to be not reliable. See Reonal, 5 Vet. App. at 460. Accordingly, service connection for PTSD is not warranted. 38 C.F.R. § 3.304(f)(3). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER Service connection for PTSD is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs