Citation Nr: 1324960 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 08-30 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active service from November 1965 to November 1967. The appeal comes before the Board of Veterans' Appeals (Board) from November 2007 and September 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2012, the Board, inter alia, reopened a previously denied claim of service connection for PTSD on account of the receipt of new and material evidence, and denied the claim on the merits. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). In February 2013, the parties entered into a Joint Motion for Remand (Joint Motion), and that part of the Board's decision that denied entitlement to service connection for PTSD was remanded by a February 2013 Court order. The issue of service connection for prostate cancer is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran was not engaged in combat with the enemy during active military service. 2. There is no competent and credible evidence corroborating the occurrence of the Veteran's alleged in-service stressor. CONCLUSION OF LAW The criteria for establishing service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (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)) redefined VA's duty to assist a claimant 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 a claimant 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 a 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). The Veteran was provided VCAA notice in a May 2007 letter, issued prior to the initial adjudication of the claim. The letter advised the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by him and what information and evidence will be obtained by VA. Finally, the letter advised him of how disability ratings and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last adjudicated in August 2009. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records and records from the Social Security Administration (SSA). The Veteran was not afforded a VA examination in conjunction with his claims; however, in the absence of credible evidence indicating that the claimed in-service stressor occurred, no examination is warranted. See 38 C.F.R. § 3.159(c)(4)(C); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was 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 Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; 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; 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). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012); see also Cohen v. Brown, 10 Vet. App. 128 (1997). 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, if a stressor claimed by a veteran is related to that 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 a 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 that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "[F]ear 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 veteran bears the "'evidentiary burden' to establish all elements of his claim, including the nexus requirement." Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). The Board's duty is to assign probative value to all pertinent medical and lay evidence of record based on its credibility and competency, and then weigh the evidence regarding all material elements of a claim. See 38 U.S.C.A. § 7104(d); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The evidence in this case establishes that the Veteran has been diagnosed with PTSD. A March 2005 disability determination from the SSA found the Veteran disabled due to a back disorder and PTSD. In letters dated in March 2003 and October 2004, a VA psychiatrist related the Veteran's PTSD to a reported life threatening event that occurred while the Veteran was stationed in the Dominican Republic from 1965 to 1967. It was reported that a truck that the Veteran was riding in struck a land mine which killed the driver and that children in the back of the truck were severely injured. Current outpatient records note PTSD on the problem list and the Veteran generally relating that same stressor. What this case lacks, however, is credible evidence that the claimed in-service stressor actually occurred. In this regard, the Board finds that the Veteran has exhibited a general pattern of inconsistency concerning his health complaints and reports of military history. Specifically, the Veteran has provided varying accounts of the existence and nature of his reported stressor. For example, during initial May 2001 VA mental health treatment, the Veteran was specifically asked about his military history, but did not report any military stressors and denied combat. Then, in a written statement in support of a claim for service connection for PTSD dated in September 2001, the Veteran reported that while stationed in the Dominican Republic from April 1966 to December 1967, he transported cargo through rebel territory under gunfire, but did not report any land mine incident. Yet, during subsequent November 2001 VA mental health treatment, the Veteran did not report any service-related stressors, but reported recent psychosocial stressors related to being discharged from work in October 2000 and then subsequently being evicted from his apartment. Even more significant is a June 2002 VA treatment record showing that PTSD screening was negative and that the Veteran affirmatively denied 1) being attacked; 2) being in combat; 3) being in a bad accident; 4) being threatened with a weapon; and, perhaps most significantly, 5) seeing someone else badly injured or killed. Then, during September 2002 VA treatment, the Veteran offered a vague report of involvement in "skirmishes" while serving in the Dominican Republic in 1966 in asserting that he had been told he might have PTSD during prior treatment; however, it was noted that there was no mention of that in the relevant intake evaluation or notes. In December 2002, the Veteran reported that during the main stressor incident involving a land mine in service, the driver was killed and that children in the back of the truck were severely injured. That account was reiterated in the March 2003 and October 2004 statements provided by the VA psychiatrist. However, during February 2007 VA treatment, the Veteran reported witnessing a child blown up when a truck hit a land mine. Similarly, in a statement dated in September 2007, the Veteran reported that Sergeant (Sgt.) T.W.F, who was the driver of the truck, was injured and not killed. He stated that a child was lying dead in front of him from the blast. He also reported that the incident took place in September 1966. However, the Veteran's service personnel records show that he served in the Dominican Republic from April 5, 1966, to August 20, 1966. Thus, he was not the Dominican Republic at the time he alleges the incident occurred. In a subsequent statement dated in November 2007, the Veteran indicated that he and Sgt. T.W.F received minor injuries on June 14, 1966, at Boca Chica when the truck hit a land mine. Once again, this statement directly contradicts his December 2002 report during VA treatment and the statements as reported by the VA physician that the driver of the truck was killed and not injured. Interestingly, during November 2009 VA mental health treatment, the Veteran once again reported that it was the driver who was killed, contrary to his assertions since at least February 2007 that it was a child killed during the claimed land mine incident. The Board also notes other inconsistencies in the Veteran's reports relating to his reported stressor as well as his service in general. Regarding the latter, in December 2001, the Veteran was assisted by a VA counselor with correspondence to his congressman in which the Veteran asserted that he served in the Dominican Republic "as well as Vietnam." The Veteran reiterated that he had Vietnam service during December 2006 VA treatment. Significantly, the Veteran's service personnel records do not show service in Vietnam. As for further inconsistencies relating to the Veteran's claimed stressor, in a September 2007 statement, the Veteran reported that he injured his eye during the reported land mine incident and that he received treatment for the injury. The Veteran's service treatment records, however, do not reveal any treatment for an eye injury or disability. On his separation examination in 1967, he denied eye trouble. A January 1997 report from Jefferson Medical College notes the Veteran complaints of diplopia and proptosis dating to September 1996. It was noted that at that time he had a history of sudden onset of severe headache both frontal and temporal region. The Veteran specifically denied any head or orbital trauma. Following diagnostic testing he was diagnosed with a cavernous carotid fistula embolization affecting the left eye. An October 2001 VA treatment record shows that the only eye injury reported by the Veteran occurred in 1995. Similarly, during January 2007 VA eye treatment, just months prior to the Veteran's September 2007 assertion of an eye injury coincident with his claimed in-service stressor, the Veteran reported his prior eye problems in the 1990s, but expressly denied trauma or injury to the eyes. Despite the Veteran's varying accounts related to his stressor, the RO attempted to verify his report. The RO reviewed the personnel records of Sgt. T.W.F. to attempt to corroborate the Veteran's reported stressors. In a July 2008 statement, the RO military records specialist determined that Sgt. T.W.F. was not assigned to a unit or location that the Veteran claimed he was during the reported in-service incident. Additionally, the RO attempted to verify the stressor through the United States Army and Joint Services Records Research Center (JSRRC). JSRRC responded that it researched the historical reports submitted by Headquarters, Inter-American Peace Force, Dominican Republic, covering the period of April 1, 1965, to September 20, 1966. The reports listed several hostile incidents against U.S. Forces in the Dominican Republic; however, the only documented incident similar to the Veteran's report involved the stoning of two U.S. vehicles on July 2, 1966. No casualties were reported. The report did not document the Veteran's claimed stressor. Thus, the Board finds the numerous inconsistencies in the Veteran's statements throughout the record, to include his denial of any life threatening stressor in June 2002 and the repeatedly changing story regarding who was involved, injured, and/or killed in the alleged land mine accident, render the Veteran's allegations noncredible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006). Such finding is further bolstered by military records which showed the Sgt. T.W.F., who the Veteran alleges was driving the truck and was killed versus injured, was not assigned to the claimed unit or location as alleged, and by the JSRRC's finding that there were no land mine incidents in the Dominican Republic consistent with his allegations during the Veteran's time there. Further, the date the Veteran initially provided for the event was after he left the Dominican Republic. He then changed the date to correspond with his time there, but changed the outcome of the truck hitting a mine to both Sgt. TWF and himself receiving only minor injuries. The Board is cognizant that under 38 C.F.R. § 3.304(f)(3), in pertinent part, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, if his claimed stressor is related to fear of hostile military or terrorist activity and the claimed stressor is consistent with the places, types, and circumstances of that veteran's service. (Emphasis added). Here, the stressor claimed by the Veteran is not consistent with the places, types, and circumstances of his service. In addressing this requirement, factors for consideration include the "veteran's service record, the official history of each organization in which the veteran served, such veteran's medical records, and all pertinent medical and lay evidence." 38 U.S.C.A. § 1154(a); see also 75 Fed. Reg. 39843, 39844 (July 13, 2010). Here, the Veteran first alleged the stressor occurred in September 1966, after he left the Dominican Republic. Moreover, he has alleged that he received an eye injury in the incident, yet his service treatment records do not reflect such and he denied any eye problems on his separation examination. Moreover, JSRRC researched the historical reports and found no incidents consistent with the Veteran's reported stressor concerning the land mine during the period from April 1, 1965 to September 20, 1966. Additionally, the sergeant who the Veteran alleges was present with him during the incident was not assigned to a unit or location consistent with the Veteran's allegation. Finally, as noted above, the Veteran's lay statements concerning the alleged stressor have been inconsistent and contradicted by other statements made by him during treatment. Upon consideration of the evidence of record, the Board finds the Veteran's alleged stressor is not consistent with the places, types, and circumstances of his service. As such, the provisions of 38 C.F.R. § 3.307(f)(3) do not apply and corroboration of his claimed stressor is required to establish service connection for PTSD. For the reasons set forth above, however, the Board finds there is no competent and credible evidence corroborating his claimed stressor. To the extent that the record contains other reported stressors, including being shot at by rebels while moving cargo, involvement in skirmishes, military activity while clearing villages, and witnessing a soldier severely injured as a result of a parachute jump, the Board finds that those reports are not credible. The Veteran has provided inconsistent accounts of his stressors and affirmatively denied ever being threatened with a weapon or witnessing someone be severely injured or killed. As such, the Board finds his assertions lack credibility. In support of that finding, the Board points out that during November 2006 VA treatment, the Veteran stated that he experienced one traumatic event with intrusive thoughts related to his military experience, and in November 2009, an assessment was made of PTSD related to one incident in the Dominican Republic. The Board acknowledges the Veteran is currently diagnosed as having PTSD due to service. However, in the absence of competent and credible evidence establishing that a claimed in-service stressor occurred, the diagnoses of PTSD based upon such has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value); see also Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (providing that reliance on a Veteran's statement renders a medical report incredible if the Board rejects the statements of the Veteran). In summary, there is no competent and credible evidence supporting that the Veteran's claimed in-service stressor actually occurred. Therefore, the Board finds that the preponderance of the evidence is against the claim for service connection for PTSD. In reaching this conclusion, 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 of service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for PTSD is denied. REMAND Regarding service connection for prostate cancer, the Veteran requested a Board videoconference hearing on his June 2012 VA Form 9. In a subsequent statement received in October 2012, the Veteran reiterated his desire for a Board hearing, but indicated that he desired both a videoconference hearing and a Central Office hearing in Washington, D.C. In February 2013, the RO sent the Veteran a letter requesting clarification as to whether he desires a videoconference hearing or a hearing in Washington, D.C. However, the Veteran did not respond to that letter. Given that the Veteran clearly requested a videoconference hearing in June 2012, and did not provide clarification regarding his unclear October 2012 communication in which he requested both a Central Office hearing and a videoconference hearing, the Board will rely on the Veteran's initial request as indicating his intent. Consequently, he is entitled to a Board videoconference hearing before deciding his prostate cancer appeal. 38 C.F.R. § 20.700(a) (2012). Therefore, a remand is necessary in order to afford the Veteran his requested hearing. Accordingly, the case is REMANDED for the following action: The RO should take the necessary steps to schedule the Veteran for a videoconference hearing before a Veterans Law Judge. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs