Citation Nr: 0000934 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 97-17 227A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of a gunshot wound of the left shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran had active military service from July 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1995 rating decision in which the RO denied service connection for PTSD and residuals of a gunshot wound of the left shoulder area and granted a permanent and total disability rating for pension purposes. The veteran appealed the denial of service connection for PTSD and residuals of a gunshot wound of the left shoulder area. He was afforded a hearing at the RO in August 1996. His claims were denied by the hearing officer, as reflected in the May 1997 supplemental statement of the case (SSOC). Thereafter, the veteran appeared before the undersigned member of the Board for a hearing at the RO in July 1999. FINDINGS OF FACT 1. The veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for PTSD is plausible. 2. The veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for residuals of a gunshot wound of the left shoulder area is plausible. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim of service connection for PTSD. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). 2. The veteran has not submitted a well-grounded claim of service connection for residuals of a gunshot wound of the left shoulder area. 38 U.S.C.A. §§ 1110, 1153, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In order to establish service connection for a disability, there must be objective evidence that establishes that such disability either began in or was aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Such a determination requires a finding of a current disability which is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet.App. 309, 310 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.304 (d) (1999). The threshold question in this case is whether the veteran has presented a well-grounded claim. A well-grounded claim is one which is plausible. If he has not presented a well- grounded claim, the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). A well- grounded claim requires more than an allegation; the claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Also, in order for a claim to be well-grounded, there must be competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in- service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498, 506 (1995). PTSD The Board notes that during the course of the veteran's appeal, the regulation governing service connection for PTSD was amended, 38 C.F.R. § 3.304(f), in accordance with the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (the Court), decision in Cohen v. Brown, 10 Vet. App. 128 (1997). The effective date of the changes in the regulation was March 7, 1997. As explained below, we find that the veteran's claim for service connection for PTSD is not well-grounded for the reason that there is no verified stressor to support the diagnosis of PTSD. Because the necessity of a verified stressor is required under both the old and new regulation, a remand is not warranted pursuant to the provisions of Karnas v. Derwinski, 1 Vet. App. 308 (1990). Under the new regulation, service connection for PTSD now requires medical evidence establishing a diagnosis of the condition in accordance with the provisions of 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. 64 Fed. Reg. 32,807-32808 (1999) (to be codified at 38 C.F.R. § 3.304 (f)); Cohen, supra. The veteran's service medical records are negative for complaints, findings, or diagnosis of any psychiatric disorder. The veteran's service personnel records reflect that the veteran was a clerk typist in service. He did not receive any awards or military decorations which would confirm that he engaged in combat. Post-service treatment records reflect that the veteran has been treated for substance abuse problems, depression, personality disorder, and symptoms of PTSD. The veteran has participated in individual and group therapy for ongoing PTSD symptoms, substance abuse and major depression. A psychological assessment in September 1993 noted diagnoses of major depression, polysubstance dependence in remission and PTSD, by history. The veteran was hospitalized in April 1994 after indicating that he might kill himself or someone else. The veteran was depressed and anxious and a blunted affect. He was admitted to the locked unit as a danger to himself and others. He reported intermittent auditory hallucinations which were felt by the hospital staff to be perhaps secondary to malingering by the veteran. The veteran stabilized and was transferred to an open unit on the ward. He was subsequently discharged irregularly after failing to return from a six hour pass and drinking alcohol while on pass. The discharge diagnoses included adjustment disorder with depressed mood and mixed personality disorder with anti-social and borderline traits. PTSD was not diagnosed. In a statement of May 1994, the veteran reported the following stressful experiences in service to support his claim for entitlement to service connection for PTSD: (1) upon his arrival in Vietnam on December 24, 1966, at the Tan Nuet air base, he was bused to Bien Hoa to join the 90th Replacement. There was supposed to be a Christmas truce, but the veteran said that the base camp was immediately subjected to mortar attack on his arrival. There were casualties as a result of this incident; (2) after it was determined that the veteran should not have been at Bien Hoa, he was put into a military taxi to go to Saigon. The Vietnamese driver of the taxi kept hitting women and children who did not get out of his way fast enough; he explained that if he slowed down too much, a grenade could be attached to the taxi. During his ride in the taxi, at least 8 people were hit and some of them were killed; (3) after reporting to the III corps Signal Division in the Cholan District of Saigon, the veteran was assigned to live in the Keyson Hotel off Trai Hung Dau. Every once in a while, maids who were actually working for the Vietcong would bring plastic explosives and "rig" the rooms for detonation; (4) during the time that he was assigned as the personal driver for the Colonel, he was fired upon even at times when there were armed escorts; (5) while he was living in Saigon, there was a Vietcong sharp-shooter roaming the streets shooting U.S. officers between the eyes. After about 4 months of sniper attacks, she was shot off the back of a motorcycle; she was known as "Annie Oakley" by everyone; (6) there were Vietnamese gangs called "cowboys" who robbed and killed American GIs especially on pay-days. A letter dated in May 1994 was received from a readjustment counseling specialist at the Vet Center in Oakland, California, wherein it was indicated that the veteran had been seen for a total of 5 visits beginning in August 1993. The veteran had sought assistance for symptoms of chronic depression, anger/rage, substance abuse in remission, alienation, isolation, survivor guilt and low self-esteem. He had complained of having these symptoms since his return from Vietnam. The counseling specialist noted that the veteran's visits were scattered and did not allow enough consistency for meaningful treatment. No diagnosis of PTSD was indicated. On VA psychiatric examination in July 1994, the veteran reported that he served in Vietnam as a personal clerk and driver to a colonel and not as a clerk typist which is reflected in his personnel records. He was assigned to a signal unit and his job consisted of driving the colonel either to survey areas for communication, to set up or restore communications that were down after attacks by the Vietcong. The veteran stated that he was shot by some "cowboys" who had tried to rob them one night. He also described the day that he first arrived in Vietnam on Christmas eve; there was supposed to be a truce but as soon as he reached the area where he was supposed to receive his orders, the base was under mortar attack. He was issued a gun that he didn't know anything about. The veteran indicated that he observed a man being shot in front of him. He later went to a different unit and while traveling to that unit, the veteran stated that the jeep drive hit 10-15 Vietnamese people because he was going so fast. The veteran said that blood was spattered on the windshield from the people who were hit by the jeep. The veteran complained of disturbed sleep and recurring dreams of explosions and fighting. He described an increased startle response and hypervigilance; he is always watching people around him and checking the windows and doors at his home. On examination, the veteran's mood was dysphoric and his affect was blunted. There was no loosening of association or flight of ideation; his thought processes were logical and goal-directed. The veteran denied hallucinations and was neither delusional or suicidal. He was noted to have intrusive thoughts about his Vietnam experience. Judgment and insight were both reported to be fair. Memory was intact and the veteran was well-oriented to time, place, person and purpose. The VA examiner concluded that the veteran had PTSD and that his PTSD symptoms were related to his service in Vietnam. The diagnosis of PTSD by the VA examiner was not based on verified stressors. The RO attempted to verify the veteran's reported stressors with the U.S. Armed Services Center for Research of Unit Records (USASCRUR) [formerly The U.S. Army & Joint Services Environment Support Group (ESG)]. In a January 1995 response, USASCRUR indicated that the veteran's unit was located in a different area (Long Binh) than that claimed by the veteran on December 24-25, 1966 (Bien Hoa). However, a review of records for both locations did not establish that either location was attacked during the period that the veteran indicated. U.S. Army records documented that Long Binh was attacked on December 10, 1966. With respect to the veteran's reports of being in constant fear of his life, witnessing casualties or using a 50 caliber machine gun during an enemy attack were noted to be anecdotal reports that are seldom found in the combat records available to USASCRUR for research purposes. It was also indicated that USASCRUR could not verify that the veteran had performed the duties of a driver for a colonel during his Vietnam tour. The veteran's reports of information about civilian incidents, including the episode with the Vietnamese taxi driver, the sniper known as "Annie Oakley", or the Vietnamese "cowboys," are not the type of incidents that would be reported in the combat records and are extremely difficult to verify. In February 1996, VA treatment records reflect a diagnosis of mood disorder secondary to chronic substance abuse. At his RO and Board hearings in August 1996 and July 1999, respectively, the veteran testified to essentially the same in-service stressful experiences described above. He related that he had also been assigned to pick up wounded and dead bodies after the attack on December 24, 1966. He stated that he observed missing arms, legs, shrapnel and individuals who were missing parts of their faces. He said that he was exposed to small arms fire while performing his duties with the signal unit driving his colonel to set up communications. The veteran described the sniper known as "Annie Oakley" and indicated that this caused a great deal of stress for him when he was in Saigon because he had no weapon. After his discharge from service, the veteran indicated that he had always known he hated Christmas and could not be around people for long periods of time, but it was not until more than 20 years later that he sought treatment for PTSD. The veteran has maintained that he engaged in combat with the enemy in Vietnam. The evidence of record does not support this contention. The veteran's MOS in service was clerk typist; there is no evidence that he served as a personal clerk and driver to a colonel in the field. The veteran's reports of particular mortar attacks on December 24, 1966 do not match with the data provided by USASCRUR concerning attacks sustained by the veteran's unit. The veteran's other reported stressors are anecdotal in nature and not capable of verification. In sum, the evidence does not establish that the veteran engaged in combat with the enemy during his service in Vietnam. The current evidence of record contains a diagnosis of PTSD based on unverified stressors. The veteran has communicated several in-service stressful experiences. However, a report from USASCRUR has specifically failed to confirm any of the veteran's reported stressful experiences. The service medical records are negative for diagnosis or treatment of PTSD or any psychiatric disorder. Further, while the VA examiner in July 1994 linked a current diagnosis of PTSD to the veteran's military service, the diagnosis was not based on verified stressors and is not valid for purposes of the veteran's claim for service connection for PTSD. In the absence of a verified stressor to support the diagnosis of PTSD which has been linked to military service, the veteran's claim is not well-grounded and service connection for PTSD cannot be granted. Residuals of a Gunshot Wound of the Left Shoulder Area In addition to the regulatory provisions pertaining to service connection set forth above, a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is clear and unmistakable evidence that the increase in disability is due to natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306. On enlistment examination in June 1966, the veteran was noted to have a circular scar on the left shoulder. Appellate review of the service medical records is negative for any evidence that the veteran sustained a gunshot wound of the left shoulder area in service. There are no post-service records showing treatment for residuals of a gunshot wound of the left shoulder area. At the time the veteran filed his initial claim for service connection, he asserted that the gunshot wound was sustained in October 1967, and was treated in Saigon. At his RO hearing in August 1996, the veteran testified that the scar in the area of his left shoulder that was noted on enlistment examination was from a childhood bout with poison oak; later, in Vietnam during service, the veteran maintains that he received a gunshot wound in the same area which enlarged the original scar. He testified that the gunshot wound was sustained during the rainy season in November 1966. He related that he was on leave with a few other servicemen in-country and they got into a scuffle with some local Vietnamese. During the process of trying to get away from the scene, the veteran stated that he was shot in the left shoulder area. He was with two medics and they cleaned the entrance and exit wound and bandaged it. The veteran indicated that he has never seen any doctor for treatment of the area of the left shoulder wherein he was shot. The Board notes that, according to his service personnel records, the veteran did not arrive in Vietnam until December 1966. At his Board hearing before the undersigned member of the Board in July 1999, the veteran testified that he sustained the gunshot wound to his left shoulder area during the summer of 1967, in June or July. He again indicated that his wound was cleaned by two of his friends who were medics. He said that they were afraid to have it treated by anyone else because of fear of court-martial if it was discovered where they had been at the time of the incident (a bar that had been declared "off limits" to them). In summary, the enlistment examination demonstrates the pre- service existence of a scar in the area of the left shoulder. The presumption of soundness with respect to the circular scar on the veteran's left shoulder has been rebutted. There is no evidence in the service medical records that the veteran sustained any gunshot wound of the left shoulder area in service or that he received treatment of any kind for a disability of the left shoulder area in service. The veteran has not received any treatment for the left shoulder since discharge from service. Further, he has not presented medical nexus evidence that links any current residual of a claimed gunshot wound of the left shoulder area to an incident of military service, or to continued symptoms since service. Consequently, the Board concludes that the evidentiary requirements set forth in Caluza for a well- grounded claim have not been met. The claim for entitlement to service connection for residuals of a gunshot wound of the left shoulder area is not well grounded and the appeal on that issue is denied. ORDER 1. Service connection for PTSD is denied. 2. Service connection for residuals of a gunshot wound of the left shoulder is denied. N. R. ROBIN Member, Board of Veterans' Appeals