Citation Nr: 0005271 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 91-17 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania 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 R. E. Smith, Counsel INTRODUCTION The veteran had active military service from August 1968 to July 1970 and from June 1974 to June 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 1989 Department of Veterans Affairs (VA) rating decision by the Philadelphia, Pennsylvania, Regional Office (RO), which denied the veteran entitlement to service connection for PTSD. This case was before the Board in May 1996 and the issue of service connection for PTSD was remanded to the RO for further development. The case has since been returned to the Board and is now ready for appellate review. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of this appeal. 2. The veteran did not serve in combat. 3. Credible supporting evidence that an inservice stressor, which might lead to PTSD, actually occurred has not been adduced. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background. The veteran served on active duty in the United States Army during the Vietnam Era with service in Vietnam. Service personnel records show that during his tour in Vietnam from July 1969 to July 1970, the veteran's military occupational specialty (MOS) was wireman. He received no decorations evincing combat. The July 1970 separation examination noted a normal psychiatric clinical evaluation. On medical history obtained in May 1975 in connection with the veteran's administrative discharge from his latter period of service, the veteran indicated that he had and/or was currently experiencing depression or excessive worry as well as "nervous trouble." A clinical evaluation of the veteran at that time in connection with his service discharge found no psychiatric abnormality. VA clinical records reveal that the veteran was hospitalized at a VA medical facility in Coatesville, Pennsylvania, between mid-January and mid-February 1989 and also in May 1989. On both occasions the veteran was treated for drug dependence. During the former period of hospitalization, the veteran reported experiencing PTSD symptoms for the past 5 to 10 years and attributed all of his problems to his experiences in Vietnam. PTSD, as well as drug and alcohol dependence were the Axis I diagnoses. PTSD was also diagnosed on VA examination of the veteran in July 1989. On that occasion, the veteran reported as a stressor event, a 1969 Easter Day massacre of American soldiers in Cambodia and several occasions during which his artillery battery was overrun by enemy forces. At a personal hearing on appeal before a hearing officer at the RO in December 1989, the veteran related that, while he had a military occupational specialty of wireman during a tour of Vietnam, he actually performed duties there similar to those of an Infantryman. He specifically testified that he was involved in convoying materials, minesweeping, and performing guard duty. He further testified that he was in an artillery group during the majority of his tour. With respect to having received injuries in combat, the veteran testified that he "got a few scratches" and also that he turned down "medals and stuff" because "combat kind of got to me." A VA PTSD program psychologist in a statement dated in July 1990 reported that she was currently seeing the veteran for individual psychotherapy for PTSD. His treatment began in March 1990. She noted that the veteran exhibits a loss of trust in others, and a difficulty with authority figures that appears to stem from his experiences in Vietnam and the frequency with which he was ordered into extremely dangerous life-threatening situations. She observed that during his intake interview for the PTSD program the veteran was given the Combat Index and Impact of Events Scale to aid in the diagnosis of PTSD and that his scores were well within the range expected of someone with PTSD. She added that based on the test results and her work with the veteran it was her opinion that he suffered from PTSD. In a statement received in October 1992, the veteran reported that between August and September 1969 he witnessed two men in his company killed in the vicinity of "Tanin City--Black Virgin Mountain." He further indicated that in the latter part of July 1970 a friend of his was killed when the truck he was driving hit a land mine. He did not state that he witnessed this event. However in a later statement in February 1993 the veteran stated "I saw him get killed." In a February 1993 statement provided to the RO, the veteran reported that while in Vietnam he witnessed the death of a fellow soldier who was killed when the vehicle he was driving from the company area triggered a land mine. The veteran averred that he had volunteered to drive the truck that morning but that the assignment was given to his friend whom he identified as Spec 4 [redacted]. On file is a March 1994 letter from the Department of the Army, Director of the Environmental Support Group (now the Armed Services Center for Research of Unit Records (USASCRUR)), concerning the veteran's claim for PTSD. This letter reports that available US casualty files list a Corporal [redacted] as being killed in action on September 14, 1966. This letter further observes that this event did not occur during the veteran's tour of duty in Vietnam. On a PTSD examination in October 1994, the veteran reported that he served in Vietnam in a combat support capacity and indicated his responsibilities consisted of going out on convoys, standing guard duty, and doing mine sweeps. He reported specific stressors consisted of witnessing three children killed in an orphanage, being in the midst of shooting in general and watching a fellow soldier, "[redacted]," get hit by a land mine. Following a mental status examination at this time and the incorporation of psychological testing done in September 1994, for which no conclusions were drawn beyond the diagnosis of PTSD, PTSD was diagnosed. The examiner noted that the veteran met the clinical criteria for that diagnosis and that he was exposed to traumatic events in Vietnam where he either experienced or witnessed events that threatened life and he responded with fear. The examiner also reported that the veteran related persistent reexperiencing of the trauma, avoidance of stimuli associated with the trauma, and persistent symptoms of arousal of such a severity as to impair his social and occupational functioning. In a statement dated in April 1996, the veteran said that during his tour in Vietnam he was assigned to "C" Battery, 5th of 16 field artillery at Tay Ninh in August and September 1969. During that time he was positioned at the base of Black Virgin Mountain (Nui Ba Dien) at a place called "Rocket City" because of the daily bombardment of incoming mortars and rockets from the enemy. He stated that during the period he was there "members assigned" were killed by mortar and rocket attacks. He further stated that from April or early May 1970 until early July 1970 he was assigned to "B" Battery, 2nd of 35th Artillery at Tanh Linh. At this location, the veteran reported that they were attacked late one night and one soldier was wounded and another killed. He further related that the next day another individual was killed when his truck hit a land mine. In October 1996, the RO requested information regarding the activities of the veteran's units during the time periods above from the national archives and the USASCRUR. The national archive responded that they had on file records pertaining to the 2nd 35th Artillery during the Vietnam War. The veteran was informed by the RO and the means of obtaining these records. In May 1997, USASCRUR provided the RO with a copy of an extract of the Operational Report--Lessons Learned (OR--LL) submitted by the 25th Infantry Division. The OR--LL reported that from 11 to 14 September 1969 the enemy renewed attacks by fire against the 25th Infantry Division bases north of Tay Ninh City but that no casualty or damage from these attacks resulted as most of them failed to reach their targets. The report further noted that forward activities in the vicinity of Nui Ba Den Mountain continued with battles at the Southeastern foot of the mountain involving company "A" and elements of the 7th ARVN Airborne Battalion. Two US soldiers were killed and 5 Americans and 4 ARVN soldiers were wounded. In a statement dated in July 1997, the veteran stated that while his MOS was field wireman during his service in Vietnam he did not work as such during his tour of duty there. He said that for about a month and a half he was assigned to the 5th of the 16th Field Artillery "C" Battery located at Tay Ninh beneath the Black Virgin Mountain and performed duties as a perimeter guide. In September 1969 he indicated his unit was deactivated and he convoyed from Tay Ninh to Long Binh. During this journey four vehicles in his convoy were reportedly disabled by land mines. He was then assigned to the 2nd of the 35th Field Artillery "B" Battery, where he performed guard duties and on occasion acted as the "front point man" during mine sweeping operations on the roads between local villages and his base camp. He reported that he was also a "gunner" and had to count the bodies of enemy soldiers killed in action as one of his responsibilities. On a VA mental disorder examination in August 1998, the veteran told his examiner he saw combat in Tay Ninh City and then many different cities after that. He reported witnessing artillery duels and loss of life. On mental status examination, the veteran was found to be somewhat irritable and to show a hypervigilant expression. His mood was angry and depressed. It was noted that the veteran had not worked since 1989 and has been unable to keep a job. PTSD was diagnosed. Copies of the OR--LL for the 2nd Battalion 35th Artillery for the periods ending 31 October 1969, January 1970 and April 1970 were received in December 1998. The veteran has reported that he was assigned to the 2nd Battalion, 35th Artillery between May and July 1970 subsequent to the time frame encompassed by these OR--LL. In April 1999, the RO in a letter to the USASCRUR acknowledged the receipt of the above and requested that OR--LL for the 2nd Battalion 35th Artillery for the period of May 1, 1970, through July 12, 1970, the dates of the veteran's service with that unit, be provided. In a letter received in July 1999, the USASCRUR reported that available morning reports submitted in July, August and September 1969 by Battery C 5th Battalion, 16th Artillery did not list the veteran. They further noted that available US Army data lists attacks at Pleiku, Camp Enari, the base area for the 5th Battalion, 16th Field Artillery as well as attacks at Xuan Loc and Long Binh, the base areas for the 2nd Battalion 35th Field Artillery for the dates provided but did not list attacks at Tan Ninh the location provided by the veteran. The report indicates that for the period May to July 1970 the 23rd Artillery Group, the higher headquarters for the 2nd Battalion, 35th Artillery experienced no deaths from enemy actions although 14 individuals were wounded. Known hostile casualties consisted of 2 deaths and 41 injuries. Operational activities of the 23rd Artillery Group were focused in large measures on deployed task force operations supporting attacks into Cambodia. Clinical records, both VA and private, used by the Social Security Administration to award the veteran disability benefits were received from that organization. These records contained summaries of the veteran's VA hospitalizations between February 1975 and March 1998 and with further VA hospitalization reports compiled since 1989 document treatment provided to the veteran primarily for polysubstance and psychiatric problems, to include treatment for PTSD. These summaries do not contain any specific stressor information. The primary Axis I diagnoses during these multiple periods of hospitalization include PTSD, alcohol, opiate and cocaine abuse/dependence, personality disorder and bipolar disorder. On a VA psychological assessment in September 1996 the veteran reported that he was an Army combat veteran who served on a one-year tour of duty in Vietnam and that he has experienced trauma that still troubles him. In September 1997, the veteran provided psychosocial history to VA clinicians, which included a history of direct combat in Vietnam and a belief that he killed or thought he had killed someone in combat. Mental health clinician progress notes in April 1998 record that the veteran has recurring, near daily dreams either of his "buddy" being blown up by a land mine or of firing upon an orphanage. He blamed the Army for "not doing their job" several times, causing numerous catastrophic experiences including the death of his friend. The veteran related that he was in Vietnam between 1969 and 1970 and that he was nearly court martialed for strangling a colonel because he was upset about the death of his friend, which he thought was the result of negligence. Analysis. The threshold question in this case is whether the claim is well grounded under 38 U.S.C.A. §5107(a). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A veteran seeking service connection for PTSD must satisfy the initial burden of submitting a well-grounded claim by furnishing (1) medical evidence a current disability, (2) medical or lay evidence of an inservice stressor, and (3) medical evidence of a nexus between service and the current PTS disability. Cohen v. Brown, 10 Vet. App. 128 (1997). Under the law, the evidentiary assertions presented to well ground claims are presumed to be true for the limited purposes of ascertaining whether the claim is well grounded. See King v. Brown, 5 Vet. App. 19, 21 (1993). The well- grounded claim requirement parallels the role applied in civil actions to determine whether a complaint has stated a cause of action--a basis for affording the relief sought--for which purpose the facts alleged are accepted as true. Robinette v. Brown, 8 Vet. App. 69 (1995). Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the facts asserted are beyond the competence of the person making the assertion. See King, supra. The assertions of a lay party on matters of medical causation, diagnosis, or date of inception of a disability are not sufficient to make a claim well grounded. Moray v. Brown, 5 Vet. App. 211 (1993). The Board finds that the veteran has submitted a well- grounded claim of entitlement to service connection for PTSD. He has submitted (1) medical evidence of a current diagnosis of PTSD; (2) testimony of an inservice stressor, which the Board will accept as true for the limited purpose of determining whether the claim is well grounded; and (3) medical evidence of a nexus between service and the current PTSD disability. However, having found that the veteran's claim is well grounded does not end the Board's inquiry. Rather, in this case, it places upon VA the duty to assist the veteran in the development of his claim by affording him a medical examination and by obtaining relevant records, which could possibly substantiate his claim. Peters v. Brown, 6 Vet. App. 540 (1994); Butts v. Brown, 5 Vet. App. 532 (1993). The Board remanded this case in May 1996 for such development, which to the extent indicated by the evidence on file, has now been completed. The adjudication of a well-grounded claim for service connection for PTSD requires the evaluation of the evidence in light of the places, types and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military record, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); Cohen, 10 Vet. App. at 137. For a grant of service connection for PTSD, the governing regulation, 38 C.F.R. § 3.304(f), requires the presence of three elements: (1) A current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (i.e., in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) medical evidence of a casual nexus between current symptomatology and the specific claimed inservice stressor. (effective March 7, 1997, see 64 Fed. Reg. 32807-32808). Since VA Manual M21-1 provisions in Part VI, 11.38 are subject to the rules that are "the equivalent of VA regulations," Hayes v. Brown, 5 Vet. App. 308 (1991), they too are considered by adjudicators, but only to the extent they are more favorable to the veteran than Section 3.304(f) provisions. Cohen, 10 Vet. App. at 139. The DSM is also considered. Adopted by VA on November 7, 1996, the DSM-IV criteria are applied on all questions to which they are relevant to the extent these criteria are more favorable to the veteran. Cohen, 10 Vet. App. at 139-40. Regarding the initial § 3.304(f) PTSD element, if there is a current, clear and unequivocal diagnosis of record from a mental health professional, it is presumed to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor. Cohen, 10 Vet. App. at 140. The Board cannot use the DSM provisions themselves as a basis for rejecting either of these components of the diagnosis, but instead would have to rely on independent medical evidence. If the Board believes that a medical report does not comport with the applicable DSM diagnostic criteria, regulations require that it return the report to the regional office for clarification of further examination. Cohen 10 Vet. App. at 140. As to the second Section 3.304(f) element, the evidence necessary to establish the occurrence of a recognizable stressor during service varies depending on whether or not the veteran was "engaged in combat with the enemy." West v. Brown, 7 Vet. App. 70, 76 (1994). The Board is required to "make specific findings of fact as to whether or not the veteran was engaged in combat with the enemy and, if so, whether the claimed stressor is related to such combat." Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If the claimed stressor is not combat related, "the veteran's lay testimony regarding [an] inservice stressors is insufficient, standing alone, to establish service connection it must be corroborated by "credible evidence." Doran v. Brown, 6 Vet. App. 283, 289 (1994). After the fact medical-nexus evidence, however, cannot be used to establish the occurrence of the stressor. Moreau v. Brown, 9 Vet. App. 389 (1996), (affir'd September 9, 1997). Conversely, 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 the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish incurrence of the claimed inservice stressor. Clear and convincing evidence that a particular asserted stressful event did not occur may serve to rebut the lay evidence as to the inservice stressors. Cohen, 10 Vet. App. at 145. Thus, in order to grant service connection for PTSD to a noncombat veteran, there must be credible evidence to support the veteran's assertion that the stressful event occurred. The veteran's service records do not show that the veteran engaged in combat with the enemy. Service personnel records show that his primary MOS was that of wireman while serving in Vietnam. He received no decorations evincing combat. Notwithstanding the veteran's assertions, there is no evidence that the veteran was an Infantryman or performed "mine sweeping" or other combat operations. Based on the evidence, the Board concludes that the veteran did not engage in combat. The veteran in hearing testimony and in statements since 1989 has claimed exposure to a number of stressors. The stressor experiences includes exposure to enemy fire, enemy bodies, involvement in fire fights with the enemy, in attacks on an orphanage, and the witnessing of the deaths of fellow servicemen, including a friend by a land mine identified by the veteran in February 1993 as [redacted]. Specifically, the veteran indicated in February 1993 that this was his buddy for six months. The USASCRUR, in response to a request by the RO, reported in March 1994 that available US casualty files list a Corporal [redacted] as being killed in action on September 14, 1966. They further, however, noted that the veteran's other alleged stressors could not be verified. In fact, it appears that the veteran's recall of events in service tends to be significantly flawed and/or embellished as suggested by the reports of the death of Corporal [redacted]. This soldier as pointed out by USASCRUR in its March 1994 report was killed in action prior to the veteran's documented military service. While the veteran has reported seeing other individuals killed, he has not provided the identity of the individuals or otherwise established means of verifying this. Moreover the veteran's stressor stories have been inconsistent with time as well as with his documented unit history. While he has indicated on occasions that enemy forces have overrun the unit to which he has been assigned on several occasions the veteran made no mention of this at his personal hearing on appeal. Furthermore, such events did not comport with his unit history as reported in the OR--LL received from the USASCRUR. Specifically, these reports do not corroborate the veteran's assertions that his units at Tay Ninh came under enemy attack during the time he was based there or that hostile enemy acts or the actions of his units resulted in the events the veteran has depicted. In view of the inconsistencies between the veteran's allegations and the verifiable facts, the Board finds that he is not a credible witness. In short, the Board has carefully examined all the evidence of record and finds that there is insufficient credible supporting evidence to corroborate the occurrence of the claimed inservice stressors. The Board need not, and indeed cannot, under the circumstances, make a determination as to the existence of a current diagnosis of PTSD and a medical opinion that the PTSD has a nexus with a claimed inservice stressor. The Board bases its decision upon the lack of credible supporting evidence of a stressor during service. In the absence of such evidence, a required element of service connection for PTSD is missing and the appeal fails. In reaching this decision, the Board has considered the doctrine of granting the benefit of the doubt to the veteran but does not find that the evidence is proximately balanced such as to warrant its application. ORDER Service connection for PTSD is denied. J. E. DAY Member, Board of Veterans' Appeals