Citation Nr: 0705178 Decision Date: 02/22/07 Archive Date: 02/27/07 DOCKET NO. 03-32 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The veteran served on active duty from December 1967 to November 1969 and from September to December 1974. The instant appeal arose from an April 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in New Orleans, Louisiana, which denied a claim for service connection for PTSD. FINDINGS OF FACT 1. The veteran did not engage in combat with the enemy. 2. There is no credible supporting evidence that the in- service stressor claimed by the veteran actually occurred. CONCLUSION OF LAW PTSD was neither incurred in nor aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION A grant of service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence between the current symptoms and an in- service stressor; and credible supporting evidence that the claimed stressor occurred. 38 U.S.C.A. §§ C.F.R. § 3.304(f). The law provides that "[i]f 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. §§ C.F.R. § 3.304(f)(1) (2006). Where, however, VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is not related to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence which corroborates the veteran's testimony as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f); West v. Brown, 7 Vet. App. 70, 76 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Having carefully reviewed the evidence of record in light of the veteran's contentions and the applicable law, the Board finds that the veteran's claim fails because there is no evidence that the veteran sustained a qualifying in-service stressor. The preponderance of the evidence does not show that the veteran engaged in combat with the enemy. He has stated repeatedly that he never served in a combat zone or experienced combat. There is no indication in the veteran's service personnel records of participation in combat operations or awards and decorations due to combat. The service medical records do not show combat-related complaints, treatment, or diagnosis. For these reasons, the Board finds initially that the veteran did not engage in combat with the enemy within the meaning of 38 U.S.C.A. § 1154(b). There is no evidence which could support such a finding, and there is substantial evidence which supports a conclusion that he did not participate in combat. See Gaines v. West, 11 Vet. App. 353, 359 (1998). Accordingly, his statements and testimony concerning the alleged stressors may not be accepted, standing alone, as sufficient proof of their occurrence. Id. The veteran has asserted that he has PTSD based on a stressor that occurred around October 1969, when he served in Germany during his first period of service. He reports that while maneuvering two tanks near a riverbank he watched the tank he was directing back up and crush a fellow soldier to death. The soldier's name was "Lewis" and was the appellant's roommate. He then retrieved the body after it had fallen into the river. The veteran's service medical and personnel records show that he was stationed in Germany from June 1968 to November 1969 and that he was a tracked-vehicle crewman. Numerous inquiries were made in attempts to develop information which confirmed the veteran's recollections. The National Archives and Records Administration was unable to confirm the incident. The National Personnel Records Center (NPRC) responded that no pertinent remarks were found in morning reports of the veteran's company for the period in question. Likewise, the U.S. Armed Services Center for Research of Unit Records (USASCRUR) (now the U. S. Army and Joint Services Records Research Center (JSRRC)) was unable to document the tank incident after extensive research. None of the other evidence in the claims files constitutes "credible supporting evidence," required by 38 C.F.R. § 3.304(f), that any claimed stressor actually occurred. The veteran and his representative have asserted that a social work evaluation from the veteran's short second period of service supports the claim as it describes that the veteran was socially isolated since his first period of service, secluded himself from others, was extremely nervous and uncomfortable in the military environment, and as a result follow up was recommended at the mental hygiene clinic and he was administratively discharged after less than three months. However, the November 1974 military social work service evaluation is not credible supporting evidence that the claimed tank incident actually occurred. There is no mention of the tank incident in the November 1974 social work note. Further, the social worker's assessment was not that the veteran's social isolation and mental health issues had originated in or resulted from his first period of service. Rather, the social worker indicated that the veteran had a "lifelong history" of such problems, including difficulty in school, inappropriate acting out, and passivity, prior to service. The Board notes in this regard that VA health care providers have accepted the veteran's contentions regarding his uncorroborated service experiences and diagnosed PTSD. However, as explained above, the preponderance of the evidence leads to the conclusion that the claimed stressor did not occur as there is no credible supporting evidence of the reported incident. Credible supporting evidence of the occurrence of an in-service stressor cannot consist solely of after-the-fact reports of such stressors by the veteran to a medical care provider, even where the provider expresses "no doubts as to [the veteran's] honesty in his reports." See Moreau at 395-6. Accordingly, as the preponderance of the evidence does not support a finding that the veteran engaged in combat with the enemy and in the absence of evidence to support the veteran's alleged in-service stressor, service connection for PTSD is denied. 38 C.F.R. § 3.304(f). Duty to Notify and Duty to Assist The Board finds that VA has met its duties to notify and assist. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (CAVC or Court) held that proper notice must inform a claimant of any information and evidence not of record (1) needed to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. Interpreting 38 C.F.R. § 3.159(b)(1), the Court also held that VA must ask him to submit any pertinent evidence in his possession ("fourth element"). Notice should be given to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. VA provided the requisite notice by means of a notice letter dated in August 2001, which was issued prior to the initial adjudication of the claim in April 2002. The letter advised him of the duty to assist and the duty to notify. He was told of the requirements to establish a successful claim for service connection. He was advised of his and VA's respective duties, and he was informed that he could sign a release that gave VA the authority to request the records for him, or he could "get these records yourself and send them to us." (Emphasis added). The Board acknowledges that the aforementioned letter did not contain any specific notice with respect to how a rating and/or effective date would be assigned if service connection was established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes, however, that questions with respect to rating and effective date are not currently before the Board. Indeed, as set forth above, the Board has determined that the veteran's claim for service connection for PTSD must be denied. Consequently, no rating or effective date will be assigned for such disorder as a matter of law. The purpose of the notice requirement has been satisfied with respect to the issue that is currently being adjudicated. No further corrective action is necessary. VA's duty to assist a claimant in substantiating his claim (see 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2005)) also has been satisfied. The duty to assist contemplates that VA will help a claimant obtain relevant records, whether or not the records are in federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. Service medical records, available service personnel records, and VA treatment records have been associated with the claims folders. As noted above, VA has made numerous efforts to develop corroborating evidence with regard to this claim from alternate sources. However, as these efforts have led to negative results, the Board concludes that further efforts to obtain these records would be futile. The veteran has not identified any additional available evidence which is pertinent to the claim adjudicated in this decision and where reasonable efforts have not been made to associate it with the claims folder. The veteran underwent a VA PTSD examination in 2002. The veteran's representative has specifically requested that another VA examination be provided to address the link between any currently diagnosed PTSD and service. VA's duty to assist does not require another examination with medical opinion as the lack of evidence of combat or a confirmed stressor mean that a VA examination is not necessary in order to make a decision on the claim. The Board therefore finds that VA has satisfied its duty to notify and assist. ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs