Citation NR: 9801241 Decision Date: 01/16/98 Archive Date: 01/28/98 DOCKET NO. 94-42 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD N. W. Fabian, Associate Counsel INTRODUCTION The veteran had active duty from October 1965 to October 1969. This matter comes to the Board of Veterans’ Appeals (Board) from an October 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO denied entitlement to service connection for PTSD, a skin disorder, and a back disorder. The veteran filed a notice of disagreement in response to the October 1993 decision, and a statement of the case was provided in May 1994 pertaining to service connection for the three stated disorders. In his substantive appeal the veteran identified only the issue of service connection for PTSD as the issue being appealed. 38 C.F.R. § 20.202. Although the veteran made reference to an inservice back injury and its residuals in a statement received in November 1994, this statement was not received within the applicable time period in order to constitute a substantive appeal. 38 U.S.C.A. § 7105; See Roy v. Brown, 5 Vet. App. 554 (1993). Moreover, the veteran did not in anyway indicate that he intended this statement to constitute a substantive appeal. The statement was submitted in response to the RO’s request for information as to PTSD stressors. The Board finds, therefore, that the issues of service connection for skin and back disorders are not properly developed for appellate consideration. See Talbert v. Brown, 7 Vet. App. 352, 356 (1995) (the Board must consider only those issues that are reasonably raised by a substantive appeal). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has PTSD as a result of his service in Vietnam. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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 claim of entitlement to service connection for PTSD. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran did not engage in combat while in service and no credible supporting data corroborates the veteran’s claimed stressors. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.304(f) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board concludes that the veteran's claim for service connection for PTSD is well grounded because the evidence shows that it is plausible. The veteran is competent to report traumatic events he experienced in service, and has, in fact, reported a number of stressors experienced during service. There are recent medical records suggesting that the veteran might have PTSD. These findings were reported during treatment which apparently considered only evidence of traumatic events occurring during service, thereby suggesting that current PTSD were related to inservice stressors. See Cohen v. Brown, 10 Vet. App. 128 (1997). VA has a duty, therefore, to assist him in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a); see also Epps v. Gober, No. 97-7014, slip op. at 9 (Fed. Cir. Oct. 7, 1997). The relevant evidence pertaining to the issue consists of the veteran’s service records, records from the North Bay Veterans’ Center, reports from the U. S. Armed Services Center for Research of Unit Records (USASCRUR) (formerly the U. S. Army and Joint Services Environmental Support Group (ESG)), and the veteran’s statements. I. Law and Regulations The Board notes that subsequent to initiation of the veteran’s claim, a specific regulation pertaining to service connection for PTSD was issued. 38 C.F.R. § 3.304(f) (1993). Prior to the promulgation of 38 C.F.R. § 3.304(f), entitlement to service connection for PTSD was determined by applying the provisions of the VA Adjudication Manual (M21- 1), which, at the time, required essentially the same three elements as are now contained in 38 C.F.R. § 3.304(f). See Cohen v. Brown, 10 Vet. App. 128, 138 (1997), citing the VA Adjudication Procedure Manual, M21-1, Subchapter XII, 50.45 (Jan. 25, 1989). In accordance with the Court’s holding in Karnas v. Derwinski, 1 Vet. App. 308 (1991), if a regulation or Manual M21-1 provision changes after the claim has been filed but prior to the conclusion of the appellate process, the provision that is more favorable to the veteran applies. The current regulation requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). In determining whether the occurrence of the claimed in-service stressor is supported by credible evidence, if the claimed in-service stressor is related to combat, service department evidence that the veteran served in combat will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the in- service stressor. 38 C.F.R. § 3.304(f). If the veteran did not serve in combat, the record must contain corroborative evidence that the in-service stressor occurred. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996). In reference to the second element for non-combat veterans, the M21-1 provisions in effect prior to the implementation of 38 C.F.R. § 3.304(f) required that verification of the claimed in-service stressors be found only in service records. See Cohen, 10 Vet. App. at 142, citing Manual M21- 1, Part VI, 7.46(f) (Sept. 21, 1992); Manual M21-1, Subch. XII, 50.45(d) (1989). The regulation does not limit verification of the stressor to service records, but allows corroboration of the stressor from other sources. See Moreau, 9 Vet. App. at 395. The Board finds, therefore, that the application of 38 C.F.R. § 3.304(f) is more favorable to the veteran. When the veteran’s claim was originally adjudicated in October 1993, the RO applied the Manual M21-1 provisions in determining if service connection was warranted. The claim was re-adjudicated by the RO by applying the criteria for service connection as shown in 38 C.F.R. § 3.304(f) in July 1995, and the veteran was provided the provisions of 38 C.F.R. § 3.304(f) in a July 1995 supplemental statement of the case. II. Factual Background The veteran’s service medical records are silent for any complaints or clinical findings pertaining to a psychiatric disorder. The veteran’s service records show that he served in Vietnam with the Naval Support Activity at Da Nang and Chu Lai from June 1966 to April 1967. The records further indicate that his occupations were fireman and shipsfitter. Records from the North Bay Veterans’ Center show that he received counseling intermittently from November 1990 to July 1994 for anger and stress management, marital problems, chronic alcohol abuse, “features of PTSD,” and “PTSD symptoms.” The counseling was interrupted a number of times due to his incarceration. In March 1993 the veteran was asked by the RO to describe the specific traumatic events that he believed caused him to have PTSD, including the date and place where the traumatic event occurred, the names of the persons involved, the length of the event, and his role in the event. He was informed that VA needed specific answers to these questions in order to develop his claim for PTSD, and that he could provide the information to a VA psychiatrist if he preferred. He responded in January 1994 with reports of the following incidents: being under fire for three consecutive nights at some point in time from June 19, 1966, to July 15, 1966, while standing watch at the Naval Support Activity at Da Nang; random attacks at night from July 15, 1966, to September 30, 1966, while assigned to do maintenance and repair of landing craft and patrol boats at the Naval Support Activity at Chu Lai; being fired upon by a junk and returning fire, which resulted in the deaths of all on board and the sinking of the junk, on some date between September and December 1966 while assigned at Chu Lai; and being assaulted by civilians on his return to the U. S. from his tour in Vietnam in March or April 1967. In his June 1994 substantive appeal the veteran stated that his entire duty in Vietnam was stressful. He stated that he was in fear of being injured the entire time he was in Vietnam, and that he was constantly in fear of death. He stated that numerous others did not survive, and that he could have been one of them. He also stated that he was in constant fear of enemy contact, and of how the contact would occur. In October 1994 the veteran was informed by the RO that the USASCRUR required a more specific time frame than the four- month period he had described in his report of being fired on by a junk. He was informed that specific details were needed pertaining to the time of the event, the unit to which he was assigned, his job duties, the name of the person in charge of his unit, the names of any other members of the unit, where the incident occurred, and whether the incident had been reported. He responded that he had tried to block out his memories of his service in Vietnam, during which time his unit was responsible for repairing the landing craft, swift boats, and other Navy vessels. He stated that while he was stationed at Chu Lai they were fired upon almost every night, and that the artillery fired flares for hours every night so that they could see if the Vietcong had invaded the perimeter. He indicated that they were ordered not to fire on anyone, or to return fire. He further stated that the facility was being constantly hit by the Vietcong in October and November 1966, but that he could not provide any specific dates. The records from the North Bay Veterans’ Center indicate that the veteran described his combat duties in Vietnam as moving equipment and jeeps, and picking up the wounded. He also stated that his unit was hit numerous times by ground attack, small arms fire, and mortar attacks. He denied having been wounded, but claimed to have had many near misses. He reported having exposure to casualties other than in combat, and that he had friends who were killed or wounded. He further reported that his principal duties included small boat patrols and the repair of landing craft. He reported what the counselor described as significant trauma from having to pick up wounded SEAL team members and Marine infantry, with images of bleeding men and “horrible screaming” that stopped when they died. He also reported that he began to drink heavily while in Vietnam “waiting for the war to happen.” In December 1994 the RO asked the USASCRUR to verify the veteran’s claimed stressors, including the rocket, mortar, and sniper fire and incursions by the Vietcong at Chu Lai from September 1966 to March 1967, the attack by the junk in October or November 1966, and picking up wounded SEAL team members and Marine infantry. The USASCRUR responded in May 1995 with a report that a review of the 1966 and 1967 Command histories of the Naval Support Activity at Da Nang, including the detachment at Chu Lai, did not document that a repair crew had been fired upon by a junk, and there was no mention of rocket or mortar attacks at Chu Lai. The USASCRUR further reported that in order to conduct further research, the veteran had to supply the dates of the incidents to within seven days, the type and location of the incident, the number and full names of the casualties, and any other units involved. He was informed of the negative response from The USASCRUR in a July 1995 supplemental statement of the case. In August 1995 the veteran requested additional time in which to submit evidence in support of his claim. Shortly after the request he was asked by the RO to submit the evidence as soon as possible, in order to prevent a delay in processing his appeal, but he has apparently not responded. In October 1996 the RO requested documentation pertaining to the veteran’s award of a Navy Unit Commendation and the morning and daily reports (or Navy equivalents) from September to December 1966 for the Naval Support Activity at Chu Lai from the National Personnel Records Center (NPRC). The NPRC responded that the documents could be obtained from the Chief of Naval Operations, and in March 1997 the RO requested the documents from that office. The Operational Archives Branch of the Navy responded in May 1997 that the documents could be obtained from the USASCRUR. The veteran was informed of the response from the Operational Archives Branch in a July 1997 supplemental statement of the case. He was also informed that, according to the May 1995 response from the USASCRUR, additional research could not be conducted without specific details of the claimed incidents, including the dates of the incidents to within seven days, the type and location of the incident, the number and full names of the casualties, and any other units involved. He was notified that if the information requested by the USASCRUR could be provided, an additional search to verify his claimed stressors would be requested. The evidence does not indicate that the veteran responded to the request for additional information. III. Analysis Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. The veteran claims that his stressors included having been fired on and attacked by the Vietcong nearly every night, being fired on by a junk and returning fire, and being assaulted by civilians on his return to the U. S. He reported to the Veterans’ Center that he also participated in picking up wounded SEAL team members and Marine infantry, although this information was not provided to the RO and no details of the incidents were provided. The RO has attempted to obtain verification of the claimed stressors, but has not been able to do so. Although the Operational Archives Branch responded that the requested documents could be obtained from the USASCRUR, the RO had attempted to obtain verification of the claimed stressors from the USASCRUR in 1995, but the USASCRUR could not provide the requested information without the specific details of the stressors. The veteran has been notified on several occasions of the need to provide detailed information pertaining to his claimed stressors in order for VA to obtain verification of the stressors from official sources. He has not been able to provide the necessary information. The Board finds that VA has fulfilled its obligation to assist him in the development of the evidence needed to support his claim. The veteran’s service records show that his duties while stationed in Vietnam were as a fireman and shipsfitter. The veteran has not received any combat decorations. The service personnel records show that he had no combat duties, and the veteran has not reported such duties. He has reported that his unit came under fire on various occasions, however, these claims have not been verified and he has not reported that he personally participated in combat with the enemy. The records show, and the Board finds, that the veteran did not serve in combat while in Vietnam, when the claimed stressors occurred. The claimed stressors must, therefore, be verified by credible supporting evidence. 38 C.F.R. § 3.304(f). The Board has determined, in the absence of credible supporting evidence of the claimed stressors, that service connection for PTSD is not warranted. The Board notes that there has been no clear diagnosis of PTSD. Records from the Vet Center show that PTSD symptoms were noted but a clear diagnosis was not reported. The duty to assist might require in some circumstances that the Board seek a medical opinion as to whether the veteran currently has PTSD. However, the Board’s decision does not turn on whether a clear diagnosis of PTSD has been established, or whether the medical evidence establishes a link between the current symptomatology and the claimed in-service stressors. Further examinations, even if they showed a clear diagnosis of PTSD and a link with service, would not change the outcome of this case. Accordingly, such further development is not warranted. See Allday v. Brown, 7 Vet. App. 517, 530 (1995) (holding there was no duty to obtain documents which could not serve to establish that claimed disability was service connected). ORDER The claim of entitlement to service connection for PTSD is denied. Mark D. Hindin Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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 -