Citation Nr: 1311063 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 02-01 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his friend ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1971 to March 1973, and from July 1981 to February 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2001 rating decision by the Houston, Texas Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for PTSD. In August 2008 a Travel Board hearing was held before a Veteran's Law Judge who is no longer with the Board (and remanded this matter in October 2008 and November 2009). In March 2012 the Veteran was afforded the opportunity for another hearing before a Veterans Law Judge who would decide his case; he did not respond to the offer. The case has been reassigned to the undersigned. The issue on appeal has been characterized, developed, and adjudicated by the RO (and in Board remands prior to June 2012) as service connection for the limited psychiatric entity of PTSD. Because the record shows psychiatric diagnoses other than PTSD (major depression/depression), and in light of the U.S. Court of Appeals for Veterans Claims intervening decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue was recharacterized in the June 2012 Board remand to encompass all psychiatric diagnoses shown. In June 2012, the Board remanded the case to the RO for adjudication in the first instance of the issue of service connection for a psychiatric disorder other than PTSD. FINDINGS OF FACT 1. The Veteran is not shown to have engaged in combat with the enemy; his alleged fear of hostile military or terrorist activity is not consistent with the places, types, and circumstances of his service; there is no credible supporting evidence that a claimed in-service stressor occurred; his diagnosis of PTSD is not based on a stressor event corroborated by credible supporting evidence. 2. The Veteran's major depression was not manifested in, and is not shown to be related to, his service. CONCLUSION OF LAW Service connection for a psychiatric disorder, to include PTSD, is not warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a) (2012). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A May 2001 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This was supplemented by March 2006 and February 2011 letters to the Veteran informing him of disability rating and effective date criteria, and of the evidence which may support a PTSD claim based on personal assault. This was followed further by a June 2012 letter informing the Veteran of the criteria for establishing service connection for a psychiatric disorder other than PTSD. These letters were followed by subsequent readjudications, curing any notice timing errors. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. Exhaustive attempts have been made to obtain all available service treatment records (STRs). The Veteran's STRs from his first period of service, however, are unavailable, as reflected by March 2010 correspondence. The Veteran was asked to submit any STRs in his possession. Exhaustive attempts were also made to verify the veteran's claimed service stressors. However, they could not be verified because he provided insufficient information to allow for such (e.g., too broad a time range to allow for verification of a tank accident event 1984); notably, he was not stationed in Germany in October 1987 (so development to verify an alleged tank accident at such time would be pointless). Furthermore, he has not provided any information capable of being corroborated concerning alleged abuse during training at Fort Carson. His service personnel records are associated with the record, and pertinent post-service treatment and Social Security Administration records have been secured. The RO arranged for a VA psychiatric examination in June 2002. Since there is no competent evidence of psychiatric disease or injury in service, and because no stressor event in service has been corroborated, a VA nexus examination is not necessary. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Factual background The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In May 2001, the Veteran submitted a claim of service connection for PTSD. He had claimed service connection for other disabilities in March 1994. The Veteran's available STRs, including March 1992 and May 1993 reports of medical history and periodic examinations for postservice National Guard service, do not show any psychiatric history, complaints, or diagnoses. He denied having or having had psychiatric symptoms, and psychiatric clinical evaluation was normal. The Veteran's service personnel records show that from March 1971 to March 1973, during his first period of service, he had no foreign service, and that he served in the United States and Germany for his second period of service. Service records show, in pertinent part, that from July 1989 to February 1992, he served in Germany with the 77th Maint Company, with principle duties in artillery repair. Otherwise, they show his service was in the United States. They do not show that he had any service in Southwest Asia. Psychiatric treatment is first shown in 1994, with a June 1994 record indicating that the Veteran had had symptoms for approximately 6 months. Major depression and provisional PTSD were noted in June 1994. A June 2002 VA examiner found the Veteran to have PTSD as well as depression, not otherwise specified. The examiner stated that he met all of the criteria for PTSD but that it was difficult to partial out how much of the trauma was related to military experiences as opposed to early childhood abuse. He stated that the stressors did not appear to be combat related but to have been related to trauma while going through physical training and from being shot at while on tour in the Gulf War area. It was the examiner's best estimate that perhaps 50 percent of the Veteran's PTSD was related to service. In June 2001, the Veteran reported stressors asserted to have occurred in service as: having combat duty during the Gulf War, with special duty with the 52nd Air Command, flying from Frankfurt, Germany to Dhahran, Saudi Arabia between approximately 1990 and 1991. Duties allegedly performed at that time included supervising 32 soldiers to load and unload planes, and painting vehicles. He reported having flashbacks of being fired at, smoke filled sky, and fires. He also indicated that he had cleaned 4 dead soldiers out of an exploded tank at Fort Veilsek, Germany in about 1984, and that he had resulting nightmares from this. He stated that at Fort Hood, Texas, he had worked long hours, resulting in nightmares; and that during training at Fort Carson, he was physically assaulted by the company commander, kicked, pushed, hit in the chest with fists, and kicked with combat boots. He reported he also witnessed other soldiers beaten and kicked. In January 2004, the liaison officer detailed to the United States Armed Service Center for Unit Research Records indicated that a PTSD request for the Veteran had not been researched due to insufficient stressor information. More specific dates were needed for the 6 month period between 1990 and 1991 when the Veteran claims he was fired upon. Also, the identification of the year 1984 as when he reportedly assisted in clearing 4 dead soldiers from an exploded tank was too broad a time period to research. In April 2004 he was asked to provide more specific information; he responded that the tank incident occurred in October 1987. His service personnel records show he was stationed in the United States, not in Germany at that time. Legal Criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also 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. In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Hickson v. West, 12 Vet. App. 247 (1999). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) ; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Where the Veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). On July 12, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and adding a new paragraph (f)(3) that states: If a claimed stressor 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the evidence indicates that the Veteran could not have engaged in combat with the enemy, as he had no foreign service during his first period of service, and no service in Southwest Asia during the Persian Gulf War Era. The service records indicate that he had no foreign service during his first period of service, and while he alleges that he did serve in Southwest Asia during his second period of service, his service personnel records show that his only overseas service was in Germany. Service treatment and personnel records do not show service in Southwest Asia or otherwise make any mention of it, and so his assertions of Southwest Asia service are not credible. Moreover, his alleged fear of hostile military or terrorist activity in Southwest Asia is not consistent with the circumstances of his service (as he did not serve in Southwest Asia). The Veteran's service personnel records show service in Germany with principal duties in artillery repair Regarding the Veteran's June 2001 claim that he was assaulted and witnessed other similar assaults during training, VA recognizes that such incidents are by their nature extremely personal and sensitive, and that many incidents involving assault are not officially reported. Therefore, evidence from sources other than the Veteran's service records may corroborate his account of the stressor incidents. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is another type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible corroborating evidence of a stressor include, but are not limited to: a request for transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression; panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(3). No evidence of this (or any other) type supporting the occurrence of a stressor during training has been received. While PTSD was diagnosed by VA in June 2002, there is no credible supporting evidence that a claimed in-service stressor occurred. The Veteran's alleged stressors reported to (and apparently accepted as factual by) the examiner included being shot at during the Persian Gulf Era. As the veteran had no service in Southwest Asia, his stressor allegations are inherently not credible. A medical opinion premised upon an unsubstantiated account is of no probative value and does not serve to verify the occurrences described. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); see also Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996) (an opinion by a mental health professional based on a post-service examination of the Veteran cannot be used to establish the occurrence of a stressor.) Without evidence that the Veteran engaged in combat or credible supporting evidence of an in-service stressor, even unequivocal medical evidence that a claimant has a diagnosis of PTSD is insufficient to establish that the PTSD is service-related, so as to substantiate a claim of service connection. In summary, the record does not show that the Veteran engaged in combat with the enemy or that he was in fear of hostile military or terrorist activity during service, and there is no credible supporting evidence of his alleged non-combat stressor events. As a threshold legal requirement for establishing service connection for PTSD is not met, service connection for such disability is not warranted. Psychiatric Disability other than PTSD The Veteran has been assigned psychiatric diagnoses other than PTSD, namely major depression. The preponderance of the evidence establishes that such psychiatric disability was not manifested in service, and that there is no basis for relating it to service. The Veteran denied pertinent history and symptoms on postservice (National Guard periodic) examinations in 1992 and 1993, when psychiatric clinical evaluations were normal. His major depression was first documented in June 1994, more than 2 years postservice at which time his symptoms were noted to have started 6 months prior. As major depression was not manifested in service, and is not shown to be related to the Veteran's service, connection for such psychiatric diagnosis is not warranted. The preponderance of the evidence is against the Veteran's claim. Therefore there is no reasonable doubt to be resolved in his favor. The appeal in this matter must be denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for a psychiatric disability, to include PTSD, is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs