Citation Nr: 0716091 Decision Date: 05/31/07 Archive Date: 06/11/07 DOCKET NO. 04-34 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Associate Counsel INTRODUCTION The veteran served on active duty from May 1954 to May 1956. This matter comes to the Board of Veterans' Appeals (Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which denied the veteran's claim of entitlement to service connection for PTSD. The veteran was afforded a travel Board hearing on October 20, 2005, before the undersigned Veterans Law Judge. A transcript of the testimony offered at this hearing has been associated with the record. Initially, the Board notes that following the veteran's October 2005 Board hearing and certification of his appeal to the Board, he submitted additional evidence in the form of a personal statement dated in January 2007. This personal statement reflects continued treatment for PTSD, but offers no information regarding the veteran's alleged stressors, which are ultimately at issue in the present case. Accordingly, the Board does not find that this evidence is pertinent and will proceed with adjudication of the present appeal. See 38 C.F.R. § 19.31 (2006). FINDINGS OF FACT 1. The veteran did not serve in combat during service. 2. The record contains no credible corroborating evidence that the veteran's claimed in-service stressors occurred. CONCLUSION OF LAW PTSD was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) Before assessing the merits of the appeal, VA's duties under the VCAA, 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006), are examined. VA has a duty to indicate which portion of information should be provided by the claimant, and which portion VA will try to obtain on the claimant's behalf, which was accomplished via letter dated in June 2003. This letter also informed the veteran of the information and evidence necessary to substantiate his claim of entitlement to service connection of PTSD. During the pendency of this appeal, the Court of Appeals for Veterans Claims (the Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a claim of service connection, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. No prejudice results, however, in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). Particularly, the veteran has been afforded the appropriate information in order to advance any contentions regarding the claim of entitlement to service connection of PTSD. In terms of any notification regarding downstream elements, because of the denial of the issue below, any concerns regarding such downstream elements are rendered moot; thus, the veteran is not prejudiced by the Board's consideration of the pending issue. The Court in Pelegrini v. Principi, 18 Vet. App. 112 (2004), continued to recognize that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must typically be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the veteran received sufficient VCAA notification in a timely fashion. It is further noted that in order to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), a VCAA notice must also request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). See Pelegrini, 18 Vet. App. at 121. In this case, this has been fulfilled by the aforementioned June 2003 letter, which advised the veteran to send any evidence in his possession that pertained to the claim on appeal, and in an October 2004 letter that again explained the duties of the Department and the veteran under the VCAA. The VCAA also requires VA to assist the claimant in obtaining evidence necessary to substantiate a claim, which includes providing a medical examination when necessary to decide the claim. 38 C.F.R. § 3.159(c) (2006). The RO has obtained the veteran's service medical records and VA medical records. The veteran has not indicated the presence of any outstanding relevant records and, as noted above, the records referred to in his January 2007 statement refer only to ongoing treatment. Such records and a medical examination are not necessary to decide the appeal because, as outlined below, determination of this claim depends upon corroboration of the veteran's alleged stressors, and not upon further confirmation of a diagnosis of PTSD. Given the preceding, VA satisfied its duties to the veteran given the circumstances of this case. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2006). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For post-traumatic stress disorder, service connection requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link established by medical evidence, between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). 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 in-service stressor. See 38 C.F.R. § 3.304(f). The diagnosis of a mental disorder must conform to the DSM-IV and be supported by the findings of a medical examiner. As noted, where VA determines that the veteran did not engage in combat, the veteran's lay testimony, by itself, will not be sufficient to establish the alleged stressor. Instead, the record must contain service records or other independent credible evidence to corroborate the veteran's testimony as to the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Those service records which are available must support and not contradict the veteran's lay testimony concerning the noncombat stressors. Doran v. Brown, 6 Vet. App. 283, 289 (1994). The evidence required to support the occurrence of an in- service stressor varies depending on whether the veteran was engaged in combat with the enemy. 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 in-service stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). Where the veteran did not engage in combat with the enemy, the Court has held that credible supporting evidence means that the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389 (1996). In other words, if the veteran's claimed stressor is not combat-related, uncorroborated testimony, by itself, is insufficient to establish the occurrence of the alleged stressor. Rather, the record must contain service records or other credible supporting evidence to support a veteran's testimony as to the occurrence of the claimed stressor. See Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet. App. 70 (1994); 38 C.F.R. § 3.304(f) (2004). The veteran alleges the occurrence of several in-service stressors and the record contains a diagnosis of PTSD, apparently based upon a history of alleged stressors provided by the veteran. If the evidence establishes that the veteran engaged in combat with the enemy and his stressors are consistent with combat, the veteran's testimony alone may establish incurrence of the claimed in-service stressor. Otherwise, there must be credible supporting evidence that the veteran's claimed in-service stressors occurred. In a claim of entitlement to service connection for PTSD, the first consideration is whether the veteran engaged in combat. After carefully reviewing all pertinent evidence in this case, the Board finds that the veteran did not engage in combat with the enemy. Service department records show that while the veteran did serve as an infantryman, he did not receive any military citation indicative of combat service, such as the Purple Heart Medal or Combat Infantryman Badge. Although the veteran has stated that he was sent to Korea to "police up snipers and small arms fire," the record contains no indication that the veteran participated in any event constituting an actual fight or encounter with a military foe, hostile unit or instrumentality. Moreover, the veteran's personnel records contradict his assertions in that they do not show that the veteran was ever stationed in Korea. Considering this and the absence of awards or decorations indicating combat exposure, the Board finds that the veteran did not engage in combat. VA O.G.C. Prec. Op. No. 12-99, 65 Fed. Reg. 6,256-58 (2000) (defining "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b)). Thus, the veteran's testimony alone cannot establish the occurrence of his claimed in-service stressors. Accordingly, the veteran's alleged stressors must be supported by credible evidence. In this case, the veteran has reported various stressors over the course of his appeal, in particular witnessing two dead soldiers after they committed suicide, witnessing a soldier apparently fall to his death from a bunk bed as well as a fellow soldier kick another soldier to death, seeing the bodies of civilians who had died from malnutrition, being exposed to "enemy dead," and "policing up" snipers in Korea. The Board finds that the record contains no credible supporting evidence that these claimed stressors actually occurred. The veteran's service medical records and personnel records are silent with respect to the events comprising the veteran's alleged stressors. The veteran has not provided sufficient detail to allow VA to conduct additional evidentiary development in an attempt to corroborate his claimed stressors. After numerous requests of the veteran to provide more specific information, the veteran has proven unable to do so. The veteran has provided no evidence corroborating the occurrence of his claimed in- service stressors. For the foregoing reasons, the Board is unable to find as a factual matter that the veteran's alleged stressors ever actually occurred. In sum, the Board finds that the veteran did not have combat duty and his alleged in-service stressors have not been corroborated by official records, buddy statements, or any other supportive evidence. He has not produced any witness who can corroborate his testimony. Furthermore, the veteran's lack of detail about the alleged incidents makes it impossible for them to be corroborated. He has also provided contradictory information. For example, in a June 2003 statement he stated he woke up and found two Marine buddies who had committed suicide; this happened in Korea. In a July 2004 PTSD questionnaire he made no reference to buddies committing suicide, but referred to two Marines having a nervous breakdown in advanced training, and at his October 2005 hearing he stated he never knew of Marine buddies who committed suicide. The diagnosis of PTSD, reported by Dr. Bhasker and by a Vet Center readjustment counseling therapist and first shown many years after service, has not been attributed to a corroborated in-service stressor. Accordingly, service connection for PTSD must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable in the instant case and the claim for service connection for PTSD must be denied. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). For all of the foregoing reasons, the claim for service connection of PTSD must be denied. ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs