Citation NR: 9615393 Decision Date: 05/31/96 Archive Date: 06/12/96 DOCKET NO. 93-17 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Julia M. Beach, Associate Counsel INTRODUCTION The veteran had active service from May 1953 to August 1961. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a November 1992 rating decision of the St. Louis, Missouri, Regional Office (RO) which denied entitlement to service connection for post-traumatic stress disorder. This case was previously before the Bord in June 1995 when it was remanded for further development. The veteran is represented in his appeal by Disabled American Veterans. The Board notes that in the informal hearing presentation, dated in May 1996, the veteran’s accredited representative stated that there was an inextricably intertwined issue regarding a cardiovascular problem caused by the veteran’s post-traumatic stress disorder/stress. However, this claim was already referred to the RO and the veteran did not respond to correspondence from the RO regarding such a claim. No further action is necessary. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to service connection for post-traumatic stress disorder. He contends that he was in service from May 1951 to May 1961, that he saw action in Korea from December 1952 to June 1953, that he took part in major actions in the “Mamaso and Papaso Mountains” in late 1952 and early 1953, in the “Froozen Choosen Operation” in early 1953, in Yalu River (to clear and resupply 1st Marines) in mid 1953, and that he was security for the peace treaty signing at “Moon Sonie” in May 1953. He contends that his stressors consisted of seeing all the dead and wounded of both sides and, in particular, of bodies without faces. He stated that he could not recall names after so many years but could still recall their faces. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for post-traumatic stress disorder is well-grounded. FINDINGS OF FACT 1. There is no competent evidence establishing the presence of post-traumatic stress disorder. 2. The veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for post-traumatic stress disorder is well-grounded. CONCLUSION OF LAW The claim for entitlement to service connection for post- traumatic stress disorder is not well-grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The United States Court of Veterans Appeals (Court) has held that: A veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. See 38 U.S.C.A. § 5107(a) (West 1991). See Tirpak v. Derwinski, 2 Vet.App. 609, 610- 611 (1992). If a claim is not well- grounded, the Board does not have jurisdiction to adjudicate that claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). The Court has clarified that: Because a claim is neither defined by the statute nor by the legislative history, it must be given a common sense construction. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 3007(a) [presently enacted as 38 U.S.C.A. § 5107(a) (West 1991)]. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or other similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1995). In West v. Brown, 7 Vet.App. 70 (1994), the Court set forth a framework for the analysis of claims for service connection for post-traumatic stress disorder. This involves an initial determination of whether the veteran was engaged in combat and whether any of the alleged stressors occurred during combat. If the veteran was engaged in combat and the claimed stressors are related to combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence. Where the veteran did not engage in combat with the enemy or the claimed stressor is not related to such combat, the veteran's lay testimony by itself, will not be enough to establish the occurrence of the alleged stressor. It must then be determined whether the testimony as to the claimed stressor is corroborated sufficiently by service records to establish the occurrence of the claimed stressful events. Finally, it must be determined whether the claimed events are sufficient stressors to support a diagnosis of post-traumatic stress disorder. A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992); see also Brammer v. Derwinski, 3 Vet.App. 223, 225 (1995) (absent “proof of a present disability there can be no valid claim”). Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded requirement of 38 U.S.C.A. § 5107(a). See Lathan v. Brown, 7 Vet.App. 359, 365 (1995) (citing Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); see also Moray v. Brown, 5 Vet.App. 211, 214 (1993) (lay persons are not competent to offer medical opinions and, therefore, those opinions cannot serve as the basis for a well-grounded claim); Espiritu v. Derwinski, 2 Vet.App. 492, 494-495 (1992). Assuming the presence of a clear diagnosis of PTSD, the earlier diagnoses of post-traumatic stress disorder are not supportable by the evidence of a stressor. The diagnoses were based upon a history given by the veteran of having served in Korea from late 1952 to mid 1953, of having been security for the peace treaty signing at “Moon Sonie” in May 1953, of having been a combat engineer, and of having participated in combat and several campaigns. The veteran’s service has been repeatedly verified and does not reveal service prior to May 14, 1953. In late April 1953, the veteran was undergoing an enlistment examination in Phoenix, Arizona, and in May 1953, was stationed at Fort Ord, California. The veteran’s service personnel records reveal that he was not a combat engineer, but that his principal duties were construction helper, cooks helper, cook, and wireman, and that he did not participate in combat or any of the listed campaigns. The Board has considered the veteran’s assertion that his DD 214 shows that he was not recommended for further service and that this shows that he had a problem in service with post- traumatic stress disorder. The Board has reviewed the veteran’s service personnel records and note that they confirm that it was noted that he was not recommended for further service. However, no specific reason was given although a review of his service record shows that the veteran never attained a grade higher than E-3 and that he was continually promoted and reduced at various times during his service and was grade E-2 at discharge after eight years of service. The Secretary may establish rules of evidence. Duro v. Brown, 2 Vet.App.530 (1992). Title 38 C.F.R. § 3.304(f) falls within a rule of evidence. In this regard, the Court has noted: When a veteran seeks service connection for a disability, the RO is required to analyze and evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran’s military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a) (1993). With respect to injuries or disabilities incurred in or aggravated during combat, including psychiatric disabilities, the Secretary is required to accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by service “satisfactory lay or other evidence of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service,” and the Secretary is required to resolve every reasonable doubt in favor of the veteran. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d) (1993); see Zarycki v. Brown, 6 Vet.App. 91 (1993); Hayes v. Brown, 5 Vet.App. at 66. The VA’s regulation dealing with PTSD is more specific: Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1993) (emphasis added); see Zarycki, 6 Vet.App. at 97. Thus, under the governing statutory and regulatory provisions regarding claims for service connection for PTSD, if the claimed stressor is not combat-related, appellant’s lay testimony regarding in- service stressors is insufficient to establish the occurrence of the stressor and must be corroborated by “credible supporting evidence.” Id. There is nothing in the statute or the regulations which provides that corroboration must, and can only, be found in service records. The possible inconsistency between the statutory and regulatory law and the M21- 1 provisions is created by the language of M21-1, Part VI, para. 7.46(f) (Dec. 21, 1992.) (Although the referenced M21-1 provision became effective after the date of appellant’s appeal to this Court, this Court previously has held that the provision is a substantive rule which is “the equivalent of [VA] [r]egulations” and, therefore, the provision is applicable to the instant appeal.) See Hayes, 5 Vet.App. at 67 (citing Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991)). The pertinent language is: “[s]ervice records must support the assertion that the veteran was subjected to a stressor of sufficient gravity to evoke the symptoms in almost anyone.” That sentence allows two interpretations: (1) in order to grant service connection for PTSD, a veteran’s testimony as to the existence of a non-combat-related stressor must be corroborated by the service records; or (2) those service records which are available must support, i.e., must not contradict, the veteran’s lay testimony concerning his non-combat- related stressors. The former interpretation would be considerably more restrictive than the statutory and regulatory provisions articulated above which require the VA to take due account of “all pertinent medical and lay evidence,” 38 U.S.C. § 1154(a), and which require only “credible corroborative evidence,” 38 C.F.R. § 3.304(f). The latter interpretation, on the other hand, is consistent with both the controlling statutory and regulatory provisions and with the unlimited language of the sentence in M21-1, which directly follows the one under scrutiny: “The existence of a recognizable stressor or accumulation of stressors must be supported.” M21-1, Part VI, para. 7.46(f). Following the requirement that we attempt to construe such provisions to promote harmony rather than discord, the latter will be the interpretation applied by the Court. Doran v. Brown, 6 Vet.App. 283 (289). The allegation of a stressor is unsupported and, in fact, contradicted by competent authority. The veteran does not have adequate evidence of a stressor and the claim is inherently not plausible. There is no corroboration by credible supporting evidence and the claim is not well grounded. Doran, at 290. The veteran’s statements, standing alone, do not establish a well grounded claim. The Board acknowledges that it has decided the present appeal on a different basis than the RO did. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. See Bernard v. Brown, 4 Vet.App. 384 (1993). The Board concludes that the veteran has not been prejudiced by the decision herein. The veteran was denied by the regional office. The Board considered the same law and regulations. The Board merely concludes that the veteran did not meet the initial threshold evidentiary requirements of a well grounded claim. The result is the same. ORDER Entitlement to service connection for post-traumatic stress disorder is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -