Citation Nr: 1322740 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 09-48 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1988 to April 1988 and from November 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). To ensure a complete review of the evidence, the Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system, which included additional VA treatment records that will be discussed in greater detail below. The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for depression, to include as secondary to service-connected disabilities has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's service personnel records do not show foreign service or that he participated in combat. His contentions that he served in combat are not credible. 2. The Veteran has not shown a verified non-combat stressor in service on which a diagnosis of PTSD can be based, to include fear of hostile military or terrorist activity. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2008 that fully addressed all notice elements. The letter was sent prior to the initial RO decision in these matters and informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Furthermore, the November 2010, May 2011, and November 2011 letters provided the Veteran notice in compliance with Dingess. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) and service personnel records (SPRs) are on file and VA Medical Center records have been obtained. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Additionally, the Board acknowledges that the Veteran has not been provided a VA examination in response to his claim, nor has a VA medical opinion 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 McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4). 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. II. Legal Criteria and Analysis The Veteran has asserted that he has PTSD as a result of his active service, to specifically include his time serving overseas during the First Gulf War where he was exposed to combat and death. In his December 2009 substantive appeal, the Veteran stated that he served in the Gulf War and his service there caused him to develop PTSD. He stated that he had flashbacks of the Gulf War and all the deaths he had been exposed to, caused by both "friendly fire and combat." Service connection specifically for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms an in-service stressor; and credible supporting evidence that the in- service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence established 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. 38 C.F.R. § 3.304(f)(2). 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, 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. 38 C.F.R. § 3.304(f)(3). A review of the Veteran's service personnel records (SPRs) shows that he had active service from January 1988 to April 1988 and from November 1990 to June 1991. A review of his DD Form 214 shows that his military occupational specialty (MOS) was "air cargo specialist" during his first term of active service and "air transportation specialist" during his second term of active service. His DD Form 214 also reflects that he had no foreign service during either period of active service. The SPRs associated with the claims file indicate that during his second period of active service from November 1990 to June 1991, during the beginning of the First Gulf War, the Veteran was stationed at Tinker Air Force Base (AFB) located in Oklahoma. There is absolutely no indication from the Veteran's SPRs that he ever had any foreign service, let alone in a combat theater during the First Gulf War during his active service. Therefore, the Board does not concede a combat related stressor under 38 C.F.R. § 3.304 (f)(3). Further, a review of his service treatment records (STRs) shows that he was treated for numerous injuries during his second period of active service, including but not limited to; left knee pain, low back pain, and a left ankle injury, the treatment for which all took place at Tinker AFB. Additionally, the Veteran's STRs document that in December 1990 he was diagnosed with diabetes mellitus at Tinker AFB. Further, on a December 1991world-wide qualified (WWQ) examination, while still serving in the Air Force Reserves, the Veteran was not noted to have a psychiatric disability of any kind. There is absolutely no indication from the STRs that the Veteran received treatment for, or was diagnosed with, a psychiatric disability, to include PTSD, while he was on active service. A review of the postservice medical records shows that the Veteran was seen at the Dallas VA Medical Center in August 2008 for a mental health evaluation. At that time he reported that he served on active duty with the United States Air Force from 1988 to 1992 and was stationed at Tinker AFB, as well as in Germany, and that he was a combat Veteran. He described a potential military sexual trauma in which he was asked to do sexual favors for another service member's spouse; however, there is no indication that he actually experienced a sexual trauma. He further reported that he experienced symptoms of PTSD including nightmares and flashbacks of his combat experiences. At that time he was diagnosed with PTSD and depression. Later VA Medical Center records associated with the Veteran's "Virtual VA" file show that the Veteran began regularly attending a support group for self-esteem and depression in December 2010; however, there is no indication that he has continued to seek treatment for PTSD. An April 2012 VA treatment record shows that a PTSD screening of the Veteran was found to be negative. The Board notes that although the Veteran was diagnosed with PTSD in August 2008, this diagnosis was made based solely on the history as reported by the Veteran which included inaccurate statements regarding the circumstances of his active service. The Board notes that just because a physician or other health care professional accepted the Veteran's description of his active service experiences as credible and diagnosed the Veteran as suffering from PTSD does not mean the Board is required to grant service connection for PTSD. See generally Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006) (the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion). As noted above, the Veteran's SPRs clearly indicate that the Veteran did not serve in combat during the First Gulf War, or even outside of the continental United States; to that extent, the diagnosis made by the VA Medical Center physician is based on a claimed stressor that is contrary to the evidence of record and is not competent or probative. Furthermore, there is no evidence to show that the August 2008 PTSD diagnosis was made in accordance with DSM-IV criteria as is required by 38 C.F.R. § 4.125(a), or that that the Veteran has since been diagnosed with PTSD in accordance with DSM-IV criteria, or that he even seeks ongoing PTSD treatment. The evidence also suggests that the Veteran may have experienced a non-combat stressor of a possible military sexual trauma which was documented at the time of his August 2008 mental health evaluation. When the claimed stressor is not related to combat, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor; indeed, the Board may not accept a Veteran's uncorroborated account of his in-service stressor as evidence supporting a claim for PTSD if the claimed stressor is not related to combat. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In this matter, the Veteran's contentions regarding service in combat are not deemed credible. As such, the Board has concerns regarding his veracity in pursuing this claim. There is no evidence of record, aside from the August 2008 VA treatment record, that suggests the Veteran may have been a victim of a military sexual trauma while on active service. At his August 2008 mental health evaluation he reported that he was asked to perform sexual favors for a fellow service member's spouse and that he reported the incident and was emotionally humiliated. However, he provided no indication that he was forced to perform any sexual act and has provided no further statements regarding the incident. He has not provided other alternative sources of evidence to corroborate his account. 38 C.F.R. § 3.304(f)(5). Therefore, the Board finds that there is not sufficient evidence of record to find that the Veteran was the victim of a military sexual trauma in order to warrant entitlement to service connection for PTSD. In sum, the evidence of record shows the Veteran did not serve in combat, he was not diagnosed with PTSD while on active service, and there is not sufficient evidence to corroborate the occurrence of an in-service military sexual trauma. Further, the Veteran has not been diagnosed with PTSD in accordance with DSM-IV criteria since his separation from active service. Accordingly, the criteria for service connection for PTSD are not met and the claim must be denied. ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs