Citation Nr: 1335629 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-07 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran had active service from January 1987 to January 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee. Pursuant to the Veteran's request, a hearing before a Veterans Law Judge of the Board was scheduled for March 2009; however, the Veteran failed to appear as scheduled. He has not provided any explanation for the failure to appear nor has he requested a rescheduled hearing. The case, therefore, will be processed as though the request for a hearing had been withdrawn. See 38 C.F.R. § 20.704 (2013). This case was previously before the Board in April 2009, November 2010, and July 2012, at which time it was remanded for additional development. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The case has been returned to the Board and is ready for further review. The Veteran's original claim (September 2005) reflects that he only raised the issue of service connection for PTSD. It is noted that service connection is in effect for a psychiatric disorder other than PTSD, characterized as major depression. As such, the only issue currently before the Board is the service connection claim for PTSD. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran's diagnosis of PTSD is based on a non-combat stressor that has not been corroborated by credible evidence. 2. The Veteran does not have PTSD because of an in-service stressor. CONCLUSION OF LAW The criteria for the establishment of service connection for PTSD have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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. Prior to the initial adjudication of the Veteran's claim, a letter dated in December 2005 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, 16 Vet. App. at 187. Additionally, a November 2010 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, private treatment records, VA treatment records, and VA examination reports are in the file. The Veteran has at no time referenced outstanding private treatment or other records that he wanted VA to obtain or that he felt were relevant to the claim. The RO provided the Veteran with VA examinations, and the Board finds that the examinations are adequate for making a determination in this claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). As will be explained further below, extensive efforts have been undertaken to verify the Veteran's claimed stressors. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, such as psychoses, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2013); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304 (f) (2013); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Effective July 13, 2010, VA amended its regulations pertaining to service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, 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. 38 C.F.R. § 301(f) (3) (2013). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. In this claim, the Veteran has been diagnosed with PTSD, thus, the first criterion for the establishment of service connection is met. The Board must initially point out, however, that the evidence demonstrates that he has no combat status, nor has he alleged in any of his writings that he engaged in hostile action with an enemy. As such, corroborating evidence is needed to support the claim of service connection for PTSD. See 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996), the Court set forth the analytical framework for establishing the presence of a recognizable stressor which is the essential prerequisite to support a diagnosis of PTSD. These are: (1) whether the evidence demonstrates that stressful events occurred, and (2) whether the stressful events are sufficient to support a diagnosis of PTSD. As well, the diagnosis of PTSD must be rendered in accordance with 38 C.F.R. § 4.125(a) that incorporates the provisions of the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). In this instance, the appellant has met the first criterion for establishing service connection for PTSD, that is, a diagnosis of such; however, it is found that the claim for service connection must nonetheless fail because other criteria, to include credible evidence that the claimed stressor(s) actually occurred are not demonstrated. As to the claimed stressors, in a December 2005 statement the Veteran reported that he was assigned to fire base 4P3 in South Korea from September 1989 to October 1989 when he witnessed a soldier who had been attacked, brutally beaten, and mutilated by an unknown attacker. He also reported that he had fired an artillery salvo into the Demilitarized Zone (DMZ) on the command of the fire direction center, which should not have been fired, and which had not been properly cancelled by the fire direction center supervisor. He stated that he was later shown pictures of the impact area, and that a fellow soldier (Private P.) had attempted suicide. However, as will be detailed below, VA has been unable to verify that the claimed stressors occurred. A July 2008 Center for Unit Records and Research (CURR) report shows that it was stated that all available records located at that office, as well as a search of the National Archives and Records Administration (NARA) located in College Park, Maryland, resulted in an inability to locate any combat unit records for Battery A, 8th Battalion, 8th Field Artillery, 2nd Infantry Division to substantiate the claim of releasing a nuclear bomb into the DMZ by mistake as submitted by the Veteran. It was also noted that the agency was unable to document this incident occurred from any of the available historical record collections. In December 2009 and February 2010, VA requested verification of the Veteran's reported stressors from the United States Army and Joint Services Records Research Center (JSRRC). In a response received in March 2010, it was noted that the Veteran's reported stressor involving his Korean service was not researched as there was no indication that the Veteran was serving at the 4P3 firebase in Korea in October 1989, as he had reported. In April 2010, JSRRC also indicated that available records were researched as well as those of NARA, and that there were no combat unit records for the 8th Battalion, 8th Field Artillery, 2nd Infantry Division. It was noted that information regarding the suicide noted may be obtained by writing the Director, United States Army Crime Records Center at Fort Belvoir, Virginia. In May 2010, the RO contacted the Veteran and requested that he provide additional information regarding the reported suicide of the fellow service member. He was asked to supply this information within 15 days of the date of the letter (May 5, 2010). On May 26, 2010, the RO issued a formal finding of a lack of information required to verify stressors in connection with the PTSD claim. The RO determined that the information required to corroborate the stressful events was insufficient to send to JSRRC and/or allow a meaningful search of NARA records. The RO found that all procedures to obtain the information from the Veteran had been followed, and that any further attempts would be futile. All efforts undertaken were listed. In a November 2010 letter, the RO requested additional information from the Veteran regarding his stressors and advised him of the May 2010 formal finding of unavailability. In a response to a March 2011 request, the JSRRC was asked to verify the deployment of special weapons from the Veteran's unit during the time period in question and to verify the suicide of the fellow service member of the Veteran. The JSRRC responded that it was unable to locate any combat unit records for Battery A, 8th Battalion, 8th Field Artillery, 2nd Infantry Division to substantiate the claim of releasing a nuclear bomb into the DMZ by mistake as submitted by the Veteran. It was noted that information regarding the suicide of the fellow service member might be obtained by writing the Director, United States Army Crime Records Center. It was also stated that additional historical information could be obtained regarding the nuclear incident by contacting the Office of the Surgeon General. In January 2013, the RO made a request to the Office of the Surgeon General to verify the nuclear firing incident, and a February 2012 response indicated that such records were not at that office. It was noted that the National Personnel Records Center (NPRC) in St. Louis should be contacted. The personnel records from NPRC were negative as to this incident. In March 2012, the RO requested that the United States Army Crime Records Center provide reports on the asserted suicide, and in a response that same month, it was noted that there was no record of the alleged incident. In March 2012, the RO issued a formal finding of a lack of information required to corroborate stressors associated with the PTSD claim. The RO determined that the incidents regarding the nuclear firing and the suicide could not be corroborated. The RO found that all procedures to obtain the information from the Veteran had been followed, and that any further attempts would be futile. All efforts made to verify the asserted stressors were identified. In November 2012, the RO submitted a request to JSRRC to verify the stressor of seeing a mutilated body of another soldier. In response, the JSRRC stated that all available records located at that office, as well as a search of NARA, resulted in an inability to locate any combat unit records for Battery A, 8th Battalion, 8th Field Artillery, 2nd Infantry Division to substantiate the claim of an unknown soldier being beaten to death in 1989. It was noted that information regarding the suicide might be obtained by writing the Director, United States Army Crime Records Center at Fort Belvoir, Virginia. In a January 2013 response to an RO request, the United States Army Crime Records Center indicated that it had no record of the asserted incident. In April 2013, the RO issued a formal finding of a lack of information required corroborate a stressor associated with the PTSD claim. The RO determined that the incident regarding the mutilation of an unidentified soldier could not be corroborated. The RO found that all procedures to obtain the information from the Veteran had been followed, and that any further attempts would be futile. The RO then listed all efforts made by the RO. As to the diagnosis of PTSD, the record shows several diagnoses. VA medical records dating from August 2000 to March 2006 show that the Veteran had been diagnosed with PTSD. In August 2005, he reported that he served in the DMZ in Korea and had been involved in a military action that killed over 6,000 people. In October 2005, he stated that he served in Korea in 1989, and that he had been called upon to release a nuclear weapon on a town that resulted in the deaths of 6,900 people. He reported feeling guilty regarding this incident and that he had been traumatized upon being shown photos of the victims. He also reported an incident wherein he witnessed a fellow soldier being crushed between two trucks. The diagnosis was a history of PTSD. Subsequent treatment records reflect continuing diagnoses of PTSD, as well as other psychiatric disorders. In a September 2008 letter, a VA clinician stated that the Veteran had been treated by VA from 2005 to 2006 for PTSD and major depressive disorder related to service. An April 2012 VA examination report shows that the VA examiner noted the stressor regarding an incident in Korea in which the Veteran had been on an emergency mission and had tried to verify special orders unsuccessfully. It was noted that he then followed standard procedures and fired. He stated that not even a half second after he fired the lanyard the order not to load came across the radio, but the round had already gone. He stated that when he saw photos of the impact zone he saw a mangled building and body parts in the pictures. He added that the fuse man had also been affected by the incident and later committed suicide. The examiner indicated that this stressor was adequate to support a diagnosis of PTSD that was related to the Veteran's fear of hostile military or terrorist activity. The examiner also indicated that the Veteran experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury or threat to the physical integrity of self or others, and that his response involved intense fear, helplessness, or horror. The examiner stated that the Veteran appeared to meet the criteria for PTSD, and the condition was caused by his claimed stressor which was adequate to support the diagnosis. The Veteran was examined by VA in April 2013. The claims file was reviewed. The examiner opined that the in-service stressor was adequate to support a diagnosis of PTSD, and that the Veteran noted responding to this incident with a sense of helplessness which was an acceptable DSM-IV stressor reaction. It was stated that it was more likely than not that the Veteran experienced, witnessed, or was confronted by 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, and that his response to that event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror; that a claimed stressor specifically including the incident surrounding him seeing a mutilated soldier, was adequate to support a diagnosis of PTSD; and that his symptoms were related to the claimed stressor which supported the PTSD diagnosis. In June 2013, the VA examiner who offered the April 2012 and April 2013 VA opinions provided an additional addendum opinion. The examiner referenced the April 2012 VA examination indicating that the Veteran was diagnosed with PTSD based on the stressor of an incident in Korea when he was on an emergency mission and tried to verify special orders unsuccessfully. He then followed standard procedures and fired, and that not even a half second after he fired the lanyard, the order not to load came across the radio, but the round was already gone. It was noted that when he saw photos of the impact zone he saw mangled building and body parts in the pictures. The Veteran reported seeing the photos made him feel as if he did not do the right thing. He stated that the fuse man was also affected by the incident and later committed suicide. The examiner also noted that during the April 2013 examination, the stressor of seeing a mutilated body of a soldier was the basis for the diagnosis of PTSD. The examiner reported that consultation with the RO revealed that the mutilated body incident had not been verified, and because the Veteran was not in combat, could not be used as a stressor unless verified. The examiner reported that she had also learned that the Veteran did not submit the emergency mission as a stressor initially and that, therefore, the RO could not use this as a stressor. The examiner stated that in light of the above, coupled with a lack of an award accepted as verification of a combat stressor, the PTSD diagnosis was rendered in error, and was retracted and removed. The examiner stated that the Veteran met the criteria for PTSD except that he did not report a verifiable stressor incident. It was reported that because of this, PTSD could not be diagnosed. The concluded that no diagnosis was rendered. In a further addendum, that same day, the examiner indicated that she called the Veteran and informed him that the mutilated body could not be used as a stressor since it had not been verified, and that he would need to submit the emergency mission incident as a stressor event and any supporting documentation for the incident to be considered as a stressor event. As indicated above, the record reflects that the diagnosis of PTSD was based on the Veteran's account of traumatic stressors to include those cited above. The Board reiterates, however, that although the Veteran has a diagnosis of PTSD, a medical opinion diagnosing such does not suffice to prove the occurrence of the claimed in-service stressor. Cohen, 10 Vet. App. at 142; Moreau, 9 Vet. App. at 395-396. Although it is well established that it is the province of trained health care providers to enter conclusions that require medical expertise such as opinions as to diagnosis and causation (See e.g. Jones v. Brown, 7 Vet. App. 134, 137 (1994)), it is the Board's responsibility to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood, 1 Vet. App. at 192-93). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. The credibility and weight to be attached to medical opinions are within the province of the Board.). Just because a physician or other health professional accepted an appellant's description of his experiences as credible and diagnosed appellant as suffering from PTSD does not mean the Board is required to grant service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Credible supporting evidence that the claimed in-service stressor actually occurred means that there is a legal standard that must be met, and the Veteran's report of the incident must be supported by service or civilian documentation of the incident, or, if that is not available, there must be other evidence that would lead to the reasonable conclusion that the incident occurred. See Cohen, 10 Vet. App. at 142. The Board is not required to accept a Veteran's uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Wood, 1 Vet. App. at 192. The Board points out in this instance that while the evidence does indeed find that the Veteran meets the criteria for PTSD, it is shown that the diagnosis was clearly predicated on unsubstantiated in-service stressors. Here, the VA examiner has subsequently retracted her opinion regarding PTSD related to service based on the fact that the reported in-service stressors had not been verified. The diagnoses of PTSD in the record are based on the Veteran's unsubstantiated stressors and are of limited probative value. While the depiction of the reported in-service stressors and their aftermath are noted, despite many attempts to do so, they are not corroborated to any extent by the official record. As such, the claimed stressors are not confirmed. The Board has considered the Veteran's lay statements in support of the claim. See Layno, 6 Vet. App. at 470. However, it is not required to accept a Veteran's uncorroborated account of his active duty experiences to support a diagnosis of PTSD. See Wood, 1 Vet. App. at 192. As there is no credible supporting evidence other than the Veteran's own statements that the alleged in-service, non-combat-related stressors occurred, and to the extent that the diagnosis of PTSD is predicated on the alleged in-service, non-combat-related stressors, the Board cannot accept the diagnosis of PTSD as it is not in accordance with 38 C.F.R. § 3.304(f). Thus, a legal requirement for establishing service connection for PTSD is not met. The diagnosis of PTSD was based on the Veteran's unverified allegations, and as such it cannot serve to verify that the stressful incident had occurred. Because the current diagnosis of PTSD is not predicated on independent and credible supporting evidence that the alleged in-service, non-combat-related stressors occurred, the second element of 38 C.F.R. § 3.303(f) is not met, and service connection for PTSD cannot be established. See Shedden, 381 F.3d at 1167 (if the Veteran fails to demonstrate any one of the elements for a grant of PTSD, including, a verified in-service stressor event, denial of service connection will result). In summary, the Board concludes that the record does not demonstrate the criteria for a grant of service connection for PTSD. There is no credible supporting evidence substantiating the stressors the Veteran reports. Absent credible supporting evidence corroborating the claimed stressors, the regulatory criteria for a grant of service connection for PTSD have not been met, and service connection must be denied. The Board reiterates that service connection has been established for depression, thus, discussion of any psychiatric disorder other than PTSD is not for consideration. As the preponderance of the evidence is against the claim, service connection PTSD must be denied. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER Service connection for PTSD is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs