Citation Nr: 0714649 Decision Date: 05/16/07 Archive Date: 06/01/07 DOCKET NO. 95-02 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for post-traumatic stress syndrome (PTSD). ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The veteran served on active duty from September 1965 to August 1969, and from March 1971 to April 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. After the January 2007 supplemental statement of the case, the veteran's representative submitted a Privacy Act request to obtain a copy of the VA compensation and pension (C&P) examination that was conducted in December 2006. A copy of that report was sent to the representative in February 2007. The veteran and his representative were notified in March 2007 that the appeal had been transferred to the Board. Neither the veteran nor his representative has responded to the statement of the case. Accordingly, the Board will now decide this appeal. In October 1991, the veteran requested an examination for residuals of exposure to Agent Orange. The May 1992 rating decision stated that the rating as to service connection for exposure to Agent Orange was deferred for receipt of final regulations from Central Office. The claims file contains nothing more on that issue. The matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. The record contains no credible supporting evidence that the claimed inservice stressor occurred. 2. During October, November, and December 1968, there were no mortar attacks at the air base in Da Nang, the Republic of Vietnam. 3. The veteran did not engage in combat with the enemy. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Special rules identify the evidence needed to establish service connection for PTSD: (1) the claimed inservice stressor must be supported by credible evidence that it occurred; (2) there must be medical evidence establishing a PTSD diagnosis made in accordance with 38 C.F.R. § 4.125(a); and (3) medical evidence must exist establishing a link between the verified inservice stressor and the diagnosed PTSD. 38 C.F.R. § 3.304(f) (specific evidentiary rules for PTSD). Here, the record contains conflicting evidence about whether the veteran has a current disability of PTSD. It is not necessary to resolve that conflicting evidence, however, because the record is clear that there is no credible evidence supporting the occurrence of any inservice stressor claimed by the veteran. Since that is a necessary requirement for establishing service connection for PTSD, the veteran's claim must fail. The veteran set forth three separate inservice stressors. First, he claims that every day he had to walk through a hangar for meals and in that hangar were stored the remains of people in body bags. Second, he claims that he was subjected to frequent mortar fire during the TET offensive in Da Nang. Third, he claims that the death of his best friend in the Republic of Vietnam made his PTSD condition intensify. No credible evidence has been submitted to support that the first two claimed stressors occurred. There is evidence that the person identified as the veteran's friend was killed in August 1969, just days before the veteran left active military service. The veteran has reported, however, that he was out of service and home when he attended the funeral, which he contends was a traumatic event. Thus, even though this person's death occurred before the veteran left active military service, the claimed stressor did not occur during the veteran's active military service. As relevant here, there are three ways in which the claimed inservice stressors can be supported by credible evidence that it occurred. First, the veteran may submit corroboration of his claimed stressors. The veteran's appeal was previously before the United States Court of Appeals for Veterans Claims (Court). One of the reasons the Court remanded the veteran's appeal was to insure that the veteran was notified of the type of evidence necessary to support his inservice stressors. In paragraph 2 of its July 2003 remand, the Board instructed the RO to advise the veteran of the evidence and corroboration necessary to substantiate and prove his claimed stressors, such as, "buddy statements" or contemporaneous letters home that might relate to the claimed stressors. In the September 2003 letter to the veteran advising him of the evidence necessary to substantiate his claim, the veteran was notified that some events are not usually verifiable by the Government's sources. He was told that such events are often best supported by statements from fellow servicemen ("buddy statements") who experienced the event with the veteran, and who can verify his involvement in the event as well as the actual or perceived threat of the situation. These statements could also include contemporaneous letters home that might relate the events. The veteran has not submitted any statements from fellow servicemen or any letters home from his time in the Republic of Vietnam that relate to his claimed stressors. Accordingly, under the first method of corroborating the inservice stressor, the first requirement for establishing PTSD service connection has not been met. Another way in which claimed stressors can be supported by credible evidence that they occurred is that the RO seeks verification from the United States Army and Joint Services Records Research Center (JSRRC), which was formerly known as the United States Armed Services Center for Research of Unit Records (USASCURR), or it can seek verification from the veteran's service personnel records, or other Governmental resources. The fact that the veteran had to walk past body bags on the way to meals is not the kind of information that is verifiable from official Government records. But the RO did submit the facts from the veteran's other claimed stressors to the USASCURR. That center verified that the veteran's friend did indeed die in combat in the Republic of Vietnam and that at the time of his friend's death, the veteran was no longer in the Republic of Vietnam. As noted above, the veteran's attendance at the funeral of the named individual, which the veteran identifies as a stressor event, did not occur during the veteran's active military service. As for the veteran's claims that he was frequently exposed to mortar fire while on temporary duty in Vietnam, the USASCURR provided information of attacks on the air base at Da Nang, where the veteran was stationed during his temporary duty. Those records show that there were no mortar attacks at that air base during the months of October, November, and December 1968, the time of the veteran's temporary duty. Thus the credible information received from USASCURR does not support the occurrence of the claimed inservice stressors. The regulations provide a third way to establish the occurrence of an inservice combat stressor. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed inservice stressor. 38 C.F.R. § 3.304(f)(1). Evidence that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or other similar combat citation, is deemed verification of a combat-related stressor. Here, there is no evidence of any combat citation having been awarded to the veteran. Nor is there anything in his service personnel records to indicate that he was engaged in combat with the enemy. His military occupational specialty is airplane mechanic. Apart from his testimony, there is nothing to indicate that he was engaged in combat against the enemy. Thus, the special evidentiary rule of 38 C.F.R. § 3.304(f)(1) does not establish that the claimed inservice stressor occurred. Since the record contains no credible evidence that a claimed inservice stressor occurred, the first requirement for establishing service connection for PTSD has not been met. In the absence of a verified inservice stressor, regardless whether there is a medical diagnosis of PTSD, service connection for PTSD cannot be granted. Hence, the veteran's claim must be denied. The reasonable doubt doctrine does not apply here. When there is an approximate balance of positive and negative evidence about a claim, reasonable doubt should be resolved in the claimant's favor. 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102. Here, there is no evidence from the veteran to corroborate his claimed stressors, the information obtained from the USASCURR does not provide supporting evidence of the claimed stressors, and there is no evidence of the veteran engaging in combat with the enemy. When, as here, the evidence against the claim is much greater than that in favor, the reasonable doubt doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt rule inapplicable when the preponderance of the evidence is against the claim). Nor is the fact that some examiners have based their diagnoses on events related by the veteran relevant here. The regulation requires that in addition to a diagnosis of PTSD there must also be a stressor that occurred during service that is supported by credible evidence that it occurred. 38 C.F.R. § 3.304(f)(1). See also Swan v. Brown, 5 Vet. App. 229, 233 (1993) (the Board is not bound to accept the opinion of a medical professional that the veteran's PTSD is secondary to his wartime experiences). Notwithstanding the examiner's opinion relating the veteran's PTSD to his claimed stressors, in the absence of verification, the requirements of the regulations for service connection have not been met and the claim must be denied. Duties to notify and to assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159 and 3.326(a). VA must notify the claimant (and his or her representative, if any) of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide, and (4) VA must ask the claimant to provide VA with any evidence in his or her possession that pertains to the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Dingess v. Nicholson, 19 Vet. App. 473 (2006), also held that, as the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the unfavorable RO decision that is the basis of this appeal was already decided--and appealed--before the Section 5103(a) notice requirements were enacted in November 2000. The Court acknowledged in Pelegrini, 18 Vet. App. at 120, that where, as here, the Section 5103(a) notice was not mandated at the time of the initial RO decision, the RO did not err in not providing such notice. Rather, the veteran has the right to content-complying notice and proper subsequent VA process, which he has received. The RO's September 2003 and March 2006 letters described the evidence necessary to substantiate a claim for service connection, identified what evidence VA had collected and was collecting, identified what evidence might be helpful in establishing his claim, invited the veteran to send VA whatever evidence he had pertaining to his claim, and addressed what evidence was necessary with respect to the rating criteria and effective date of an award for service connection. These letters were sent well before the January 2007 supplemental statement of the case. VA also has a duty to assist a claimant in obtaining evidence to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA met its duty to assist the veteran by retrieving his claims file, obtaining all medical evidence identified by the veteran, providing him with a C&P examination, and by attempting to verify his claimed inservice stressors. After the USASCURR provided the information that the veteran's claimed stressor concerning mortars could not be verified, the veteran asserted that he was on temporary duty in the Republic of Vietnam twice. There is nothing in the veteran's personnel file reflecting a second tour of temporary duty. From the time the veteran filed his July 1991 claim for service connection for PTSD until the information from the records center was received, the veteran consistently asserted that he had been in Vietnam for one temporary duty period beginning in October 1968. Despite being asked for evidence and details about inservice stressors, the veteran has not provided any information whatsoever about this second tour of temporary duty. Given the lack of information about that tour of duty or any stressors that occurred then, VA had no duty to assist the veteran in obtaining evidence with respect to those matters. The Board is aware that the RO did not obtain a copy of the March 2006 VA psychiatric treatment record referred to in the December 2006 VA medical opinion report, nor did the RO obtain the records of VA hospitalization from June to August 1991, the summary of which is contained in the SSA records. As the claim must be denied on the basis that there is no verified inservice stressor, the Board concludes that the failure to obtain these VA records did not prejudice the veteran in this instance. The summary and the references to the March 2006 treatment, which are of record, are adequate under the circumstances of this case. ORDER Service connection for PTSD is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs