Citation Nr: 1319475 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 11-17 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New Hampshire State Veterans Council WITNESSES AT HEARING ON APPEAL Appellant and Vet Center Care Provider ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from June 1943 to October 1955. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. 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 evidence does not show that the Veteran engaged in combat or experienced a stressor during active duty. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in July and November 2009 letters. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment and personnel records, VA and Vet Center records, the Veteran's statements, a VA memorandum regarding the results of research by the Joint Services Records Research Center (JSRRC), and the transcript of a September 2011 hearing before a Decision Review Officer. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. VA has a duty to provide a VA examination expressing an opinion when the record lacks sufficient evidence to decide the veteran's claim, but contains evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed below, a stressor has not been established. Thus, there is no evidence of a relevant in-service event, injury, or disease or an indication that the claimed disability may be related to service. See McLendon, supra. Accordingly, McLendon element (2) is not met and therefore a VA examination is not required in order to decide this claim. Id; see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (finding that further development would serve no useful purpose when it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. 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 Court of Appeals for the Federal Circuit (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 the claim. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, 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). In particular, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor(s) occurred; and (3) medical evidence establishing a link between the current diagnosis and the stressor(s) in service. 38 C.F.R. § 3.304(f). Effective July 13, 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. However, these amendments pertain to claimed stressors that are related to a veteran's fear of hostile military or terrorist activity. Thus, they are not relevant to the Veteran's claim. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran asserts that he incurred PTSD as a result of stressors that occurred while he served on the USS MACOMB. In correspondence received in November 2009, the Veteran asserted that in 1945, a Japanese airplane was shot down and hit the USS MACOMB. He also stated that in 1952 when the USS WASP collided with and severed the USS HOBSON, he lost a good friend whose name he could not remember. He said that he thought his own ship was there at the time. During the September 2011 hearing, the Veteran stated that he experienced three stressors while on the USS MACOMB. He stated that in 1945 he saw a fellow sailor get shot by a Japanese airplane during combat. In May 1945, a Japanese aircraft was shot down and hit the USS MACOMB during combat. In 1952, the USS MACOMB's sister ship, the USS HOBSON, was hit and sunk by the USS ENETERPRISE. The Veteran stated that he had friends on the USS HOBSON who did not survive. The Veteran stated that the USS MACOMB was not with the USS HOBSON at that time. He did not know where his own ship was when he heard the news. He learned of it when his daughter asked if he had survived the accident, thinking it had been his ship that sank. The Board is aware that a March 2009 treatment summary from a Vet Center identifies several other stressors that the Veteran reported during treatment. However, as the Veteran did not report these incidents to VA himself, the Board will not address them. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for PTSD. In so finding, the Board observes that there is no evidence that the Veteran was in combat or that he experienced a stressful event during service. The Veteran's service personnel and treatment records do not corroborate his claimed stressors. His service treatment records are negative for relevant complaints, symptoms, findings or diagnoses. His service personnel records reflect that he did not serve on the USS MACOMB until 1949, several years after he claims to have witnessed the two combat stressors. His service personnel records fail to show that the Veteran knew anyone onboard the USS HOBSON at the time of its sinking. The March 2009 statement from the Vet Center provides that the Veteran met all of the diagnostic criteria for PTSD, due to the claimed stressors. However, even when a claimant seeking service connection for PTSD has an unequivocal diagnosis of PTSD, service connection for PTSD requires a confirmed military service stressor, unless the claimed stressor is related to combat and the evidence establishes that the Veteran engaged in combat with the enemy. In this case, as noted above, the evidence shows that the Veteran was not assigned to the USS MACOMB in 1945 at the time of the two claimed combat stressors. Thus, whether or not the USS MACOMB was attacked by Japanese airplanes, the Veteran could not have experienced the claimed stressors. The Veteran contends that certain of his service personnel records show that he was on the USS MACOMB at the time of the claimed combat stressors. However, the cited records do not support his claim. The Veteran's October 1949 Notice of Separation from U.S. Naval Service lists the USS MACOMB as the Veteran's permanent address. It does not show that he served on it during World War II. Two other cited record simply do not show that the Veteran served on the USS MACOMB during World War II. With respect to the Veteran's remaining claimed stressor, when a claimed stressor is not related to combat a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. Moreau, supra; Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The record must contain corroborative evidence that substantiates or verifies the Veteran's testimony or statements as to the occurrence of the claimed stressor. West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). There is no evidence in the case before the Board to confirm the Veteran's alleged 1952 stressor. The Vet Center medical diagnosis of PTSD, linked to the Veteran's claimed stressors, does not corroborate that any stressor occurred. The diagnosis is based solely on the Veteran's unsubstantiated assertion regarding what occurred in service. The Court of Appeals for Veterans Claims has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. 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) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). VA has attempted to corroborate the Veteran's claimed 1952 stressor. A February 2010 VA memorandum in the claims file notes that research by the Joint Services Records Research Center (JSRRC) revealed that in April 1952, while in the central Atlantic Ocean, the USS WASP collided with and severed the USS HOBSON. The Veteran was stationed onboard the USS MACOMB, which was in the Mediterranean Sea at that time. The memorandum does not identify any casualties, and indeed the Veteran himself has failed to identify his friend or friends who perished. The memorandum determined that all efforts to obtain PTSD stressor verification information and/or confirmation had been exhausted, and any further attempts by the JSRRC or VA would be futile. The Board is not bound to accept the Veteran's uncorroborated account of his experiences. Wood v. Derwinski, 1 Vet. App. 190 (1992); Swann, supra. The question of whether a specific event reported by a veteran as a stressor actually occurred is a question of fact for the Board to decide, involving, as it does, factors as much historical as psychological. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the Veteran is competent to testify as to events he experienced while on active duty, such as learning of the accidental death of a friend or friends. However, there is no evidence that the Veteran knew any casualties from the 1952 incident. Moreover, the Board finds it significant that the Veteran cannot remember where he was when he learned of the incident or the names of any friend or friends who perished during it. The Veteran's history has been inconsistent as to whether his own ship was with the USS HOBSON or not at the time of the incident. These facts, along with the Veteran's repeated assertions that he witnessed events on the USS MACOMB that occurred years before he was assigned to it, make the Veteran's account of the 1952 stressor appear less than credible. In the absence of a showing of combat with the enemy or evidence of a verifiable stressor, the Board concludes that the Veteran has failed to satisfy the criteria for service connection for PTSD. As the Veteran bases his claim on the reported stressor, service connection cannot be granted without verification of it, regardless of current diagnosis of PTSD. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and service connection for PTSD must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for PTSD is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs