Citation Nr: 0723511 Decision Date: 07/30/07 Archive Date: 08/14/07 DOCKET NO. 03-02 881A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Paul S. Rubin, Associate Counsel INTRODUCTION The veteran had active military service from February 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The veteran subsequently moved and jurisdiction of his claim was transferred to the RO in Jackson, Mississippi. The veteran currently lives in Mississippi. In August 2004, the current claim before the Board was remanded for the RO to provide the veteran further notice with regard to his alleged stressors. This task was completed. The Board also confirmed the RO's denial of service connection for bilateral hearing loss and tinnitus. The veteran has not appealed this matter. Therefore, the Board's August 2004 decision, which subsumes the prior RO decision, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1104 (2006). FINDINGS OF FACT 1. The veteran did not engage in combat with the enemy. 2. There is insufficient corroborating evidence that the veteran's alleged in-service stressors, to which the development of PTSD is attributed, actually occurred. CONCLUSION OF LAW Service connection for PTSD is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2006). Generally, service connection requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with VA regulations; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A "clear" diagnosis of PTSD is no longer required. Rather, a diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). 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. 38 C.F.R. § 3.304(f). See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). If VA determines that the veteran did not engage in combat with the enemy, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Just because a physician or other health professional accepted appellant's description of his Vietnam experiences as credible and diagnosed appellant as suffering from PTSD does not mean the [Board is] required to grant service connection for PTSD." Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). In this regard, a medical provider cannot provide supporting evidence that a claimed inservice event actually occurred based on a post-service medical examination. Moreau, 9 Vet. App. at 395- 96. The veteran's own statements will not be sufficient. Id. The veteran contends that he suffers from PTSD as the result of the following in-service stressors in Vietnam: (1) He indicates that he was assigned to collect dead bodies as a part of burial detail; (2) he indicates that he witnessed a friend blown up in a truck in front of the truck he was in; (3) he indicates he witnessed another friend lose a body part during combat duty; (4) he indicates that he was wounded himself by mortar fire while running to a bunker; (5) he indicates he feels responsible for the loss of fellow service members who got stuck in a rice paddy while letting the veteran pass on a one lane road; (6) he indicates he witnessed Vietnamese soldiers and citizens die as the result of his actions; and (7) he indicates that his company sustained mortar fire almost everyday. See VA Vet Center/psychologist letter dated July 2001; VA outpatient exam dated February 2003; and PTSD questionnaire dated August 2003. Initially, the Board finds no evidence that the veteran engaged in combat with the enemy. Although the veteran served in a combat zone in Vietnam from August 1968 to August 1969, the veteran's service personnel records (SPRs) do not reflect receipt of medals, badges, or decorations that specifically denote combat with the enemy. SPRs indicate that he participated in the Vietnam Counter Offensive, Phase V, but there is no specific mention of combat. Service medical records (SMRs) are negative for any evidence of in-service wound that could relate to combat, providing evidence against a stressor cited above. SPRs show his military occupational specialties as a welder and a recovery truck driver. In fact, according to a VA outpatient exam report dated February 2003, the veteran himself indicated that he had no combat experience, providing more evidence against this claim. Therefore, because there is no evidence of combat with the enemy, there must be credible supporting evidence that the claimed in-service stressors actually occurred. 38 C.F.R. § 3.304(f); Cohen, 10 Vet. App. at 147; Moreau, 9 Vet. App. at 395. The Board acknowledges that the record demonstrates that PTSD has been diagnosed. See Social Security Administration (SSA) examination dated August 2003, VA inpatient records dated January 2002, and VA Vet Center/psychologist letter dated July 2001. However, as noted above, the Board is not required to accept an appellant's uncorroborated account of his active service experiences. Thus, the remaining question is whether there is credible supporting evidence that the alleged in-service stressors actually occurred. In this respect, the RO has been able to attempt to verify the veteran's alleged in-service stressors. Despite numerous written requests from the RO and a Board remand, the veteran has not provided adequate information to verify the stressors. The veteran must provide the RO, at a minimum, the dates of his stressors (within 2 months), the specific unit he was assigned to at the time of each stressor, the specific location of each stressor, and the full names of U.S. soldiers who were killed. SPRs confirm the specific units the veteran was assigned to in Vietnam, but the veteran has not provided any of the other necessary information. Specifically, as to burial detail, SPRs do not show any assignment to burial detail or graves registration duty. The veteran' MOS reflected by SPRs does not support such an assignment. In the alternative, the veteran has not submitted a buddy statement from a fellow soldier confirming such a stressor. With respect to his stressor of seeing fellow soldiers killed or wounded, the veteran has not submitted the names of those wounded or killed, or a specific two-month time frame for the incidents. With respect to his claim that he himself was wounded by mortar fire, SMRs and SPRs are negative for any indication that the veteran was wounded by enemy fire, providing strong evidence against the PTSD claim and diminishing his overall credibility. The fact that the veteran can not recall the name of his friends either killed or wounded in service, as the veteran alleges he witnessed these events, is found to diminish his credibility further, providing more evidence against this claim. With respect to his claim that he witnessed enemy soldiers and civilians die, when corroboration or verification is not feasible as in the case of civilian casualties, enemy casualties, sniper attacks, mistreatment of enemy prisoners, or events that occurred while travelling in a convoy, a referral to the Joint Services Records Research Center (JSRRC) is not warranted. These incidents are not verifiable and would not be of record. In these instances, a buddy statement from a fellow soldier would be required in order to corroborate the alleged stressor. The veteran has not submitted any buddy statements. He submitted two names of fellow service members, but failed to provide their addresses despite several requests by the RO to do so. Further, the fact that the veteran can not provide information regarding stressors that could be confirmed by the VA (for example, the death of a fellow serviceman), supports a finding that further efforts to confirm the veteran's stressors is not warranted in this case. Finally, as to the mortar attacks on his unit, the Board is cognizant of the case of Pentecost v. Principi, 16 Vet. App. 124 (2002), wherein the Court reversed the Board's denial of a claim for service connection for PTSD on the basis of an unconfirmed in-service stressor. However, in Pentecost, the claimant submitted evidence that his unit was subjected to rocket attacks. The facts in this case are easily distinguishable because the veteran has not only failed to submit independent evidence of the occurrence of the claimed in-service stressors, he has supplied the VA negative stressor evidence in the form of his many statements to the VA over time, that the Board has found provides evidence against his claims. Notably, mortar attacks on his unit were not listed as a stressor in the comprehensive VA Vet Center/psychologist letter dated in July 2001. Simply stated, the veteran's stressors in service are not always consistent. The photograph he has provided does not indicate a stressor in service, and his statements regarding his stressors are not always clear and rarely consistent. For example, the veteran stressors as cited in his August 2003 statement is not the same as his stressor statement in VA treatment. As stated above, because the veteran's claimed stressors are unrelated to combat, their occurrence must be supported by credible, corroborative evidence. In this case, the Board actually has some evidence that refutes the veteran's stressors statements, rather than supporting the stressors statements. In conclusion, the Board finds that the veteran has not alleged a in-service stressor that is verified or verifiable based on the information provided, which could provide a basis for the diagnosis of PTSD. Accordingly, the Board finds that the preponderance of the evidence is against service connection for PTSD. 38 U.S.C.A. § 5107(b). Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the veteran dated October 2001, December 2003, September 2004, August 2005, March 2006, and September 2006. The veteran was also provided with attached PTSD questionnaires. Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) Informing the veteran about the information and evidence not of record that was necessary to substantiate the claim; (2) informing the veteran about the information and evidence the VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran provide any evidence in his possession that pertains to his claim. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With regard to the first element of notice, additional March 2006 and September 2006 correspondence from the RO further advised the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Notably, the RO did not provide Dingess notice of the first element prior to the initial adjudication on appeal. Pelegrini, 18 Vet. App. at 120. It is important to note that the decision in Dingess was only recently issued by the Court. Therefore, there was no basis for the VA to act in accordance with a Court decision that did not exist until March 2006. With regard to the fourth element of notice, only the supplemental September 2004 and August 2005 VCAA letters specifically ask the veteran to provide any evidence in his possession that pertains to the claim. Pelegrini, 18 Vet. App. at 120-121. Notably, the RO did not provide notice of this element prior to the initial adjudication on appeal. Id. at 120. In this regard, most recently, in Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16, 2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial. In other words, any error in the timing of VCAA notice or the content of the four elements of VCAA notice is presumed prejudicial, and the VA has the burden of rebutting this presumption by showing that the error was not prejudicial to the veteran in that it does not affect the essential fairness of the adjudication. To do this, the VA must demonstrate: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. The Board finds that the presumption of prejudice due to the timing error for the first (Dingess) and fourth elements of VCAA notice has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, the veteran clearly has actual knowledge of the evidence he is required to submit in this case; and (2) in this case, based on the veteran's contentions and the communications provided to the veteran by the VA over the course of this appeal, the veteran reasonably understands from the notices provided what was needed. Specifically, the veteran submitted a PTSD questionnaire and personal statements showing actual knowledge of the evidence required for his PTSD claim. In addition, the actual supplemental notices provided by the VA are clear and pertinent to the veteran's contentions, such that a reasonable person could understand what was required to prove the claim. The veteran simply did not respond to many of the numerous VCAA letters sent to him in this case. Overall, even though the VA, under Sanders, may have erred by relying on various post-decisional documents to conclude that adequate VCAA notice has been provided, the veteran was afforded a meaningful opportunity to participate in the adjudication of his claim. Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) Further, the Board emphasizes that the Federal Circuit also recently held that the provision of adequate VCAA notice prior to a "readjudication decision" such as a SOC or supplemental statement of the case (SSOC) "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II). In this vein, the RO issued all VCAA notice letters prior to readjudication of the claim in the March 2007 SSOC. With respect to the duty to assist, the RO has secured the veteran's SMRs, SPRs, VA treatment records, and SSA records. The case was remanded by the Board in order to provide even further assistance to the veteran. A VA medical examination and opinion for PTSD is not necessary in this case, because even if a medical opinion diagnosed the veteran with PTSD, it would not suffice to corroborate the actual occurrence of the claimed in-service stressors. Cohen, 10 Vet. App. at 142; Moreau, 9 Vet. App. at 395-396. The veteran's representative has also requested further development in regard to the veteran's alleged in-service stressors. In the case of records requested to corroborate a claimed stressful event in service, the veteran must provide information sufficient for the records custodian to conduct a search of the corroborative records. 38 C.F.R. § 3.159(c)(2)(i). The veteran has not done so in this case, as he has not provided the specific names of deceased service members, buddy statements, or a 60-day time frame for the alleged incidents and his stressor statement are not always consistent. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board is also satisfied as to compliance with its instructions from the August 2004 remand. Thus, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs