Citation Nr: 1314906 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 07-31 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of 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 Veteran's claim for service connection for PTSD. The Veteran filed a timely appeal. In November 2007, a hearing before a Decision Review Officer was held at the RO. A transcript of that hearing is of record. In April 2011, the Board reopened this claim and remanded it to the RO via the Appeals Management Center (AMC) for further development and consideration. All requested development has been completed and the claim is once again before the Board. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal and have been considered. FINDING OF FACT The most probative evidence indicates that the Veteran does not have a credible or corroborated in-service stressor upon which the diagnosis of PTSD can be based. CONCLUSION OF LAW The criteria for establishing service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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, a letter dated in October 2006 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. The 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 August 2006, 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, 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 stressors were 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)). In November 2007, the Veteran was afforded a hearing before an RO Decision Review Officer (DRO) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the DRO who chairs a hearing to explain the issues and to suggest the submission of evidence that may have been overlooked. Here, the DRO asked specific questions directed at identifying whether the Veteran's PTSD was related to service. The DRO also sought to identify any pertinent evidence not currently associated with the claim. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the DRO hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony and subsequent actions, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that no further action pursuant to Bryant is necessary. 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). II. Service Connection 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. 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). Service connection for PTSD requires a medical diagnosis of PTSD 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 claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence required to support the occurrence of an in-service stressor varies depending on whether the appellant was engaged in combat with the enemy. If the evidence establishes that a 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 such Veteran's service, his 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) (2012). Where the record does not establish that a veteran engaged in combat with the enemy, his assertions of in-service stressors, standing alone, cannot provide evidence to establish an event claimed as a stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, he must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). However, effective July 13, 2010, VA amended its PTSD regulations by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 75 Fed. Reg. 39,843 -39,852 (effective July 13, 2010). Essentially, the amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the claimed in-service stressor is related to "fear of hostile military or terrorist activity." As such is not alleged here, the revised provisions do not affect the outcome of this claim. The Board has reviewed all 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). Upon review of the record, the Board finds that the claim for service connection for PTSD must fail because an essential criterion for establishing service connection - credible evidence of an in-service stressor - has not been met. See 38 C.F.R. § 3.304(f). The Veteran initially filed for service connection for PTSD in September 2002, which was subsequently denied by the Board in August 2005. He filed a petition to reopen the claim in October 2006, and in April 2011, the Board determined that new and material evidence had been submitted to reopen this claim. During the course of the claim, the Veteran has reported several stressors. Specifically, the Veteran alleges that while stationed in Alaska, he witnessed a soldier's ear cut off by another soldier in a cafeteria food service line; in 1970 while attempting to disarm a soldier who was brandishing a knife, he grabbed him from behind and a sergeant Watson attempted to assist by jumping on his back, sending all three to the ground, and resulting in the soldier being stabbed in the abdomen. He never found out what happened to the soldier afterwards. He also related a third stressor in which two soldiers were killed by icicles falling and stabbing them as they left a building; and a fourth stressor being an accident during field operations sometime from February to April 1970 when a bulldozer went amuck and crushed several soldiers in their tents. He attributed these stressful experiences to his PTSD. He did not specify the names of any of the casualties, did not provide Sergeant Watson's first name or Blade's real name. He recalled several names of fellow soldiers, including R.P., D.D., and V.C. who might be able to corroborate his claimed stressors. The Board notes that the Veteran does not contend that his PTSD is the result of a combat-related incident or injury. Review of the service treatment and personnel records reflects that the Veteran had active service from April 1969 to April 1971, with service in Alaska from September 1969 to April 1971. He was assigned to the 808th Engr. Bn. (C). He received no award or decoration indicative of engaging in combat with the enemy, and has not alleged any combat service. Further, the Veteran's service treatment records are completely silent regarding any complaints, treatment, or diagnoses concerning a psychiatric disorder. Following service, the Veteran sought treatment at VA beginning in 1996 and continuing through 2012; however, the first mention of PTSD was not until 2002. He also provided Vet Center treatment records, dating from May 2002 through February 2007. In December 2002, the Veteran was afforded a VA compensation examination. During this examination, he recounted his stressful experiences, and was diagnosed with chronic and severe PTSD and mild major depression. However, the medical evidence and VA examination do not identify a verified stressor upon which the diagnosis of PTSD was based. The record contains emails between D.D. and the Veteran dated in September 2006. D.D. stated that he vaguely remembers the incident where the soldier was stabbed while others tried to take a knife away from him. He also said that he did remember the two soldiers getting killed by the falling icicles. He related that it was at the MP unit next door. One reason this incident stuck in his mind was that they decided to knock all of the icicles down so no one else got hurt. A Captain called down to his office in the basement and told him to send one of his men up to get in a cherry picker to knock down the icicles. This individual told the Captain that he would not do that, and he was amazed that he did not get in trouble over this incident. Additionally, a July 2011 statement from V.C., along with a copy of V.C.'s DD Form 214, indicates that he was stationed with the 808th Engineers at Fort Wainwright in Alaska at the same time as the Veteran. During his time, V.C. stated that he heard stories about large icicles that killed two men, and a bulldozer running over people while sleeping in tents on a training exercise in the winter. However, in September 2012, the RO attempted to contact V.C. for additional information to further assist the Veteran, but were unable to reach him. Finally, two letters from R.S., the readjustment counseling therapist at the Vet Center, were submitted in support of the Veteran's claim. An April 2007 letter states that the Veteran has been a client since May 2002 for PTSD. R.S. stated that during the counseling sessions, the Veteran discussed personal and military stressors that have interfered with daily functions. A subsequent April 2012 letter notes that the Veteran reports complications dealing with vivid flashbacks from his military service in Alaska. The Veteran reported the same stressors described above, and R.S. stated that this caused "intense fear, helplessness, and horror." In April 2011, the Board remanded this claim in an attempt to verify the Veteran's claimed stressors. In May 2011, a letter was sent to the Veteran requesting additional information concerning his statement of serving with D.D. in 1970. The Veteran did not respond to this request for information. In June 2011, the AMC requested additional information from the Joint Services Records Repository Center (JSRRC) concerning the alleged stressor of the stabbing of a soldier in November 1969. In response, in February 2012, the JSRRC stated they were unable to document the injury of another soldier, death of another soldier killed by an icicle, or that D.D. served with the Veteran. The JSRRC recommended that a Morning Report and Medical Records search be conducted, and to contact the U.S. Army Crime Records Center (USACRC). In March and September 2012, the AMC contacted the USACRC, and a response of "No Record" was received to both requests. Also in March 2012, the same request was sent to the National Personnel Records Center (NPRC), and a negative response was also returned. In September 2012, a request for Morning Reports was submitted, but the AMC was informed that the request was not specific enough. The AMC ultimately issued a formal finding of lack of information needed to corroborate the Veteran's stressors in October 2012, following the receipt of these negative responses. The Board finds that service connection is not warranted for PTSD as the evidence of record demonstrates that there is no verified stressor upon which a diagnosis of PTSD was based. The Board has considered the Veteran's assertions as to the occurrence of his claimed stressors, as described above. However, despite numerous inquiries to relevant service department sources, the Veteran's claimed stressors could not be verified. Furthermore, a July 1971 VA treatment record notes the Veteran sought treatment for sinusitis. Beginning in March 1996, the Veteran also sought treatment for alcohol dependence and, despite numerous visits for counseling sessions, there was no mention of any of the alleged stressors until January 2002. The Veteran filed his claim of PTSD in September 2002. The Board finds the Veteran's assertions while seeking service connection are simply less persuasive and credible than his service personnel records and the military records which fail to document the alleged stressor events, as well as the lack of any mental health problems while he was seeking treatment for alcohol dependence from 1996 until 2002. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). As noted above, establishing service connection for PTSD requires credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2012); see also Cohen v. Brown, 10 Vet. App. 128 (1997). In this case, the Veteran did not serve in combat and his stressor does not relate the fear of hostile military or terrorist activity; thus, corroboration or verification of the claimed stressor is necessary. Here, the Veteran's claimed stressors could not be verified. While the Veteran submitted buddy statements, there is no evidence corroborating that D.D. served with the Veteran. In addition, the statement from V.C. noted that he recalled hearing stories about the icicle incident and bulldozer incident, but his statement clearly reflects that he did not witness the events or have any firsthand knowledge of them. Neither statement provided dates or names of the individuals involved, and neither statement establishes that the Veteran witnessed the alleged incidents. Thus, the Board finds these statements are accorded little, if any, probative weight as the statements do not provide sufficient information to corroborate that the Veteran experienced the claimed stressors. See Buchanan, 451 F.3d at 1336-1337 (the lack of contemporaneous records and the significant time delay between the affiants' observations and the date on which the statements were written, are factors that the Board can consider and weigh against a veteran's lay evidence). In short, there is no evidence from official military sources corroborating the claimed stressors, despite the incidents being ones for which documentation likely would have occurred. The information provided regarding these events has not been sufficient to support further inquiry. Thus, as the Veteran's claimed stressors are not verified or corroborated by probative evidence, any diagnosis of PTSD based upon such unverified stressors cannot serve as the basis to establish service connection. 38 C.F.R. §§ 3.304(f), 4.125(a). The Board notes the Veteran's readjustment counseling therapist at the Vet Center, R.S., has provided a diagnosis of PTSD based on the Veteran's claimed stressors. Significantly, a review of the records from the Vet Center show that the only military experiences referenced were the same stressors which were cited as being the cause of the PTSD or PTSD symptoms. As set out above, those stressors have not been verified. The only medical evidence of record which diagnoses PTSD is based on an unverified stressor. Accordingly, the Board concludes that the preponderance of the competent, credible, and probative evidence is against the claim, and service connection for PTSD is denied. 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 that 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). In that case however, the Court held that the Board erred when it denied that veteran's claim for benefits for PTSD for lack of a current diagnosis although he had a current diagnosis of a mental disorder other than PTSD because "the fact that the appellant may be wrong about the nature of his condition does not relieve the Secretary of his duty to properly adjudicate the claim." 23 Vet. App. 1, 6 (2009). Such is not the case here. In this case, the Veteran has claimed service connection for PTSD, and has established such diagnosis throughout the claim. Thus, the Veteran is claiming service connection for a disability he has indeed been diagnosed with, and this situation is distinguishable from that in Clemons in that the Veteran here is not mistaken as to his diagnosis. Moreover, to the extent the record notes diagnoses of major depression in 2002 and just prior to filing his reopened claim in 2006, such diagnosis has been made in addition to, not in lieu of, PTSD. Unlike in Clemons, the Veteran has a definitive diagnosis of PTSD, which is the disability for which he is claiming benefits. Thus, the Board finds the scope of the Veteran's claim is solely for service connection for PTSD. Id.; see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed.Cir.2008) ("[C]laims based on separate and distinctly diagnosed diseases or injuries must be considered separate and distinct claims."). Even if the scope of the claim is deemed to include major depression, there is no competent evidence suggesting the Veteran's major depression, to the extent it has been present during the course of this claim, is related to service. There is no evidence of depression during service, and post service treatment records demonstrate that, despite receiving treatment for other disorders, the Veteran did not seek treatment for a psychiatric disorder until years after discharge. Additionally, the Veteran's VA and private treatment records do not indicate that his depression is due to his service. Rather, discussions not addressing PTSD generally centered on family problems. Additionally, to the extent his depression may be alleged to be attributable to his claimed in-service stressors, such stressors have not been verified and cannot serve as a basis for service connection. As such, there is no competent evidence suggesting a relationship between major depression and service to permit a finding of service connection. 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