Citation NR: 9630263 Decision Date: 10/24/96 Archive Date: 11/08/96 DOCKET NO. 94-25 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of a gunshot wound to the right thigh. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Debbie A. Riffe, Associate Counsel INTRODUCTION The veteran had active service from June 1964 to June 1967. This appeal arises from a July 1991 rating action of the Buffalo, New York Regional Office (RO), which denied service connection for PTSD and residuals of a gunshot wound to the right thigh. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection for PTSD and residuals of a gunshot wound is warranted. He states that he has been treated for and diagnosed with PTSD numerous times. He relates his Vietnam stressors as (1) witnessing a fellow soldier getting blown up by a bomb, and (2) awakening to find that he had set up camp in a Vietnamese graveyard. The veteran also claims that he received a bullet wound in Vietnam during a surprise attack. At the time, he did not realize that he had been shot, and a medic who treated him told him that a twig had pierced his leg. He states that he did not know that he was wounded by a bullet until a VA x-ray in 1986 revealed a retained fragment in his right thigh. The veteran contends that the Department of the Army lost his service medical records relating to service in Vietnam. 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 preponderance of the evidence is against the veteran’s claim for service connection for PTSD, and the claim for service connection for residuals of a gunshot wound is not well grounded and must be denied. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the veteran’s appeal regarding entitlement to service connection for PTSD has been obtained by the RO. 2. The veteran was not engaged in combat during his service in Vietnam. 3. Objective demonstration of an inservice stressor has not been shown. 4. The veteran does not currently suffer from PTSD as a result of his wartime experiences in Vietnam. 5. The veteran’s claim for service connection for residuals of a gunshot wound to the right thigh is not accompanied by any medical evidence to show that current residuals of a gunshot wound to the right thigh are related to service. 6. The claim for service connection for residuals of a gunshot wound to the right thigh is not plausible. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 1991 & Supp. 1995); 38 C.F.R. § 3.304 (1995). 2. The veteran’s claim for entitlement to service connection for residuals of a gunshot wound to the right thigh is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran’s service medical records do not show any complaints, treatment, or diagnosis of PTSD or a gunshot wound to the right thigh. The veteran was noted to be psychiatrically normal on both his enlistment examination in June 1964 and his separation examination in April 1967. His lower extremities were noted to be normal on both enlistment and separation examinations, and there were no scars indicated. On an enlistment examination for the Army National Guard in August 1979, the veteran was clinically evaluated as normal psychiatrically and in regard to his lower extremities. Tattoos were noted on the veteran’s left arm, but no scars were indicated. On an Application for Compensation or Pension received in August 1980, the veteran claimed emotional disorders as a disability. To support his claim, the veteran submitted an October 1979 discharge summary from Erie County Medical Center. On examination, there was a right thigh scar, secondary to a gunshot wound. An October 1980 medical statement from A. Diji, M.D., included a diagnosis of severe emotional disorders. A November 1980 VA examination report included a diagnosis of chronic alcoholic addiction. A March 1990 VA outpatient treatment record indicates that the veteran was feeling anxious about entering into a PTSD program in April. In an October 1990 statement, the veteran indicated that he served from April 1966 to July 1966 in Vietnam with Hqs. and A Co., 2/503 Inf., 173rd Airborne brigade. He stated that he repeatedly had nightmares of “Charles or Charlie I’m not really sure” who was injured and later died from a land mine explosion when they were on patrol. The veteran indicated that he witnessed the “bloody mess” and that he still could see the individual’s eyes staring into his. Another traumatic experience he related about Vietnam occurred during Operation Hardihood. The veteran indicated that his unit dug foxholes one night and that in the morning they realized that their position was in the middle of a Vietnamese graveyard with decomposing skeletons partially dug up around them. After Vietnam, he became emotionless, abusive, and violent. He could not sleep through the night without flashbacks. He stated that he found it hard to deal with people; that he avoided crowds; that firecrackers caused unusual startle responses in him, as if he were back in Vietnam; that relationships had become nonexistent; and that he felt detached and alone even in a crowd. In November 1990, the RO requested by letter that the veteran submit detailed information concerning inservice stressors which he believed had caused his present condition and the names and addresses of hospitals and/or doctors who have treated him for a nervous problem since his discharge from service. In March 1991, VA medical records, dated from February 1990 to March 1991 were received. On a clinical record from a hospitalization from February 1990 to March 1990, the veteran indicated that he had combat experience while in the Army. A September 1990 medical certificate indicates that the veteran requested treatment for PTSD. The diagnosis was PTSD. On an April 1990 VA hospital record, the veteran complained of anxiety, sleep disturbance, and intrusive thoughts. The doctor stated that the veteran was discharged for violation of the program rules regarding substance abuse. The diagnoses included chronic PTSD. On VA examination in April 1991, a bullet wound (Vietnam) was noted in the right upper anterior thigh. The bullet was still embedded in the upper thigh muscles. A small gunshot wound scar, 1.5 by 1.0 cm., was noted to be well healed and nontender. There was no significant tissue loss noted. The diagnoses included gunshot wound to the right thigh, with retained fragment. On a May 1991 Social Work Service Report, the veteran reported that he was sent to Vietnam in November 1966 and that his first combat experience was “unreal”. The veteran recalled that on one combat maneuver he awakened to discover that he was laying in the middle of a mine. The veteran described another traumatic experience in which he witnessed a fellow squad member, “Charley,” getting blown up by a mine explosion. Another putative stressor occurred during Operation Hardihood when he was dropped off by helicopter under cover of night and told to dig in. At dawn, he realized that he was positioned in a Vietnamese graveyard, with decomposing bodies apparent around him. He reported that his nightmares escalated from that time. The veteran reported that when returned home in June 1967 his wife noticed changes in him. He had fits of rage and behaved in an abusive manner. He separated from his wife. His substance abuse, which began in Vietnam, continued. In the summary of the report, the examiner noted that it was questionable whether the veteran would be able to maintain full-time gainful employment due to substance abuse history, masking of PTSD traits, and difficulty in dealing with authority figures. It was noted that with a decrease in substance abuse, PTSD traits had surfaced, to include difficulty in concentrating, an increase in irritability, sleep disturbances, and feelings of detachment and guilt. On VA examination in June 1991, the veteran reported having flashbacks four to five times a month and feelings that he was in the war again. The veteran believed that Vietnam made him “so bad” that his wife divorced him. He had very little contact with his children, for which he blamed Vietnam. On mental status examination, he was cooperative and had little eye contact. He was very anxious and nervous. The examiner felt that he might be high on drugs or that he might be drinking. The veteran was coherent and relevant. There were no delusions or hallucinations. He blamed everybody for his problems. There were some thoughts of hopelessness. The veteran was oriented to time, place, and person, and his cognitive functions were fair. Insight and judgment were poor. The assessment included PTSD. In June 1991, the veteran’s DA-Form 20, Enlisted Qualification Record, and duty assignment records were received. The records show that he was in Vietnam from May 1966 to July 1966. His military occupational specialty (MOS) during his tour of duty in Vietnam was a wireman. The veteran’s awards include the Parachute Badge, National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Good Conduct Medal, and the Army Commendation Medal. By rating action in July 1991, the RO denied service connection for PTSD and residuals of a gunshot wound to the right thigh on the basis that the veteran’s claimed inservice stressors were insufficient to support a diagnosis of PTSD and that there was no clinical or administrative evidence concerning a claimed gunshot wound in service. In September 1991, VA clinical records, dated in October 1990 and December 1990, and a VA x-ray report, dated in May 1986, were received. The clinical records indicate that the veteran was hospitalized from September 1990 to October 1990 with a diagnosis of PTSD. He was treated for PTSD during hospitalization from May 1985 to June 1985. The x-ray report indicates an impression of a retained bullet in the soft tissues of the right thigh. In June 1992, a VA discharge summary, indicating that the veteran was hospitalized from April 1992 to May 1992, was received. It was noted that the veteran had had three episodes in the past related to PTSD. On mental status examination, the veteran was well groomed, and his expression was animated and appropriate. He maintained eye contact, and his speech was clear, spontaneous, and appropriate. His mood was slightly depressed and his thought, form, and content were normal. The veteran’s cognitive function and memory were intact. There was no pathology in perception. The diagnoses included PTSD (Axis I) and bullet in right thigh (Axis III). In September 1992, a statement from a fellow soldier was received. The individual indicated that he served with the veteran in Vietnam and came into contact with the veteran during Operation Silver City. During the operation, they came under heavy fire and the veteran was injured in the leg or thigh. He indicated that a field medic wrapped the veteran’s leg, and he continued to fight. He remembered the veteran because the veteran was assigned to his unit, the 2/503, 173rd Airborne Brigade. In November 1992, a certified copy of the award of the veteran’s Army Commendation Medal was received. The veteran was awarded the medal because he saved a fellow serviceman’s life while traveling as a passenger on a bus from New Jersey to New York. In August 1993, a letter from the veteran to his senator was received. The veteran indicated that he was sent to Vietnam in February 1966 and that he was involved in Operation Silver City when he was shot in the upper right thigh. He stated that at the time he thought he had stabbed himself in the leg with a stick. He stated that the medic who treated him also did not know that he had been shot. The veteran indicated that the wound healed over a few days and that he thought no more about it. When the bullet was discovered by the VA during a routine x-ray in 1985, he instantly remembered how it occurred. In August 1993, a VA discharge summary, indicating that the veteran was hospitalized from January 1993 to June 1993, was received. It was noted that the veteran was initially treated as an inpatient for PTSD in 1990. It was indicated that the veteran had the traumatic experience of witnessing the death of his sergeant from a mine explosion. He had a long history of symptoms, including nightmares, intrusive thoughts, isolation, rage, anxiety, and depression. On mental status examination, the veteran was somewhat nervous with halting speech. His mood was mildly anxious. His affect was serious, and he did not exhibit the full range of affect. He denied suicidal or homicidal ideation. There was no evidence of psychotic thinking, but he felt suspicious at times. There was no paranoid ideation, and his memory was intact. His insight and judgment were good. The discharge diagnoses included PTSD (Axis I); retained shrapnel, right thigh (Axis III); and Global Assessment of Functioning score (GAF) in the past year of 30 and currently of 35 (Axis V). An October 1993 letter from the Director of the Environmental Support Group (ESG) indicates that the veteran’s unit participated in Operation Hardihood from May 18, 1966 until June 8, 1966, when it was terminated. It was stated that elements of the veteran’s unit participated Operation Silver City from March 9-22, 1966, which predated the veteran’s tour in Vietnam. Morning reports show that the veteran was assigned to Headquarters Company, 2nd Battalion, 503rd Infantry on May 26, 1966, and was granted a 30 day emergency leave to return stateside on July 30, 1966. Enclosed with the letter was supporting evidence, including an extract from an Operational Report - Lessons Learned (173rd Airborne Brigade) covering the period of May 1, 1966 to July 31, 1966; an extract from a Combat Operations After Action Report, dated in June 1966; and two morning reports submitted by Headquarters Company, 2nd Battalion, 503rd Infantry. In June 1996, a VA discharge summary, indicating that the veteran was hospitalized from February 1996 to April 1996, was received by the Board of Veterans’ Appeals. The summary indicates that the veteran was admitted with complaints of recurrent depression, manifested as social isolation, anger, occasional flashbacks, nightmares accompanied by sweats, intrusive thoughts, anxiety, difficulty in concentrating, and sleep disturbance. On mental examination, the veteran had good eye contact. He had spontaneous, coherent and relevant speech, normal voice tone and rate. Mood was euthymic, and affect was appropriate. There was no gross thought disorder, evert symptoms of psychosis, or suicidal or homicidal ideation. He had good reality testing, impulse control, and abstracting and calculating abilities. The veteran was oriented times three. The diagnoses included PTSD, chronic (Axis I); status post right leg combat injury (Axis III); severe psychosocial stressors, due to post combat experience (Axis IV); and a score of 41 for impaired social and occupational functioning (Axis V). II. Analysis According to regulatory criteria, service connection will be granted for a disability resulting from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. 38 C.F.R. § 3.304(f) provides: 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. Adjudication of a claim for service connection for PTSD requires evaluation of 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.A. § 1154(b). In Smith v. Derwinski, 2 Vet.App. 137, 140 (1992), in reviewing the legislative history of 38 U.S.C.A. § 1154, the Court stated that “...the matter of service connection is a factual determination which must be made by the Secretary based upon the evidence in each individual case...” VA Adjudication Procedure Manual, M21-1, Part VI, provides: Any evidence available from the service department indicating that the veteran served in the area in which the stressful event is alleged to have occurred and any evidence supporting the description of the event are to be made part of the record...Corroborating evidence of a stressor is not restricted to service records, but may be obtained from other sources (see Doran v. Brown, 6 Vet.App. 283 (1993)). Relevant statutes and regulations, to include 38 U.S.C.A. § 1154 and 38 C.F.R. § 3.304, in addition to Manual M21-1, mandate an initial determination as to whether a veteran was engaged in combat. See also Hayes v. Brown, 5 Vet.App. 60 (1993). If it is determined that a veteran was engaged in combat, lay testimony from the veteran regarding putative stressors must be accepted as conclusive, provided that the testimony is satisfactorily credible; however, if VA determines that a veteran did not engage in combat, lay testimony by the veteran by itself is not sufficient to establish that a putative stressor occurred. West v. Brown, 7 Vet.App. 70 (1994). If the veteran was not engaged in combat, those service records which are available and other corroborative evidence must support, and not contradict, the veteran’s lay testimony as to the facts and circumstances of an alleged stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); Manual M21-1, Part VI. See also Moreau v. Brown, No. 94-883 (U.S. Vet. App. Sept. 12, 1996). Moreover, a claimant for benefits under a law administered by the Secretary of the United States Department of Veteran Affairs (VA) shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well grounded claim; that is, a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet.App. 78 (1990). As explained below, the Board finds that the veteran’s claim regarding service connection for residuals of a gunshot wound to the right thigh is not well grounded. To sustain a well grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The determination of whether a claim is well grounded is legal in nature. King v. Brown, 5 Vet.App. 19 (1993). 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 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). To be well grounded, a claim must be accompanied by supportive evidence, and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well grounded claim requirement of 38 U.S.C.A. § 5107(a ). Lathan v. Brown, 7 Vet.App. 359 (1995). In order for a claim for service connection to be well grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence.) The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet.App. 498 (1995). With regard to the veteran’s claim for service connection for PTSD, the veteran’s DA-Form 20, Enlisted Qualification Record, and duty assignment record show that he was in Vietnam from May 1966 to July 1966. His military occupational specialty (MOS) during his tour of duty in Vietnam was a wireman. The veteran was awarded the Parachute Badge, National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Good Conduct Medal, and the Army Commendation Medal. It is clear from the record that the veteran’s duties in Vietnam were not combat related. In other words, the veteran’s work details would not in the general course entail exposure to combat. Service personnel records demonstrate that the veteran did not receive any awards or commendations related to combat service. The statement from the veteran’s fellow soldier which indicated that the veteran was injured in the leg or thigh during Operation Silver City during heavy fire from the enemy is not credible because the Environmental Support Group (ESG) verified that Operation Silver City occurred before the veteran’s tour in Vietnam. Moreover, the comrade indicated that he left Vietnam in May 1996; whereas, the veteran was not assigned to the cited unit until May 26, 1996. These discrepancies cast severe doubt on the credibility of the comrade statement. The Board finds that the evidence demonstrates that the veteran was not engaged in combat while he was in Vietnam. It must now be determined whether service records corroborate the veteran’s lay evidence regarding specific non-combat putative stressors. The veteran has not provided specific information upon which a meaningful stressor search could be based. He claims that while on patrol he witnessed “Charles or Charlie I’m not really sure” getting blown up in a land mine explosion on a bridge; however, supporting evidence to underpin this contention has not been provided. The necessary particulars, such as full name, date, and place, were omitted to corroborate any specific mine explosion. He claims that he awakened one morning to discover that his unit had dug foxholes in the middle of a Vietnamese graveyard, but again the necessary particulars were omitted to corroborate any such experience. The veteran also claimed that he awakened one day to find that his position was in the middle of a mine. This experience, too, lacks particulars for any corroboration of the event. These reported events are vague, and ultimately lack any value as verifiable stressors. In short, the veteran’s putative stressors are completely anecdotal in nature and unresearchable. As a result, any attempt to corroborate the veteran’s putative stressors via the service records would be futile. The veteran’s PTSD claim is also deficient in that the diagnoses of PTSD in the medical record are not based upon specific stressor events in service. In fact, it appears that no diagnosis of PTSD in the record was based on specific traumatic events in Vietnam, including the VA examination in June 1991 and VA hospitalizations in 1992 and 1993. On these records, there was no specific stressor even mentioned of the veteran’s tour in Vietnam to support the PTSD diagnosis. Moreover, the Court held in Moreau v. Brown, No. 94-883 (U.S. Vet. App. Sept. 12, 1996), that after-the-fact medical nexus evidence cannot, by itself, constitute credible supporting evidence of the actual occurrence of an inservice stressor. In Wood v. Derwinski, 1 Vet.App. 190 (1991), the Court stated that the Board was not bound to accept uncorroborated accounts of stressors, or medical opinions which were based on such accounts. That principle was especially true when there was a considerable passage of time between putative stressors and the onset of the alleged PTSD. The veteran has reported some classic PTSD symptoms: feelings of detachment or isolation from others, difficulty sleeping, irritability or feelings of anger, and difficulty concentrating. The VA records show that the veteran was not diagnosed with PTSD until 1990, more than 23 years after the purported stressors in Vietnam. This diagnosis was based solely on the veteran’s accounts of his Vietnam experiences, and there was no corroboration of the events. In summary, the veteran was not engaged in combat in Vietnam, his MOS did not entail more than an ordinary stressful environment, there was considerable passage of time between the veteran’s putative stressors and the onset of PTSD in 1990, the veteran’s putative stressors are wholly anecdotal and unresearchable, and a verifiable diagnosis of PTSD as a result of military service has not been made as the diagnosis of PTSD in the VA medical records was based solely on the veteran’s own recollection of traumatic events in Vietnam without any credible corroborative evidence. In view of these factors, the Board concludes that the preponderance of the evidence is against the veteran’s claim for entitlement to service connection for PTSD. With regard to the veteran’s claim for service connection for residuals of a gunshot wound to the right thigh, the veteran’s service medical records do not show complaints, treatment, or a diagnosis of a gunshot wound to the right thigh in service. The veteran’s lower extremities were evaluated as normal on his separation examination in 1967, and there was no mention of scars on his right leg. The medical evidence which initially revealed a retained fragment in the veteran’s right thigh dated from a 1986 VA x-ray. A medical record dated in October 1979 briefly noted a scar on the veteran’s right thigh, secondary to a gunshot wound. This evidence of a right thigh gunshot wound dated at least 12 years following the veteran’s separation from service. The only evidence offered to support the veteran’s claim that he incurred a right thigh wound in service are the veteran’s own statements and a “buddy statement” from a fellow soldier who allegedly served with the veteran in Vietnam. These statements, as previous discussed, lack credibility. In the “buddy statement,” the fellow soldier indicated that he and the veteran were involved in Operation Silver City when the veteran sustained a wound in his leg or thigh during combat with the enemy. The documentation provided by Environmental Support Group (ESG) clearly shows that the veteran’s service in Vietnam postdated Operation Silver City. ESG stated that it was unable to document that the fellow soldier was assigned to the veteran’s unit in Vietnam. The Board, therefore, concludes that this evidence of an inservice injury lacks probative value. Consequently, the veteran has not met the initial burden required by 38 U.S.C.A. § 5107(a) as the evidence submitted does not cross the threshold of mere allegation. As there is no credible evidence of an inservice gunshot wound injury, the veteran’s claim for residuals of a gunshot wound to the right thigh lacks plausibility and must be denied. The veteran has alleged that his claim has not been fully developed. Specifically, he contended that the Department of the Army lost his service medical records relating to service in Vietnam. The veteran’s service records, to include his medical records and DA-Form 20, Enlisted Qualification Record, are contained in the claims folder. Therefore, the Board finds that the veteran’s claim has been fully developed. ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for residuals of a gunshot wound to the right thigh is denied. JEFFREY A. PISARO Acting 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 -