Citation Nr: 1336848	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  13-15 181	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for post traumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Turner, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from January 1967 to October 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas that denied service connection for PTSD.

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 


FINDING OF FACT

1.  The Veteran did not engage in combat with the enemy, and an in-service stressor has not been otherwise confirmed or verified. 

2.  There is no probative evidence showing that the Veteran has PTSD based on a confirmed service stressor.


CONCLUSION OF LAW

PTSD was not incurred during active service.  38 U.S.C.A. §§ 1101, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Procedural Duties

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for PTSD.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).


A.  Duty to Notify

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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  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.  Compliance with the first element requires notice of the five service connection elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  See 38 U.S.C.A. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  

Specifically, a letter dated March 2012, sent prior to the initial May 2012 rating decision, advised the Veteran of the evidence and information necessary to substantiate a service connection claim for PTSD as well as his and VA's respective responsibilities in obtaining such evidence and information.  Furthermore, a PTSD stressor questionnaire (VA Form 21-0781) was submitted by the Veteran in February 2012 along with his claim.  This form elicited specific information from the Veteran regarding symptoms necessary to establish to substantiate his claimed PTSD stressor.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

B.  Duty to Assist

The Board also concludes VA's duty to assist in obtaining records has been satisfied.  The Veteran's service treatment records and personnel records are in the file.   The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  A medical examination or opinion is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient competent medical evidence to decide the case.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).

The Board concludes an examination is not needed in this case because the only evidence indicating the Veteran "suffered an event, injury or disease in service" is his own lay statements.  The Veteran is not a combat veteran, as discussed below.  In a case involving a non-combat veteran, VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service.  Bardwell v. Shinseki, 24 Vet. App. 36, 39-40 (2010).  A non-combat veteran's lay statements must be weighed against other evidence, including the absence of military records supporting the veteran's lay assertions.  Id., at 40.  As will be discussed below, the Board has found that the Veteran's lay evidence is alone insufficient.  The remaining evidence does not indicate that an in-service event, injury or disease occurred.  Such evidence is insufficient to trigger VA's duty to provide an examination.  Cf. Duenas v. Principi, 18 Vet. App. 512, 517 (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 this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).

II.  Service Connection

The Veteran contends that he has PTSD as a result of service.  For the reasons that follow, the Board finds that the Veteran's stressor has not been corroborated for his PTSD claim.  Service connection is not warranted.

Service connection may be established for a disability resulting from disease or injury incurred by active service.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred during service.  Shedden v. Prinicipi, 381 F.3d 1163, 1167 (Fed. Cir 2004).
Further, to be entitled to service connection for PTSD, the record must generally include the following: (1) medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-stressor.  38 C.F.R. § 3.304(f).  The diagnostic criteria, including those related to stressors, set forth in The American Psychiatric Association : Diagnostic And Statistical Manual Of Mental Disorders, (4th ed. 1994) (DSM-IV) for mental disorders have been adopted by the VA.  38 C.F.R. § 4.125.  According to these criteria, a diagnosis of PTSD requires that a veteran be exposed to a traumatic event, and that he experience a number of specified current symptoms.  The traumatic event, or stressor, involves experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.  In addition, the response must involve intense fear, helplessness, or horror. 

There exist exceptions for stressor verification in specific instances, including stressors related to combat, fear of hostile military or terrorist activity, prisoner-of-war, and in-service personal assault.  38 C.F.R. § 3.304(f).  The Veteran contends that he is entitled to service connection for PTSD as a result of an incident in service when a fellow service member was killed during a vehicle accident.  As such, none of the exceptions apply.

In December 2011, the Veteran received treatment at a VA Medical Center.  The examiner diagnosed the Veteran with chronic PTSD.  The Veteran reported stressors in service as well as relating to his life post-service.  However, the existence of a diagnosis of PTSD that is linked by a clinician to asserted events in service does not establish entitlement to service connection for PTSD unless and until the asserted in-service events are verified or substantiated.  See 38 C.F.R. 3.304(f).  Assuming the Veteran does indeed have a medical diagnosis of PTSD for purposes of 38 C.F.R. § 4.125, the Board turns next to whether there is credible supporting evidence that the claimed in-service stressor occurred.

The stressor described by the Veteran in his February 2012 statement reportedly occurred when he was driving a naval vehicle, which was transporting a fellow service member to the firing range.  During this time, the vehicle reportedly was involved in an accident where it ignited and the passenger was trapped underneath.  The Veteran stated he tried to rescue the passenger by pulling on his arm, but the arm became detached, and the passenger later died from his injuries.

A response provided by the Joint Services Records Research Center (JSRRC) in April 2012 indicated the Veteran gave the name of the reported victim, and stated that the accident occurred on October 31, 1967.  JSRRC reviewed the 1967 command history for the U.S.S. Samuel Gompers and found no record of the incident reported by the Veteran.  Furthermore, the Navy Casualty Assistance Division had no record of the casualty listed by the Veteran, despite numerous attempts to locate the individual under various spellings of the given name.

In a June 2012 statement, the Veteran submitted a corrected spelling of the reported victim's name, and stated that the accident occurred in 1968.

In March 2013, JSRRC responded with an additional report in response to a second request using the corrected spelling of the reported victim's name.  The command history for the years 1968 and 1969 did not include the incident described by the Veteran.  Though there was a serious fire and explosion in 1968, there were no casualties listed.  Again, the Navy Casualty Assistance Division had no record of the casualty listed by the Veteran, despite numerous searches under various spellings of the given name.  

Documents associated with the claims file indicate that a person by the name of the listed victim did serve on the U.S.S. Samuel Gompers in the role indicated by the Veteran; however, there is no indication that the reported victim was ever involved in any accident or that he was killed in service.

Service treatment records associated with the file fail to mention any diagnosis or symptoms of psychiatric disorder.  In fact, the records mention that the Veteran's occupational assignment required reliability, and therefore any behavioral changes should be immediately reported, though none were ever recorded.

In this regard, while "silence" (or a lack of a record) in a service record is not always an indication that the Veteran's recollection of events are defective, the Board finds it unlikely that a United States Navy vessel would not record such significant events as the Veteran has cited above.

There is no probative evidence corroborating the Veteran's account of events.  Official records do no indicate any such accident took place, or that there were any casualties by the name of the reported victim.  As there is no credible supporting evidence that any claimed in-service stressor occurred as described by the Veteran, an essential criterion for establishing service connection for PTSD, the Veteran cannot meet the requirements of 38 C.F.R. § 3.304(f).  Hence, discussion of the remaining criteria for service connection for PTSD set forth in the governing regulation is unnecessary.

In addition, the Board has not considered the Veteran's entitlement to service connection for any other psychiatric disability, as no claims, diagnoses or symptoms were ever noted or mentioned by the Veteran aside from those associated with PTSD.  The Board, therefore, has not recharacterized the PTSD claim to include other psychiatric disorders.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

Accordingly, the claim for service connection for PTSD must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of- the-doubt doctrine.  However, on these facts, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).



ORDER

Entitlement to service connection for PTSD is denied.




____________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs