Citation Nr: 1301276 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 06-22 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to February 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO concluded that new and material evidence had not been submitted to reopen the claim for service connection for PTSD. In August 2010 the Board reopened and remanded the claim for further development. Thereafter, in April 2012, the Board again remanded this claim for still further development. All requested development has been completed and the claim is once again before the Board. FINDINGS OF FACT 1. There is no competent and credible evidence that corroborates the occurrence of the Veteran's alleged in-service stressors. 2. The preponderance of the evidence is against a finding that Veteran has a current psychiatric disability as a result of his active military service. CONCLUSION OF LAW The criteria for establishing service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (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. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The 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 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; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, letters dated in April 2002, May 2006, and May 2012 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection for PTSD, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. These letters also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. The case was last readjudicated in November 2012. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA treatment records and examination reports, and private treatment records. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included obtaining VA treatment records since July 2010, and additional attempts to verify the Veteran's claimed stressors. If the Veteran's stressors were verified, the Veteran was to then be scheduled for a VA examination to determine the nature and etiology of his PTSD. In response, the RO obtained current VA treatment records through September 2012, which have been associated with the Veteran's virtual claims file. The additional development regarding his claimed PTSD stressors was also conducted. However, as the stressor was not verified, no VA examination was necessary. Thus, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and 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. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). If the Veteran did not serve in combat, or if the claimed stressor is not related to combat, there must be independent evidence to corroborate a veteran's statement as to the occurrence of the claimed stressor. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The Veteran's testimony alone cannot establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The Board notes that effective July 13, 2010, 38 C.F.R. § 3.304(f) was amended as follows. 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 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 that veteran's service, the 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 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010). However, under the facts of this case the regulatory change does not impact the outcome of the appeal. Id. The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran claims entitlement to service connection for PTSD. As previously discussed in the August 2010 and April 2012 Board remands, when the Veteran first filed a claim for service connection for PTSD in August 1998, he described an event that occurred between February and March 1968 during basic training at Fort Dix, New Jersey during which he was crawling under barbed wire on a night infiltration training course when he observed men from Company E or Company C seem to raise up off the ground. He stated that after the training exercise he learned that a pin on the tripod broke, causing the barrel to drop during firing and to injure men. He also stated that, while driving during a training exercise, he ran into a severe snow storm. The vehicle in front of him, an armored personnel carrier, turned in the wrong direction and went over the cliff, killing all personnel in the vehicle. When the Veteran filed his present claim for service connection for PTSD in April 2001, he stated that during this exercise during basic training, the gun dropped and caused live rounds to injure men of Company E and kill approximately two men. He added that he witnessed two bodies lift off the ground and come down hard to the ground. He also described the snow storm and the vehicle going over this cliff, but stated there were two vehicles, not one as he previously reported. Service personnel records indicate that the Veteran was assigned to Company T, 2nd Training Regiment, Fort Dix, New Jersey for basic training. The RO submitted requests for information in September 2002 and May 2003, for a search to be conducted of the morning reports of Company T, 2nd Training Regiment, Fort Dix, New Jersey from February to March 1965. The request sought remarks about two people being killed in a training accident. The January 2004 response was that the morning reports were searched, but no remarks were located. The Veteran's service treatment records are completely silent regarding any complaints, treatment, or diagnoses concerning a psychiatric disorder. Additionally, his April 1967 separation examination did not indicate any psychiatric disorders. Following service, the Veteran was afforded a VA examination in May 1997. At that time, he did not mention any of the alleged stressors he attributes to his PTSD. Instead, the VA examiner noted the Veteran was injured by a psychiatric patient who was armed with knives while he was working as a security guard. Following a psychological evaluation, the examiner determined the Veteran is somewhat depressed and has probably been more depressed at other points in his life, but this depression appears to be somewhat chronic. Additionally, the examiner stated the more problematic issue for the Veteran is the PTSD that is in relation to the incident with the psychiatric patient. The examiner noted the Veteran has sleep problems, nightmares that affect his ability to be around other people. The examiner provided diagnoses of PTSD and dysthymia. Thereafter, a March 1998 letter from a VA Chief of Medical Administration Service noted that the Veteran was seen at the New York VA Medical Center and that the medical records noted that the Veteran has PTSD, for which he takes psychoactive medications, and that the PTSD derives from witnessing very serious accidents while in service and seeing multiple casualties. The letter also notes that symptoms such as nightmares, flashbacks, intrusive thoughts, depression, rage, panic, and isolation were mentioned in the medical evidence. However, this letter does not specifically identify the stressors alleged by the Veteran. In a subsequent April 2001 letter by the same individual, he again reported information contained in a medical report. The Veteran's claimed stressors are listed but, again, no rationale as to why the Veteran's PTSD is due to his military service is provided. In September 1998, the Veteran was again scheduled for a VA compensation examination for his PTSD; however, he failed to report. The Board notes that the claims file contains VA treatment records, dating from June 1998 to September 2012. These VA treatment records show the Veteran has received a diagnosis of PTSD, and that he has been receiving treatment, including medication, for his psychiatric symptoms for PTSD. However, none of these treatment records provide an etiological opinion with sufficient rationale attributing the Veteran's PTSD to his military service. An August 2009 psychosocial history and assessment note shows the Veteran denied having any psychiatric history, aside from indicating he was diagnosed with PTSD in 1997 because he saw dead bodies. The Veteran also reported that he was not in combat, but stated he was a driver for armored personnel carriers. In August 2010, the Board remanded this claim in an attempt to corroborate the Veteran's alleged PTSD stressors. As requested, in August 2010, the AMC submitted a request for a search to be conducted of the morning reports of Company E, 2nd Training Regiment, Fort Dix, New Jersey from February to March 1965. The request sought remarks about two people being killed and others injured during a machine gun live fire exercise. The response was that the morning reports of Company E were searched, but no remarks were located of the incident. Thereafter, in the April 2012 remand, the Board noted that the AMC/RO has not requested a search of the morning reports for Company C, the company of the men who the Veteran alleged were injured in the basic training incident when he first described this event in 1998. In May and July 2012, this information was requested from the National Personnel Records Center (NPRC) and Joint Services Records and Research Center (JSRRC) were both contacted in an attempt to obtain to verify the Veteran's stressors. However, in October 2012, the AMC issued a Memorandum containing a formal finding of unavailability regarding the lack of information corroborating a stressor associated with the Veteran's claim for PTSD because both facilities returned negative responses. The Board has considered the Veteran's alleged stressors, which he claims are the cause of his current PTSD. However, there is simply no evidence to support the Veteran's assertions of injuries or deaths during a training incident, or that an armored personnel carrier went over the edge of a cliff, other than his lay statements. Moreover, there is no evidence that the Veteran served in combat or a combat zone; in fact, he has specifically denied serving in combat, as indicated in the August 2009 VA treatment record, and his service records indicate he did not take part in any campaigns. His service was limited to the United States and Europe. The Veteran did not serve in Vietnam, as he already conceded. Regarding the claimed in-service accident, the Board finds the Veteran's statements to be lacking credibility as the Veteran has given inconsistent statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility). As stated, when he initially filed for service connection in 1998, he described only one vehicle going over the cliff during a snow storm. However, in 2001, he stated that it was two vehicles. Given these inconsistent statements, the Board finds the Veteran's credibility to be lacking concerning the occurrence of the claimed in-service stressors. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."). As such, the Veteran's statements do not constitute credible evidence in support of his claim for PTSD. Indeed, both stressors reported are the type that would likely be mentioned in official military reports and the negative findings of such events through official sources further weighs against the claim. The Veteran was afforded the opportunity to identify evidence from other sources that may be beneficial to his claim for PTSD. VA has repeated attempted to verify the stressors as described by the Veteran, and has obtained all available records identified by the Veteran. There is simply no indication that further development would help to substantiate the claim. The Board is aware of the decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), in which the U.S. Court of Appeals for Veterans Claims (Court) found that the Board erred in not considering the scope of the 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, and the other information of record (in that case, diagnoses of anxiety disorder and schizoid disorder). The Veteran has been diagnosed with PTSD and dysthymia, by the May 1997 VA examiner. However, the examiner specifically attributed the Veteran's psychiatric disorder to his post-service assault by a psychiatric patient while he was a security guard. The Board has afforded this opinion high probative weight as it was made after a review of the relevant evidence and examination by a licensed clinical psychologist. A clear rationale was provided for the opinion. Moreover, the Board notes that no psychiatric disability was diagnosed or treated during service or for years afterwards. As such, the medical evidence is against a finding that the Veteran has a current psychiatric disability as a result of his military service. To the extent that the Veteran reports that he has a psychiatric disability as a result of service, he is not shown to possess any specialized training in the medical field to provide a competent medical opinion on this point. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In fact, the May 1997 VA examination was conducted to in order to obtain a medical opinion to address whether the Veteran has a psychiatric disability as a result of his service. The Board finds the medical evidence on this point to be of greater probative value than the Veteran's lay contentions, as the etiology of a psychiatric disability requires medical expertise to determine. In sum, the Board finds the Veteran's statements regarding in-service stressors to be lacking credibility and unsupported by other evidence, and that the preponderance of the evidence indicates that the Veteran does not have a current psychiatric disability related to his active service. Accordingly, service connection for PTSD is not warranted on any basis. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER The claim of entitlement to service connection for PTSD is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs