Citation Nr: 1315683 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 05-03 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Donahue, Associated Counsel INTRODUCTION The Veteran served on active duty from September 1971 to October 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2004 and December 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In his December 2004 substantive appeal, the Veteran requested a Board hearing at his local RO. An August 2008 written statement from the Veteran asked that this hearing request be withdrawn. In May 2009 and March 2011, the Board remanded this case for additional development, and the case has been returned for further appellate review. FINDING OF FACT The Veteran did not engage in combat or claim a stressor related to fear of hostile military or terrorist activity consistent with the places, types, and circumstances of his service, and there is no corroboration or verification of the occurrence of the Veteran's claimed in-service stressors. CONCLUSION OF LAW PTSD was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) have been fulfilled. In this case, the Veteran filed application to reopen a claim for service connection in December 2004. Thereafter, he was notified of the provisions of the VCAA by the RO in correspondence dated in June 2005 and March 2006. These letters notified the appellant of VA's responsibilities in obtaining information to assist the Veteran in completing his claim, identified the Veteran's duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. Subsequently, the claim was reviewed and a supplemental statement of the case (SSOC) was issued in July 2009. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir 2007). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claim. Subsection (b)(3) was also added and notes that no duty to provide § 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established." See 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to this matter was provided in May 2007. To the extent that this claim has been reopened, any failure of VA to provide the Veteran the specific notice requirements concerning new and material evidence, as addressed in Kent v. Nicholson, 20 Vet. App. 1 (2006), is harmless error. The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal. His service personnel records, service treatment records, and post-service VA treatment records pertaining to his claimed disabilities have been obtained and associated with his claims file. Additionally, the Board acknowledges that the Veteran has not been provided a VA examination in response to his claim. Additionally, no VA medical opinion has been obtained in response to this claim. VA is obliged to provide a VA examination or obtain a medical opinion when: (1) there is competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the Veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) the evidence indicates that the current disability or symptoms may be associated with service or with another service- connected disability, and (4) there is not sufficient medical evidence to make a decision. See 38 C.F.R. § 3.159(c)(4); see also Charles v. Principi, 16 Vet. App. 370 (2002). In this regard, as discussed below, the evidence of record fails to indicate that the Veteran has PTSD due to a credible in-service stressor. Therefore, the Board finds that the medical evidence currently of record is sufficient to decide the claim and no VA examination or medical opinion is warranted. As noted above, in May 2009 and March 2011, the Board remanded this case for further development. Specifically, these remands instructed the RO to contact additional sources to attempt to verify the Veteran's claimed stressor. As will be discussed in greater detail below, the RO contacted the agencies specified in the remands and obtained adequate responses. As such, the Board finds that the purpose of the prior remands has been fulfilled, and there has been substantial compliance with its prior remand orders. See Stegall v. West, 11 Vet. App. 268 (1998) (duty to ensure compliance with Board remand order). The Veteran has not identified any additional, relevant evidence that has not otherwise been requested or obtained. The appellant has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim. Rules and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all 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 preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (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. See 38 C.F.R. § 3.304(f)(1) (2012); see also, 38 U.S.C.A. § 1154(b) (West 2002). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not 'engage in combat with the enemy,' or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). The regulations governing PTSD were amended, effective July 13, 2010. 75 Fed. Reg. 39843-52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred 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, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. Id. Analysis In this case, the Veteran claims service connection for PTSD is warranted due to multiple stressful events while in active service. The Board notes that the Veteran submitted stressor statements in December 2001 and August 2002 providing information with respect to four stressor incidents. These statements contain somewhat contradictory information, but refer to several soldiers the Veteran apparently knew who lost their lives under different circumstances. The December 2001 statement notes that fellow Marine J.S., who served aboard the USS Enterprise, killed himself with a drug overdose because he was depressed. The August 2002 stressor statement notes that PFC S.J. broke his neck and died in October 1971 at Camp Pendleton, California. The December 2001 statement notes that another Marine, Y.J., was killed, non-battle, in March 1973. The August 2002 notes that a Y.J. from Fox Co. 2nd Battalion was wounded in action in September 1972. The December 2001 statement reflects that a G.R. from the Army was wounded in action in June 1971. The August 2002 statement notes that G.R. died in September 1974 on Germantown Street in Dayton, Ohio, when someone shot him in the head ten feet away. The Veteran indicated that he did not see this death. A review of the Veteran's service treatment records reveals no complaints, treatment, or diagnoses of PTSD. In a July 1967 post-service VA examination, the Veteran denied memory changes, trouble with decisions, and sleep disturbances. In a July 2001 VA progress note, the Veteran denied any past or present psychological history. During an August 2001 VA PTSD screening, the diagnoses were PTSD, opiate dependence, in controlled remission, and cocaine dependence. During a May 2002 VA examination, the Veteran reported he had a number of traumatic stressors, but the worst, by far, occurred in April 1973. He was serving in Fox Company in the 2nd or 3rd Marine Division located near Da Nang. One of his close, personal friends had gotten a 'Dear John' letter and shot himself in the head. While he did not see the shot, the Veteran was nearby and ran toward his friend. He saw the friend with a hole in the front of his head and the back of his head was missing because it was blown away from the force of the exit wound. The Veteran underwent a Personality Assessment Inventory as part of the examination; however, the results of his test appeared to be clearly invalid and uninterruptable. He represented himself in a very negative fashion, but it is not really clear whether he was actually malingering or whether because of his confusion, inconsistency, and reading difficulty, he really did not attend sufficiently to the item content to be able to give meaningful responses. After a mental status examination, the diagnoses were chronic PTSD, as well as heroin dependence, in remission with opiate substitution, and cocaine dependence in partial remission. An August 2002 VA progress note included diagnoses of opioid dependence and PTSD. In a January 2006 VA progress note, the Veteran underwent a PTSD evaluation. During the evaluation, the Veteran reported he has a bad temper, mood changes, especially depression which comes on for no reason, and nightmares. He reported he was in Vietnam while in service. The examiner noted that the Veteran's DD-214 does not validate any combat exposure. The examiner noted that the summary of the evaluation is that the Veteran does not present with symptoms of PTSD. The Veteran's expressed symptoms of mood changes, especially depression, and short temper are not sufficient for PTSD diagnostic criteria and can be readily attributed to his 35 year history of chronic drug use. VA progress notes dated from September 1986 to December 2009 includes ongoing treatment for heroin and cocaine dependence. In a February 2009 statement, the Veteran's representative notes that the Veteran's predominant stressor involves seeing one of his friends shoot himself in the head while serving in Fox Company, 2/4th Marine Battalion, 3rd Marine Division, near Da Nang, Vietnam, in April 1973. (As discussed in a previous remand, however, service personnel records indicate that the Veteran was stationed in San Francisco at this time.) The Board notes that the claims file also contains VA treatment records noting the Veteran as having a diagnosis of PTSD related to witnessing the death of his friend by suicide while in service. As an initial matter, the Board finds that the claims file contains no evidence that the Veteran received any awards or decorations indicative of combat, and there is nothing in his service records suggesting that he ever served in combat. Therefore, the Veteran's claimed stressors cannot be presumed to have occurred under 38 U.S.C.A. § 1154(b). With regard to verifying the Veteran's reported stressors, the Board notes that, though the Veteran's statements were often inconsistent and contradictory, the RO undertook substantial effort to verify the Veteran's claimed stressors. For example, in June 2010, the RO sent a stressor verification request to the United States Marine Corps (USMC) History Division. A June 2010 reply referred the RO to the National Archives and Records Administration (NARA) Modern Military Records Branch for operational unit records; the Manpower and Reserve Affairs (MMSB) Headquarters of the USMC for Marine Corps unit diaries; and the Personal and Family Readiness Casualty Assistance Section (MPRC) for casualty information. In September 2010, the RO sent inquiries to the NARA and the Director of the Naval Criminal Intelligence Service. In an October 2010 letter, the NARA reported searching deck logs of the USS Enterprise for February 1972 and for information related to L Company, 1st Battalion, 2d Infantry Training Regiment, Camp Pendleton, California that support his claims. The letters stated that there were no entries concerning a fatal drug overdose resulting in the death of a Marine. In addition, the 1971 command chronology of the 2d Infantry Training Regiment was examined but there was no mention of the claimed stressor event. A statement dated in January 2011 from the Naval Criminal Investigative Service also found no records of an investigation related to the Veteran's claimed events. In a May 2012 letter, NARA also reported searching for any information concerning the Veteran's claimed accident in October 1971 at Camp Pendleton, about death by a drug overdose on the USS Enterprise in February 1972, and the death on a street in Germantown, Ohio in September 1974, that would support the Veteran's claims. Command chronology and deck logs for the periods indicated included no information concerning the two incidents. There were also no records relevant to the Germantown, Ohio incident. A Defense Personnel Records Information Retrieval System search was unable to verify the suicide/death of Marine J.S. as described by the Veteran. A response for records from Navy Judge Advocate Corps yielded no records related to Maries S. J., J. Y., or C.R. The closest incident that could be identified involving a drug overdose by a woman, J.S. in March 1973 at Twentynine Palms, California. The crucial inquiry in this case is whether the Veteran has established an in-service stressor. As no corroborating evidence has been identified, despite substantial effort on the part of the RO, and in light of numerous inconsistencies in the Veteran's reports, the Board concludes that he has not. As noted, details provided by the Veteran in his reports vary greatly, and significant details such as where he was stationed at the time of what was allegedly the most significant stressor are contradicted by service department records. Even assuming a diagnosis of PTSD, the preponderance of the evidence is against a finding that the Veteran engaged in combat with the enemy during active service or that he has attributed any stressors to fear of hostile military or terrorist activity consistent with the places, types, and circumstances of his service, or credible supporting evidence that the claimed in-service stressor actually occurred. Therefore, service connection cannot be granted for PTSD. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for PTSD must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs