Citation Nr: 1510813 Decision Date: 03/16/15 Archive Date: 03/27/15 DOCKET NO. 10-24 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1972 to March 1974. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, denied service connection for PTSD and depression (listed as separate issues). The Veteran limited his appeal to only the PTSD issue as indicated on his Form 9 Substantive Appeal. Thus, the only issue before the Board at the present time is the claim for service connection for PTSD. In October 2014, the Veteran testified at hearing held via videoconference before the undersigned Acting Veterans Law Judge (AVLJ); a transcript of the hearing is of record. The Veteran subsequently submitted additional evidence with a waiver of initial agency of original jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1304 (2014). FINDING OF FACT There is no diagnosis of PTSD based on a claimed credible stressor, the Veteran did not engage in combat with the enemy, and there is no credible supporting evidence of the Veteran's alleged in-service stressors. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The VCAA applies to the instant claim. VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify in this case was satisfied by a letter sent to the Veteran in June 2008. The claim was last adjudicated in a March 2013 supplemental statement of the case. Next, as indicated, VA has a duty to assist a claimant in the development of a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this regard, available and pertinent personnel records, post service treatment records, and records from the Social Security Administration have been obtained and associated with the file. The Veteran was also given an opportunity to testify before the undersigned. During the October 2014 hearing, the AVLJ clarified the issue on appeal, elicited relevant testimony (e.g., stressor statements), identified any evidentiary deficits, and suggested the submission of additional evidence to support the Veteran's claim. The AVLJ also left the record open for submission of additional evidence. The actions of the AVLJ supplement VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. In the context of a PTSD claim, the duty to assist involves assisting the Veteran in providing relevant information to help verify the claimed in-service stressors. The Veteran submitted a VA Form 21-0781 (Statement in Support of Claim for PTSD) and supporting statements in May 2008. The June 2008 VCAA letter asked him for clarifying and specific information regarding his alleged stressors. The VCAA letter informed of the types of information that is helpful and necessary in this regard. An April 2009 RO memorandum indicated that there was insufficient information to forward to the U.S. Army and Joint Services Records Research Center (JSRRC) or any other service department for further verification of these alleged stressors. As a result, the Veteran was reminded of how to substantiate his PTSD claim in February 2009 and August 2009 letters. The Veteran then resubmitted VA Form 21-0781 in July and October 2009. In October 2009, based upon the Veteran's newly submitted forms, the RO determined that there was still insufficient stressor information for further meaningful development to be conducted. The Veteran submitted numerous written statements with respect to his alleged stressors. Again, in June 2010, the RO determined that the evidence received to date lacked specific details that would allow for a meaningful search of records. The Veteran continued to submit similar statements and provided testimony as to his stressors. Such statements are cumulative of the evidence he has already provided which has been reviewed by the RO in connection with stressor verification attempts. The Board notes a July 2010 statement from the Veteran in which he states that he "can't give . . . the exact dates, times, nor places . . . but what [he] saw and experience[d] was real." The Board concludes at this juncture that VA has provided the Veteran with numerous opportunities to produce additional evidence in support of his claim, and each time, diligent efforts were made to communicate with the Veteran as to informing him of the types of information that would aid in verification of his stressor. To date, the Veteran has not been able to submit evidence that warrants further verification through official sources. As VA has documented, any further attempts would be futile. Thus, the Board finds that all relevant evidence has been obtained with regard to the Veteran's claim of service connection for PTSD. Therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran and his representative have submitted evidence and argument in support of the Veteran's claim and were active participants in the claims process. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Pertinent Law and Analysis As an initial matter, the Board notes that the evidence does not suggest that the Veteran engaged in combat with the enemy or that his claimed PTSD is related to combat. In any event, the Veteran's service personnel records and DD Form 214 do not reflect that he received any medals indicating combat service. Thus, the combat provisions of 38 U.S.C.A. § 1154 are not applicable in this case. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2014). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) in addition to those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD in conformance with established criteria; (2) a link, established by medical evidence, between a veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. See 38 C.F.R. §§ 3.304(f), 4.125 (requiring PTSD diagnoses to conform to the criteria in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV)); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). A veteran must present "credible supporting evidence" establishing the occurrence of a recognizable stressor during service. See 38 C.F.R. § 3.304(f). The evidence necessary to establish this element varies depending on whether the veteran "engaged in combat with the enemy." West v. Brown, 7 Vet. App. 70, 76 (1994). 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. 38 C.F.R. § 3.304(f)(3). If a claimed stressor is not related to combat or fear of hostile or military activity, a veteran's lay statements alone are not sufficient to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, the record must contain service records or other corroborative evidence substantiating the veteran's testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Board need not accept a non-combat veteran's lay statements asserting that an event (as opposed to medical symptoms) actually occurred, even though there is no "affirmative documentary evidence provid[ing] otherwise." Rather, all the evidence of record, including the absence of documentation in the military records, must be weighed in determining whether an event actually occurred. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010); compare Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (finding that it was impermissible for the Board to find a veteran's lay statements regarding his medical symptoms not credible merely because there was no "confirmatory medical evidence"). 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")). A "veteran is given the 'benefit of the doubt' 'regarding any issue material' to the veteran's claim 'when there is an approximate balance of positive and negative evidence.'" Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). In making all determinations, the Board must also fully consider the lay assertions of record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). 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, 511 (1995). In the present case, the Board finds that the weight of the probative evidence is against the claim of service connection, for the reasons set out below. The Veteran avers that he has PTSD related to stressful and traumatic events in service. Specifically, the Veteran claims the following stressors: (1) three named sergeants pulled Marines out of swamps after drowning them. The same sergeants and other drill instructors "ran this guy crazy" (along with general statements of abuse of Marines by other Marines). The named Marine (alleged victim of abuse) was said to be discharged; (2) the Veteran witnessed the shooting of another Marine in the leg; he named the one who did the shooting; and most significantly, (3) the Veteran was the tank commander of the tank that ran over an Okinawan woman during training. The Veteran stated that the last stressor was the reason that he sought psychiatric help in service. The service records do not corroborate these incidents nor is it shown that the Veteran sought psychiatric help in service due to experiencing any of the aforementioned events. Of note, the Veteran testified that he only sought psychiatric treatment once during service. The available service records do reflect that the Veteran, in October 1972, was sent in for a psychiatric evaluation. The record notes that he had seen the chaplain on a few occasions concerning thoughts of suicide. On further questioning, it was apparent that the Veteran never actually attempted suicide. It was indicated that the only reason for considering it was to help his disabled mother financially. He stated that he was unable to support her by himself on his "small wages." No other serious problems were documented. The physician's impression was "immature personality." Further psychiatric evaluation was not necessary. An October 1973 "RAD" examination indicated normal psychiatric status. As aforementioned, the Veteran has been shown to be a non-combat Veteran as there is no evidence that the Veteran actually engaged in combat with the enemy. Thus, as a non-combat Veteran, a veteran's lay statements alone are not sufficient to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, the record must contain service records or other corroborative evidence substantiating the veteran's testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The question of whether the Veteran was exposed to a stressor in service under these facts is a factual one and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991). Whether a claimed stressor is of sufficient gravity to cause or support a diagnosis of PTSD is a decision that is medical in nature. Whether a claimed stressor actually occurred is a question of fact for adjudicators. In this case, the outcome turns on the latter - whether there is credible supporting evidence of a stressor. Thus, as will be explained, any of the post-service diagnoses of PTSD based upon the Veteran's self-reported stressors cannot substantiate the claim. The Board has carefully considered the Veteran's written submissions and oral testimony with respect to his alleged stressors. However, the Board finds that the Veteran's stressor statements are not credible and the record does not include the required corroboration of any stressors. While the Veteran states that he sought psychiatric help in service, after being affected by the sight of the remains of an Okinawan woman after she was run over by his tank, the service records show that the Veteran actually sought psychiatric treatment stating that he considered suicide in order to assist his mother financially; there were no other serious problems noted. See Caluza, 7 Vet. App. at 511. The conflict between the Veteran's current assertions and his statements at the time he sought psychiatric treatment call his credibility into question. Of note, the next documentation of record for psychiatric treatment is from 2002 where the Veteran's stressors for his psychiatric problems were due to lack of employment and family conflict. Although he did respond to a questionnaire that he saw someone killed, it was not specified at this point where he witnessed such event and when. After filing his claim for PTSD in 2008, the Veteran comes forward with additional stressor verification details through various statements, but was unable to provide the necessary information that would result in a meaningful VA research for verification. Each time, the Veteran submitted his stressor questionnaire, he provided additional details, e.g., names of sergeants who allegedly abused Marines, location, and a date range. Yet, even with this information, the Board concludes that efforts to attempt verification through official sources would not be fruitful. With respect to the Okinawan woman incident, the Veteran testified that he was the tank commander of the vehicle that ran her over. He further stated that he was never investigated or questioned regarding this event. See Bd. Hrg. Tr. at 5. He has not named other eye witnesses to this event who can corroborate this information. Thus, further research by official sources would not likely yield a productive result. As for the Marine shooting incident, the Veteran was unable to provide the name of the Marine who was shot (although he provided the last name of the person who allegedly did the shooting). He was given ample opportunities to provide other corroborating evidence that would assist in development of this detail. The Board also finds it highly unlikely that based on the generalized statements of the Veteran regarding the abuse of power by sergeants and other Marines to his fellow Marines, even with the name of the Marine who was later discharged, that the allegations of abuse could be corroborated. This type of information is too broad and generic in nature to forward to official sources with expectation of a fruitful response. There are no other statements from eye witnesses to these events who can assist in corroborating the details. As noted, the Veteran's own statements are not sufficient to verify a non-combat stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Board is not required to accept an appellant's uncorroborated account of his service experiences. Wood, 1 Vet. App. 190. The record does not contain a PTSD diagnosis that is based upon consideration of a credible stressor, and without a credible, verified stressor in this case, the Veteran fails to meet the criteria for establishing service connection for PTSD. See 38 C.F.R. § 3.304(f); Cohen, 10 Vet. App. at 139. With regard to the recent amendment codified at 38 C.F.R. § 3.304(f)(3), no VA or other psychiatrist or psychologist has confirmed that a stressor claimed by the Veteran is related to his fear of hostile military or terrorist activity. As there is no diagnosis of PTSD based on fear of hostile military or terrorist activity, 38 C.F.R. § 3.304(f)(3) is inapplicable. In sum, the evidence does not reflect that the Veteran has a valid diagnosis of PTSD based on any credible or corroborated stressors or based on fear of hostile military or terrorist activity. Accordingly, service connection for PTSD must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan, 573 F. 3d at 1289. ORDER Service connection for PTSD is denied. ____________________________________________ Nathan Kroes Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs