Citation Nr: 1416632 Decision Date: 04/15/14 Archive Date: 04/24/14 DOCKET NO. 11-08 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from October 1967 to June 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. 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 The Veteran's diagnosis of PTSD is not based upon a corroborated stressor, he did not serve in combat, and his stressor was not based on fear of hostile military or terrorist activity. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. To establish service connection for PTSD the evidence must satisfy three basic elements. There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than a veteran's service records may corroborate a veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f). If the evidence establishes 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) . 38 C.F.R. § 3.304(f) also eliminates the requirement that a stressor be corroborated when the claimed noncombat in-service stressor is related to a Veteran's fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304(f)(3). However, the Federal Circuit, in Hall v. Shinseki, 717 F.3d 1369 (2013), explained that this provision does not cover situations such as abuse by military personnel of subordinate military personnel, harassment, suicide of a fellow service member, or a fellow soldier's or sailor's post-service suicide, etc. 75 Fed. Reg. at 39845. As such, this amendment is inapplicable to the Veteran's case. In Hall, the Federal Circuit also once again affirmed that when a reported stressor is not related to either combat or the fear of hostile military or terrorist activity, then a Veteran's statements and testimony alone are not considered to be sufficient to establish the occurrence of a claimed in-service stressor. This is the case here. As will be discussed in greater detail below, the Veteran has been diagnosed with PTSD, but he never served in combat, was not diagnosed with PTSD on active duty, and his stressor does not relate to the fear of hostile military or terrorist activity. As such, his statements and testimony alone are not considered to be sufficient to establish the occurrence of a claimed in-service stressor, but rather must be corroborated by credible supporting evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997). The Veteran believes that he has PTSD as a result of allegedly witnessing a prison guard accidentally shoot himself while he was incarcerated during service. Specifically, at his December 2012 Board hearing the Veteran testified that he was sentenced to serve a period of 90 days at Fort Polk, Louisiana for having gone AWOL. The Veteran testified that he was assigned to work details on some days during which he and other prisoners, accompanied by a guard, would be sent to perform manual labor outside of the stockade. The Veteran reported that on one morning in what he believes was May 1968 he and three other prisoners were assigned to a work detail with a guard named Jones. The Veteran said they worked that morning, returned to the stockade for lunch, and then went back out again in the afternoon. While they were out, the Veteran testified he saw the guard taking a round in and out of his shotgun and otherwise playing with his gun. In the afternoon when the prisoners were preparing to get back in the truck to return to the stockade, the Veteran said the guard, who allegedly had the shotgun resting under his chin, shot himself. The Veteran, who reported that he was standing nearby when the gun went off, said he believed it was accidental. When the group failed to return to the stockade, the Veteran testified other guards came looking for them and discovered the scene. He reported he and the other prisoners were shackled and he was hit with the butt of a gun as the guards demanded to know what had happened. He reported they were returned to the stockade, separated, and the interrogated by criminal investigation division (CID) investigators who reportedly took wax molds of his hands. The Veteran said they next thing he knew he was being honorably discharged even though he had not completed his 90 day sentenced. He reported the three other men who were with him on the work detail on the day of the shooting were also discharged at the same time. The Veteran's personnel records show that he underwent a separation medical examination on May 20, 1968 and was administratively discharged under honorable conditions on June 7, 1968 along with three other men, prior to the expiration of his 90-day sentence. VA has undertaken repeated efforts, but has been unable to corroborate a shooting death at Fort Polk. The RO first contacted the Center for Unit Records Research (CURR). CURR coordinated research with the National Archives and Records Administration. There were no records maintained for the Veteran's unit. The United States Military Casualty reports were reviewed, but while three soldiers with the last name of Jones died, they all died in March and April of 1968, and none were shown to have died of self-inflicted wounds. As such, this does not establish that a guard named Jones was killed in May 1968 as the Veteran alleges. The Veteran has provided information about this alleged shooting on several occasions. He submitted a stressor statement in June 2008 in which he asserted that the alleged incident occurred in May 1968. Likewise, at his hearing before the Board in December 2012, he again asserted that the death occurred in May 1968. Unfortunately, as noted by the CURR research there was no record of a soldier with the last name of Jones being killed in May 1968. VA also sought assistance from the CID at Fort Polk, but a response was received in September 2009 that there were no records of any person named "Jones" having died between May and July 1968. The Veteran has presented additional evidence which he asserts should be sufficient to corroborate his stressor. For example, the Veteran has consistently indicated that he was on a work detail with three other prisoners. In his stressor statement, the Veteran indicated that he could not remember the names of the other three prisoners. The Veteran subsequently received a copy of his discharge record from Fort Polk with listed three other soldiers on June 5, 1968, which he then asserted was a list of the people who witnessed that accident. However, the mere fact that the Veteran was discharged from Fort Polk at the same time as three other soldiers does not establish that four people witnessed an accidental gun death. In December 2012, the Veteran testified at a hearing before the Board. He was asked when the incident took place, to which he said it was on a Monday. He was not sure whether it was the 7th or 15th. Several minutes later, he suggested that it was the 8th or 10th of May. Of note, none of the four dates were on a Monday, the dates comprise a Tuesday, two Wednesdays, and a Friday. The Board recognizes that the Veteran he attempting to recall an event that occurred decades ago, but the fact remains that the details he provides do matter, as there is no other evidence in the Veteran's claims file to corroborate his statements. The Veteran was asked if he had any medical physicals in service, to which he replied that he thought they had sent him to a psychiatrist. There is a record of the Veteran being seen by the mental hygiene clinic at Fort Polk on April 29, 1968 at which time the Veteran reported that he had been in the Army for about six months and had not completed basic training. The Veteran stated that he did not like the service and that he had no intention of returning to duty. The medical officer noted that the Veteran was free from mental defect, disease or derangement and was mentally responsible. The Veteran was found to have the capacity to understand the nature of board and judicial proceedings and to cooperate in his own defense. Of note in his testimony at a DRO hearing, the Veteran reported that he was told that he was going to be discharged honorably to which he reported replying that he wanted to stay in and that he had learned his lesson about going AWOL. However, such a statement is entirely incongruous with his assertion to the medical officer that he did not like the service and had no intention of returning. The Veteran also the Veteran underwent a VA examination on May 20, 1968 which made no mention of any shooting incident. The Veteran also completed a medical history survey completed on May 20, 1968, indicating that he had experienced mumps, tooth problems, chest pain, a history of broken bones and foot trouble. However, the Veteran specifically denied any psychiatric impairment. Of note, while the Veteran testified that he did not recall undergoing any separation physical, he clearly signed both documents. The Veteran's service personnel records show that he was convicted at a special court martial of having been AWOL on two occasions between January and March 1968. The Veteran was sentenced to three months of hard labor. His sentence commenced April 5. The Veteran was discharged June 4, 1968. The Veteran's representative has argued that there was no reason to discharge the Veteran prior to his 90 days, but the Board does not find any notation that such an early release was irregular, and the psychiatrist had found that the Veteran's impairment for further military duty was marked, suggesting that there was little interest on the part of the military in retaining the Veteran. As such, the early release alone is not taken as corroboration of the Veteran's reported stressor. As described, a reported stressor has not been corroborated, and therefore the criteria for service connection for PTSD have not been met. Accordingly, the Veteran's claim for service connection for PTSD is denied. The inquiry does not end here, as the Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Thus, a claim for PTSD must be adjudicated as a claim for service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Veteran has been diagnosed with several Axis I psychiatric disorders other than PTSD, including alcohol dependence, and depression. However, the evidence does not suggest that they either began during or were otherwise caused by his military service. As noted, the psychiatric evaluation in service found the Veteran's to be free from any mental defect, disease or derangement. Service treatment records similarly do not document any psychiatric impairment, and the Veteran himself denied any psychiatric symptomatology, to include nervous trouble and depression on his medical history survey completed in conjunction with his separation physical. No psychiatric impairment was noted on the separation physical. Following service, there is no indication of any psychiatric impairment for a number of years. The Veteran has also not alleged the onset of any psychiatric impairment for many years, other than PTSD. As such, service connection for an acquired psychiatric disorder, other than PTSD, is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, all notice duties have been met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, service personnel records, and VA treatment records have all been obtained. Additionally, the Veteran and his ex-wife both testified at a hearing before the Board and at a DRO hearing. 38 C.F.R. 3.103(c)(2) requires that the RO official or Acting Veterans Law Judge (AVLJ) who conducts a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the December 2012 Board hearing, the AVLJ explained that information was necessary to establish service connection for PTSD, such as corroborating a reported stressor, and the facts of the Veteran's reported stressor were discussed. Moreover, the Veteran's representative and the AVLJ asked specific questions directed at identifying the Veteran's reported stressors which is the principal area of contention in this case. Accordingly, the Veteran is not shown to be prejudiced on this basis. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2). While a VA medical opinion was not provided in this case, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). As discussed, the Veteran's claim fails here not because he has not been diagnosed with PTSD, but because the record fails to corroborate a reported stressor upon which to base the PTSD diagnosis. Moreover, several VA medical professionals have treated the Veteran for his psychiatric complaints, but as noted their diagnoses are based solely upon uncorroborated stressors. An examination could not corroborate that these non-combat stressors occurred. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs