Citation Nr: 1316555 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-37 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The Veteran requested a Board hearing in his September 2009 substantive appeal. The RO notified him in a September 2010 letter that a hearing was scheduled for him in October 2010; the record reflects that he failed to report for that hearing. As he has not provided an explanation for his absence at the hearing, and has not requested an additional hearing, the Board finds that his hearing request is withdrawn, and that appellate adjudication may proceed. The Veteran's November 2007 claim specifically indicated that he sought service connection for PTSD. The Court of Appeals for Veterans Claims (Court) has held that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, review of the record does not reveal that any non-PTSD diagnosis was made during the appeal period. Accordingly, the issue of entitlement to service connection for PTSD has not been expanded to include other psychiatric diagnoses. FINDINGS OF FACT 1. Service treatment records do not reflect evidence of a psychiatric disorder during active duty; PTSD was first diagnosed many years after service. 2. The stressor of alleged personal assault has not been corroborated. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 5013A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A December 2007 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and his VA medical treatment records have been obtained. Private treatment records were requested from the Veteran's former employer in July 2008 and August 2008, but no response was received from that company. Additionally, the record reflects that the RO and the Veteran's VA counselor made attempts to contact the Veteran's former in-service roommate in an effort to verify his claimed in-service stressor event, but these attempts were unsuccessful. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA). 38 C.F.R. § 3.159 (c)(2). A VA psychiatric examination was not conducted because the Veteran's claimed stressor event could not be corroborated, despite extended efforts. Moreover, the Veteran's statements regarding evidence of behavior changes in service and his service roommate's contemporaneous knowledge of the claimed stressor is not found credible. As there is no credible evidence to corroborate the occurrence of the claimed stressor event in service, the duty to assist to get an examination is not triggered. 38 C.F.R. § 3.159(c) (4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders 129 S. Ct. 1696 (2009). Laws and Regulations A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In addition, according to 38 C.F.R. § 3.309(a), service connection for psychosis may be granted on a presumptive basis if the condition is manifested to a compensable degree within one year after separation from service. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); 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). In this case, the Veteran's only reported stressor is related to alleged personal assault. The Board notes that there are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than the veteran's service records which may corroborate his or her account of the stressor incident. 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. 38 C.F.R. § 3.304(f)(5) (2012). The M21-1MR also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1MR, Part IV, Subpart ii, 1.D.17.g. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a 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)(5). VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. In addition, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). The Veteran received adequate notice regarding his PTSD claim based on personal assault. The Veteran has asserted that beginning in November 1968; his mess sergeant (Sergeant Hill) verbally and physically assaulted him and continuously harassed him. In a January 2008 stressor statement, he indicated that this first time this occurred; the mess sergeant entered his barracks while he was sleeping and kicked him awake. He indicated that this sergeant continued to verbally and physically beat him up when they were alone. The Veteran also reported that R.T. Wilkinson was his former roommate and friend in service, and he observed the Veteran's physical bruises and abrasions, knew of the Veteran's fear of the sergeant, and was aware of the Veteran's desire to get out of the Army as soon as possible. In the January 2008 stressor statement the Veteran also reported that he made several requests for a duty station transfer even though he was threatened with a court-martial for doing so. He also reported that he used marijuana and alcohol in service. He further reported depression and changes in his sleep and eating patterns, but did not indicate if this occurred during or after service. In support of his claim, the Veteran submitted a letter he received from another fellow soldier in July 1969, which contained a reference to a person, named "Wilkinson" and provided a description of conditions at the unit after the Veteran separated from service. This letter does not mention any harassment or physical assault involving the Veteran at the hands of Sgt. Hill or anyone else. The Veteran also submitted a "buddy statement" that he wrote for the RO to send to R.T. Wilkinson in an attempt to corroborate his service stressors. In this "buddy statement" the Veteran, in pertinent part, wrote "I'm putting in a claim with the VA. The part I never told you about Hill was this - [T] he guy terrorized me a number of times." In the statement, the Veteran then went on to describe the incident where Sgt. Hill picked up his bunk while he was sleeping and flipped it over. Later in the statement, the Veteran wrote "I'm hoping that you will respond to the VA-and confirm that you were my roommate and that Sgt. Hill was one of the Mess Sargeants over me." The RO sent this "buddy statement" to R.T. Wilkinson in March 2009, but no response was received. The Veteran's DD Form 214 reflects that he had a military occupational specialty of cook. His service personnel records show that he did have a tour of duty in Korea from February 1968 to May 1969. The personnel records also show that for the four-month period prior to April 1969 (i.e. December 1968 to April 1969) none of his superiors, including his mess supervisor, first sergeant, or commanding officer had the surname of "Hill." The Veteran's service treatment records do not reflect psychiatric complaints, treatment or diagnoses. The service records also do not reflect treatment for physical wounds consistent with the Veteran's report of ongoing physical assaults by his mess sergeant, including bruises and abrasions. The Veteran denied symptoms of depression, excessive worry, and nervous trouble of any sort on his Report of Medical History dated in April 1969 and completed prior to separation in May 1969. He also denied having a drug or narcotic habit. Post-service VA treatment records show diagnoses of PTSD and the Veteran's report of having suffered physical and verbal abuse and harassment during service at the hands of Sgt. Hill. A November 2007 clinic note reflects that the Veteran reported to his social worker that R.T. Wilkinson was his roommate in service, but was rarely in the room with him because R.T. Wilkinson was a truck driver and had a different work schedule than the Veteran. Based upon the evidence of record, the Board finds that the preponderance of the evidence weighs against the claim for service connection for PTSD. Turning first to element (2) of 38 C.F.R. § 3.304(f), in-service stressor, the Veteran has variously contended that he was physically assaulted, verbally abused, and generally harassed multiple times during his period of active duty service by his mess sergeant, Sgt. Hill. However, for the reasons below, the evidence fails to corroborate the Veteran's assertion of personal assault during his period of service. Contrary to the Veteran's current assertions, review of his service personnel records show no requests for a duty station transfer. The Veteran has not submitted any other documentation (e.g. letters he wrote to his family members while in service) to support these alleged transfer requests. As such, the service personnel records do not corroborate the Veteran's alleged stressors. Also, his service treatment records do not show evidence of any physical wounds, such as bruises or abrasions, alleged to have been sustained in the assaults by Sgt. Hill. In addition, the April 1969 Report of Medical History shows the Veteran denied experiencing depression, nervousness, or excessive worry- and that he denied use of drugs or having a narcotic habit. This contemporaneous evidence contradicts his January 2008 stressor statement that he experienced "intense fear and helplessness" for the first time when the stressor incident occurred and that he began to use drugs and abuse alcohol as a result. The Board again places greater weight of probative value on the history the Veteran presented to medical professionals at separation years ago than it does on his more recent statements to VA in connection with his claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Further, while the Veteran may have experienced other behavioral changes, such as depression, deterioration in his sleep and eating patterns, there is no indication that these changes occurred during service and he did not specifically report that they did. As such, the service treatment records do not corroborate the Veteran's alleged stressors. The letter received from another fellow soldier in July 1969, which contained a reference to a person named "Wilkinson" and provided a description of conditions at the unit after the Veteran separated from service, does not mention any harassment or physical assault involving the Veteran at the hands of Sgt. Hill or anyone else. As such, it does not corroborate the Veteran's alleged stressors. The RO and the Veteran's VA social worker made attempts to contact the Veteran's former roommate in service, in an effort to verify his claimed stressor events. The RO even mailed the "buddy statement" authored by the Veteran to R.T. Wilkinson in March 2009. While no response was ever received, the Board notes that in the statement, the Veteran clearly indicated that he never told R.T. Wilkinson about the alleged incidents between himself and Sgt. Hill. This directly contradicts his January 2008 stressor statement, in which he reported that R.T. Wilkinson observed the Veteran's physical bruises and abrasions, knew of the Veteran's fear of the sergeant, and was aware of the Veteran's desire to get out of the Army as soon as possible. For this reason, the Veteran's assertion that testimony from R.T. Wilkinson could serve to corroborate his stressor, is not credible. Furthermore, it does not corroborate the Veteran's alleged stressors. Accordingly, the Board finds that the evidence of record (both medical and lay) does not corroborate the Veteran's accounts of the claimed in-service stressors. With no proof of a verified in-service stressor, element (2) of 38 C.F.R. § 3.304(f) is not met, and the claim for PTSD fails on this basis alone. As to element (1), a current diagnosis, the Board recognizes the record reflects that a VA social worker has provided the Veteran with a diagnosis of PTSD, based in part, on his report of having been subjected to harassment and physical assault by his mess sergeant in service. However, this diagnosis is not probative because it is not based on a verified stressor. As the reported in-service stressors have not been corroborated, nor found to be credible, the diagnoses of PTSD noted throughout the VA treatment records lack probative value. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). Ultimately, neither the Veteran's service records, nor other types of corroborative evidence submitted in support of the claim, serve to verify the claimed stressors. The Veteran's representative asserts in an April 2013 statement that the Veteran's stressor did not need to be verified for service connection to be granted because the stressor was personal assault, and that under those special regulations, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. This includes certain documentation (to include statements from lay observers), as well as evidence of behavior changes (to include requests to transfer to an additional duty station or assignment) could serve as evidence in support. While evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident, a PTSD claim based on in-service personal assault still requires corroboration or verification of the Veteran's account of the stressor incident. See 38 C.F.R. § 3.304(f). For the reasons discussed above, the Board finds that evidence presented, including evidence from sources other than the Veteran's service records, fails to corroborate the Veteran's account of the stressor incidents. In summary, for the reasons and bases expressed above, the preponderance of the evidence is against the Veteran's claim. As stated above, establishing service connection for PTSD requires the satisfaction of three specific criteria. In this case, all of the elements of 38 C.F.R. § 3.304(f) have not been met. In addition, as a psychosis was not diagnosed within one year of separation from active duty, service connection for such may not be presumed. 38 C.F.R. § 3.307, 3.309. The preponderance of the evidence is against the claim for service connection. The benefit of the doubt doctrine is inapplicable, and service connection for PTSD is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is denied. ____________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs