Citation Nr: 0721441 Decision Date: 07/17/07 Archive Date: 08/02/07 DOCKET NO. 97-34 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans LAW CLERK FOR THE BOARD C. Auringer, Law Clerk INTRODUCTION The veteran served on active duty from May 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York City, New York, which denied entitlement to the benefit currently sought on appeal. In March 2005, the Board remanded the claim for further development. Such was undertaken, and a supplemental statement of the case was issued in April 2007. The case was then returned to the Board for appellate review. FINDINGS OF FACT 1. The veteran did not engage in combat with the enemy during his service. 2. The veteran's alleged stressors are not supported by credible evidence. 3. Any current psychiatric disorder manifested many years after service and is not medically related to that service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not incurred or aggravated in the veteran's active duty service; nor may one be so presumed. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In correspondence dated in November 2003 and March 2005, the agency of original jurisdiction (AOJ) satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2006). Specifically, the AOJ notified the veteran of information and evidence necessary to substantiate the claim for service connection; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claim. Although this notice was delivered after the initial denial of the claim, the AOJ subsequently readjudicated the claim based on all the evidence in April 2007, without taint from prior adjudications. Thus, the veteran was not precluded from participating effectively in the processing of his claim and the late notice did not affect the essential fairness of the decision. Because service connection is denied, any question as to the appropriate disability rating or effective date is moot, and there can be no failure to notify prejudice to the veteran. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2006). Service personnel and medical records have been associated with the claims file. Regarding the post-service medical records, the veteran provided a release of information in February 2007, for records of November 2005 treatment at Harlem Hospital Center. While it does not appear that VA requested these records after receipt of the release of information, diagnosis and treatment for the applicable medical conditions are not critical to this decision. Earlier records establish this. The veteran does not allege that these treatment records contain a nexus statement, which is the key evidence not of record. All other identified and available treatment records have been secured. Therefore, in the circumstances of this case, additional efforts to assist the veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to inform and assist the veteran. Service Connection The veteran seeks service connection for an acquired psychiatric disorder which he contends is the result of his service. Current treatment records document diagnoses of PTSD, probable bipolar disorder or schizophrenia, and drug and alcohol dependence. Service connection requires that three elements be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2006); see also Hickson v. West, 12 Vet. App. 247, 252 (1999). Additional regulations specific to PTSD will be discussed separately below. Service medical records demonstrate that the veteran was treated for drug addiction and inadequate personality disorder while on active duty. See Report of Psychiatric Evaluation from June 1970. There is no evidence of treatment of PTSD, bipolar disorder, or schizophrenia. Regarding the veteran's diagnosis of drug addiction in service, an injury incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty, unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. 38 U.S.C.A. § 105(a) (West 2002); 38 C.F.R. § 3.1(m) (2006). "Willful misconduct" is an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n) (2006). Willful misconduct involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard of, its probable consequences. Id. The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(b)(3) (2006). Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability, such disability will be considered the result of the person's willful misconduct. Id. The veteran does not deny that he deliberately used illegal drugs on a regular basis while on active duty. Additionally, personnel records document a progressive and frequent use of drugs by the veteran, to the point of addiction. See Article 15 Proceedings Record, dated in March 1970; clinical records, dated in March and April 1970; and, undated statements from three of his superiors. After several documented incidents of illegal drug use, the veteran was referred for a psychological evaluation in June 1970. That evaluation report noted that the veteran was able to distinguish right from wrong and to adhere to the right. On the report's recommendation, the veteran was administratively separated from the military. Based on a thorough review, the preponderance of the evidence establishes that the veteran was abusing illegal drugs to the point of addiction during his active military service. It also establishes that any residual disability was proximately and immediately due to his abuse of illegal drugs. Under the applicable VA regulations described above, the veteran's actions fit the definition of willful misconduct and drug abuse. Thus, any disability resulting from such conduct cannot be considered service-connected. With regard to the in-service diagnosis of inadequate personality, in the field of mental disorders, personality disorders are not diseases or injuries within the meaning of the applicable legislation, and therefore not subject to service connection. 38 C.F.R. § 3.303(c) (2006). Furthermore, the June 1970 psychological report noted that the veteran did not have a psychiatric disease or defect which warranted disposition through medical channels. He was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. Thus, the sole diagnosis in service was inadequate personality, which is not a disease under the applicable legislation. Service connection is not warranted. Alternatively, service connection can be established when there is evidence that a chronic disease subject to presumptive service connection (here, the psychosis of schizophrenia) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006). A clear diagnosis of schizophrenia is not of record. However, VA progress notes in March 2003 indicate a differential diagnosis of the disorder. Presuming for the sake of this decision only that the diagnosis was later established, this is still well beyond the one year presumptive period for psychosis. Thus, presumptive service connection is not warranted. With regard to the diagnosis of PTSD, the veteran contends it is the result of his wartime service in Vietnam. VA regulations reflect that symptoms attributable to PTSD are often not manifested in service. Accordingly, service connection for PTSD requires a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor), credible supporting evidence that the claimed in- service stressor(s) actually occurred, and medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f) (2005); Cohen v. Brown, 10 Vet. App. 128, 138 (1997) (citing Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996)). If the evidence establishes that the veteran was engaged in combat with the enemy or was a prisoner of war (POW), and the claimed stressor is related to combat or POW experiences (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 Hayes v. Brown, 5 Vet. App. 60, 66 (1993). Where, however, the veteran did not engage in combat with the enemy and was not a POW, the veteran's lay statements, by themselves, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other credible evidence which corroborates the stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f) (2006); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). Such corroborating evidence cannot consist solely of after-the- fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. at 396. The veteran's service personnel records do not confirm that the veteran engaged in combat with the enemy. Nor was he authorized to wear any medals indicative of such service. In fact, in March 1970, the veteran received an Article 15 punishment for wrongfully wearing the Combat Infantryman Badge upon his uniform. Thus, independent evidence is required to corroborate his stressors in support of the diagnosis. The veteran alleges that he witnessed the sexual assault and killing of female prisoners and participated in keeping children away from the base's garbage dump through the use of a loaded M79. A request was made in August 2006 to the U.S. Army and Joint Services Records Research Center (JSRRC) (at that time named Center for Unit Records Research, or CURR) to verify the occurrence of the alleged stressors. CURR responded to the request, advising that an official report would have had to have been written and filed regarding the killing of civilians in order for those events to be verifiable. In this case, because there is no known written report regarding the alleged stressors, CURR was unable to verify their occurrence. The veteran's VA treatment report from May 2003 reports other stressors including children being run over on ammunition runs and an unnamed soldier being pulled from a burning truck. Events such as children being run over are also unverifiable, as no official record would exist to confirm their details. Because the veteran is unable to provide the name of the soldier he reports pulling from a burning vehicle, there is no way to independently verify this. Therefore, while such events may have occurred, they cannot substantiate a diagnosis of PTSD for the purposes of VA benefits. The Board does not dispute that the veteran carries a current diagnosis of PTSD and that he receives treatment for the same. VA outpatient clinical records show this clearly. However, under the governing regulations, treatment for the disorder is not enough to establish VA benefits. When the veteran has not engaged in combat, the diagnosis must be based on substantiated events. Because this veteran's diagnosis is based on unverified events, service connection cannot be granted. The preponderance of the evidence is found to be against the veteran's claim; therefore, the benefit of the doubt provision does not apply. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ J. E. Day Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs