Citation Nr: 1301924	
Decision Date: 01/17/13    Archive Date: 01/23/13

DOCKET NO.  11-11 865A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Haddock, Associate Counsel


INTRODUCTION

The Veteran served as a member of the Special Philippine Scouts from July 1946 to April 1949.  

The Veteran also had service with a civilian guerilla unit under the authority of the Philippine Army from October 1943 to October 1945; this period of service is not recognized service by the United States. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  

The Board notes that it has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's PTSD is not shown to have been incurred in, aggravated by, or causally related to his period of recognized active service with the Special Philippine Scouts.


CONCLUSION OF LAW

Service connection for PTSD is not warranted.  38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has reviewed all of the evidence in the claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. 

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

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) (2012). 

Establishment of 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).

Veteran status is the first element required for a claim for disability benefits.  D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000).  "Veteran" means a person who served in the active military, naval or air service and who was discharged or released under conditions other than dishonorable.  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  "Veteran of any war" means any Veteran who served in the active military, naval or air service during a period of war.  38 C.F.R. § 3.1(e).

The Board notes that the appellant in this case has already been established as a Veteran based on his verified recognized service as a Philippine Scout from July 1946 to April 1949.  This service was verified by the National Personnel Records Center in October 2009.  

The Veteran contends that he is entitled to service connection for PTSD that he claims is a result of his service with a civilian guerilla unit from October 1943 to October 1945, not the above.  

Specifically he has reported stressors including an event in October 1944 when his unit barracks were attacked by Japanese soldiers and his sergeant died in his arms and another event in November 1944 that occurred while he was on a survellience mission with two members of his unit and while resting, one of the members of his unit and a civilian were attacked and severely injured by Japanese soldiers.  The Veteran claims that these events have resulted in his current PTSD.  

A review of the record shows that the Veteran has a current diagnosis of PTSD related to combat experiences from World War II.  The record also shows that the Veteran receives ongoing treatment at the San Jose, California VA clinic and the San Jose, California Veteran's Center for his PTSD.

The Board finds that while the Veteran has a current diagnosis of PTSD, that appears to have been caused by legitimate combat stressor events, the question that remains for consideration in this case is whether the Veteran's diagnosis of PTSD is based upon confirmed stressors from his verified period of active service from July 1946 to April 1949, not before that time.

A review of the record shows that the Veteran has not reported that any stressor events occurred during the period from July 1946 to April 1949, which either caused or contributed to his diagnosis of PTSD.  In fact, the Veteran's statements have made it clear that the stressors are not from his verified period of active service from July 1946 to April 1949, but from service with a civilian guerilla unit from October 1943 to October 1945, providing highly probative factual evidence against his own claim, under the law that currently exists.  

While the Board does not doubt the validity (or the honorable service) of the Veteran's reported stressors that took place during his period of unverified service from October 1943 to October 1945 while he was serving with a civilian guerilla unit, these events fall outside of his period of verified recognized service with the Special Philippine Scouts, and can, therefore, not be used as a basis of establishing entitlement to service connection.  

In light of the above, the Board finds that the preponderance of the evidence is against the claim.  In reaching this decision, the Board has considered the doctrine of reasonable doubt.  However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied.  38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in January 2010 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content.

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

In this case, a VA examination is not required because the competent and credible evidence fails to show that the Veteran's diagnosis of PTSD is related to his verified recognized service with the Special Philippine Scouts from July 1946 to April 1949.  As noted above, the stressors reported by the Veteran involve events that took place during a period of unverified and unrecognized service with a civilian guerilla unit from October 1943 to October 1945.  In this case, the Veteran's own statements provide evidence against this claim.  Therefore, the evidence of record does not enough to trigger VA's duty to provide an examination.

Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.

Based on the above, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER

Service connection for PTSD is denied. 


____________________________________________
JOHN J. CROWLEY 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs