Citation NR: 9706937 Decision Date: 02/28/97 Archive Date: 03/05/97 DOCKET NO. 94-09 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty from June 1962 to July 1965, and from August 1967 to August 1970. He served in Vietnam from August 1969 to August 1970. This case comes before the Board of Veterans’ Appeals (the Board) on appeal from a November 1993 rating decision of the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO). The RO in St. Petersburg, Florida, presently has jurisdiction over this case. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that a number of stressful incidents he experienced in Vietnam, particularly an incident involving the enemy’s night-long torture and eventual killing of a captured American soldier from the 101st Airborne Division that he claims to have listened to while assigned to a permanent listening post located at Phu Bai in April 1970, resulted in PTSD which now entitles him to service connection. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), 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 appellant has not met his statutory duty of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for PTSD is well grounded. FINDINGS OF FACT 1. It is not shown that the appellant engaged in combat with the enemy during his period of active duty between August 1967 and August 1970. 2. Although a current diagnosis of PTSD is indicated, the occurrences of the appellant’s claimed Vietnam service stressor incidents are not corroborated by credible supporting evidence. CONCLUSION OF LAW The claim for service connection for PTSD is not well grounded, and there is no further statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for PTSD requires (1) medical evidence establishing a clear diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1996); see also VA ADJUDICATION PROCEDURE MANUAL M21-1 (MANUAL M21-1), Part VI, 11.38 (Aug. 26, 1996) (reiterating the three PTSD service- connection requirements set forth in regulation § 3.304(f) and specifically requiring “credible supporting evidence that the claimed in-service stressor actually occurred”). The MANUAL M21-1 provisions in paragraph 11.38 are substantive rules which are “the equivalent of [VA] [r]egulations.” See Hayes v. Brown, 5 Vet.App. 60, 67 (1993) (citing Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991)). With regard to the second criterion, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran “engaged in combat with the enemy.” 38 U.S.C.A. § 1154(b) (West 1991); see also Gregory v. Brown, 8 Vet.App. 563 (1996); Collette v. Brown, 82 F.3d 389 (Fed.Cir. 1996). The United States Court of Veterans Appeals (the Court) has held that “[w]here it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran’s lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran’s testimony is found to be ‘satisfactory,’ e.g., credible, and ‘consistent with the circumstances, conditions, or hardships of [combat] service.’” Zarycki v. Brown, 6 Vet.App. 91, 98 (1993). However, where VA determines from the evidence that the veteran did not engage in combat with the enemy or where the veteran, even if he did engage in combat, is claiming stressors not related to combat, his lay testimony alone is not enough to establish that the stressors actually occurred. West (Carleton) v. Brown, 7 Vet.App. 70, 76 (1994); see also, Zarycki, 6 Vet.App. at 98. The MANUAL M21-1, as recently revised, provides that the required “credible supporting evidence” of a combat stressor “may be obtained from” service records or “other sources.” See Moreau v. Brown, 9 Vet.App. 389 (1996); see also Doran v. Brown, 6 Vet. App. 283 (1994). However, although corroborating evidence of a stressor is not restricted to service records, if the claimed stressor is related to combat, and in the absence of information to the contrary, receipt of any of the following individual decorations will be considered evidence of participation in a stressful episode: Air Force Cross Air Medal with “V” Device Army Commendation Medal with “V” Device Bronze Star Medal with “V” Device Combat Action Ribbon Combat Infantryman Badge Combat Medical Badge Distinguished Flying Cross Distinguished Service Cross Joint Service Commendation Medal with “V” Device Medal of Honor Navy Commendation Medal with “V” Device Navy Cross Purple Heart Silver Star See MANUAL M21-1, paragraph 11.38(c) (1). The regulations governing service connection for PTSD differ from those governing service connection for other conditions because they require evidence of an in-service stressor rather than evidence of “incurrence or aggravation” of a disease or injury in service or within a post-service presumptive period. The Court’s caselaw allows a physician’s opinion of causal nexus, in certain circumstances, to establish in-service or presumptive-period incurrence or aggravation even when the examination on which the opinion was based was made many years after service. See e.g., ZN v. Brown, 6 Vet.App. 183 (1994). However, since the requirements in § 3.304(f) for a “link, established by medical evidence, between current symptomatology and the claimed inservice stressor” and for “credible supporting evidence that the claimed in[-]service stressor actually occurred,” indicate that something more than medical nexus is required, the Court recently held in Moreau, supra, that “credible supporting evidence of the actual occurrence of an in-service stressor cannot consist solely of after-the-fact medical nexus evidence.” In addition, although the above-cited legal criteria may sometimes be at odds with the medical findings of an individual physician, the Board may disregard such medical findings if it determines on a factual basis that the alleged event (or series of events) is not of sufficient gravity or severity to qualify as a stressor. West, 7 Vet.App. 70, 78- 79 (1994) (noting that a significant diagnostic feature of PTSD requires that the sufficiency of the stressor be clinically established but not holding that this matter is purely a medical question in every case); Wilson v. Derwinski, 2 Vet.App. 614, 616-18 (1992) (affirming a Board decision which noted that whether an alleged event is a stressor is a question of fact for the Board to decide involving factors as much historical as psychological); see also Swann v. Brown, 5 Vet.App. 229 (1993) (holding that veteran’s descriptions of experiences in service “are not beyond the ordinary, i.e., they would not, in and of themselves, evoke symptoms in ‘almost everyone.’”); and, Wood v. Derwinski, 1 Vet.App. 190 (1991) (noting that service in a combat zone is stressful in some degree to all who are there, whatever their duties and experiences). Turning to the facts in this case, in a February 1991 social work note, the assessment was that there was inadequate data, with a provisional diagnosis of situational adjustment [disorder] with depressed mood, rule out schizoid personality. The veteran underwent a PTSD inpatient treatment program at the VAMC in Palo Alto, California, from December 1992 to April 1993. A psychological testing report dated in May 1993 indicated that the veteran had a PTSD subscale T-score of 71, suggesting a high similarity between his profile and those of individuals with PTSD. The appellant was diagnosed with PTSD on a recent VA psychiatric examination (VAX) conducted in May 1996. This diagnosis was based on his reported complaints of recurrent intrusive thoughts, daydreams, flashbacks, and nightmares of the events he claimed to have experienced in Vietnam in 1969-70. He related these symptoms to three incidents from his Vietnam experience: His witnessing of an American soldier being mortally wounded in a nighttime rocket attack; an incident in which he and another soldier were inadvertently trapped in an ambush position set up by American forces while trying to drive a truck to a salvage yard; and, the above-cited incident detailed in the CONTENTIONS section involving the torture death of a captured American soldier that he listened to while assigned to a listening post at Phu Bai in April 1970. The balance of the evidence which predates the aforementioned medical findings is negative for a diagnosis of PTSD, and it was noted that he was psychiatrically normal on his enlistment and discharge examinations conducted in connection with his 1967-70 military service. However, notwithstanding the recent diagnoses of PTSD, the appellant’s available service department records do not corroborate the above-cited stressor accounts. Corroboration that he engaged in combat activity is not apparent from careful scrutiny of his official service records relating to his Vietnam tour of duty during his second period of active duty (1967-70). Neither a combat citation listed under paragraph 11.38(c) (1) of the MANUAL M21-1 nor his military occupational specialty (wheeled vehicle repairman) indicates that he was exposed to more than the ordinary stressful environment in a combat zone in Vietnam, even given the fact that service in a combat zone is stressful in some degree to all who are there, whatever their duties and experiences. Wood, 1 Vet.App. 190 (1991). Moreover, development efforts undertaken by the RO in connection with the appellant’s claim are also noncontributory. Inquiries to the National Personnel Records Center (NPRC) in 1991 and 1993 to obtain additional service department records have failed to produce any corroborating evidence of the appellant’s claimed stressor accounts or verified that he performed combat duties in Vietnam. In addition, the RO’s inquiry to the United States Army and Joint Services Environmental Support Group (ESG), received in October 1994, failed to corroborate the appellant’s stressor accounts. Thus, other than the appellant’s own testimony and contentions on appeal, there is no service department or evidence from “other sources” which objectively verifies combat status or any of his stressors. Accordingly, the Board concludes that in this case, where the question of whether credible supporting evidence that the claimed inservice stressor actually occurred is factual in nature, and not a medical question, the Board may therefore resolve this matter by applying the criteria adopted by the VA for this purpose from the MANUAL M21-1 and by referring to the above-cited cases where the Court has found, without recourse to medical evidence, that uncorroborated events do not constitute sufficient stressors to support a diagnosis of PTSD for the purposes of service connection. Since it has not been established that the appellant engaged in combat with the enemy during his tour of duty in Vietnam, his lay testimony, by itself, will not corroborate the occurrence of alleged stressors; instead, either his service records or evidence from “other sources” that is credible on its own terms must corroborate his stressors. However, as stated above, the evidence in this case is devoid of any service department or other credible evidence which supports the appellant’s description of his Vietnam service. In view of these findings, the Board finds that a nexus between the many diagnoses of PTSD noted in the post service period and “credible supporting evidence that the claimed in[-]service stressor actually occurred,” has not been established in this case. Considering the foregoing, the Board concludes that the appellant’s claim for service connection for PTSD is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); see Caluza v. Brown, 7 Vet.App. 498 (1995) (a “well grounded” claim for service connection requires evidence of a current disability as provided by a medical diagnosis; evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence). In this case, it is not shown that the appellant engaged in combat with the enemy during his war period service and there is no credible supporting evidence to corroborate the occurrence of the combat stressors that he claims to have experienced in Vietnam. In view of the above, the Board concludes that a remand is not required to take steps to verify the appellant’s exposure to these stressors, including another request for information from the ESG. A remand would serve no useful purpose in this case because the events do not meet the criteria which VA has adopted from the MANUAL M21-1 and against which the sufficiency of the evidence in individual cases must be weighed in determining whether service connection for PTSD may be granted. Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet.App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided); cf. Brady v. Brown, 4 Vet.App. 203, 207 (1993) (a remand is unnecessary even where there is error on the part of VA, where such error was not ultimately prejudicial to the veteran’s claim). Where the veteran has not met this burden, the VA has no further duty to assist him in developing facts pertinent to his claim, including no duty to provide him with another medical examination. 38 U.S.C.A. § 5107(a); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992) (where the claim was not well grounded, VA was under no duty to provide the veteran with an examination). Although where a claim is not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet.App. 69 (1995). Here, the RO fulfilled its obligation under section 5103(a) in the statement of the case issued in February 1994 and with the supplemental statements of the case issued during the pendency of the appeal. In this respect, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See Franzen v. Brown, 9 Vet.App. 235 (1996) (VA’s obligation under sec. 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained). See also Epps v. Brown, 9 Vet.App. 341 (1996) (sec. 5103(a) duty attaches only where there is an incomplete application which references other known and existing evidence that pertains to the claim under consideration) and Wood, 1 Vet.App. 190 (1991) (VA’s “duty” is just what it states, a duty to assist, not a duty to prove a claim). Although the RO did not specifically state that it denied the appellant’s service connection claim on the basis that it was not well grounded, the Board concludes that this error was harmless. See Edenfield v. Brown, 8 Vet.App. 384 (1995) (en banc) (remedy for deciding on the merits a claim that is not well grounded should be affirmance, on the basis of nonprejudicial error, of the decision by agency of original jurisdiction). Accordingly, the Board must deny the appellant’s claim of service connection for PTSD as not well grounded. Edenfield, 8 Vet.App. at 390 (disallowance of a claim as not well grounded amounts to a disallowance of the claim on the merits based on insufficiency of evidence). 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). However, the Board concludes that the appellant has not been prejudiced by the decision herein. The RO has denied service connection for PTSD on the basis that the post service diagnoses of this disorder are not supported by credible evidence of the occurrence of the alleged inservice stressor incidents. The Board has considered the same law and regulations. The Board merely concludes that the appellant did not meet the initial threshold evidentiary requirements of a well-grounded claim under the standards set forth in Caluza v. Brown, 7 Vet.App. 498 (1995). The result is the same. ORDER The appellant having failed to submit a well-grounded claim, the claim of entitlement to service connection for PTSD is denied. J. SHERMAN 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. 1996), 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 -