Citation Nr: 0007321 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 97-21 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The appellant had active duty from March 1971 to March 1972. This matter comes before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a May 1996 rating decision of the Department of Veterans' Affairs (hereinafter "VA") Regional Office in Huntington, West Virginia (hereinafter "RO"), which denied the veteran's claim for post-traumatic stress disorder (PTSD). FINDINGS OF FACT 1. The veteran did not engage in combat. 2. The veteran's PTSD has not been attributed to a verified inservice stressor and is otherwise not shown to be related to his period of active military service. CONCLUSION OF LAW PTSD was not incurred in or aggravated by the veteran's active military service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In May 1996, the RO denied the veteran's claim after finding that there was no verifiable stressor to support the veteran's diagnosis of PTSD, and that the veteran had failed to submit details of his stressors which would otherwise warrant an attempt to verify the claimed stressors. The veteran has appealed. As a preliminary matter, the Board finds that the veteran's claim is plausible and capable of substantiation and is thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). The record includes medical diagnoses of PTSD, and the veteran has put forth assertions regarding stressors during his service. Further, in view of the efforts by the RO to verify the claimed stressors and the fact that two VA examinations have been conducted in connection with the veteran's claim, the Board believes no further assistance to the veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Applicable regulations provide that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125, 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. See 38 C.F.R. § 3.304(f). As indicated above, claims for service connection for PTSD are evaluated in accordance with the criteria set forth in 38 C.F.R. 3.304(f). In this regard, the Board notes that amendments to those criteria became effective on March 7, 1997, during the pendency of the veteran's appeal. See Direct Service Connection (Post-Traumatic Stress Disorder), 64 Fed. Reg. 32,807 (1999) (to be codified at 38 C.F.R. § 3.304(f) (1999)). In Karnas v. Derwinski, 1 Vet. App. 308 (1991), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) noted that when the law controlling an issue changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, "the question arises as to which law now governs." Id. at 311. In that regard, the Court held that: [W]here the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to [the] appellant . . . will apply unless Congress provided otherwise or permitted the Secretary of [VA] (Secretary) to do otherwise and the Secretary did so. Id. at 313. See also Baker v. West, 11 Vet. App. 163, 168 (1998); Dudnick v. Brown, 10 Vet. App. 79 (1997) (per curiam order). The Board finds that the old and new criteria for evaluating PTSD claims are substantially the same. Both versions of the applicable regulation require medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed inservice stressor occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. at 138. The new revisions serve primarily to codify the Court's decision in Cohen, and bring 38 C.F.R. § 3.304(f) in line with the governing statute, 38 U.S.C.A. § 1154(b), which relaxes certain evidentiary requirements for PTSD claimants who have combat-related stressors. Under 38 U.S.C.A. § 1154(b), Cohen, and the new version of 38 C.F.R. § 3.304(f), if the evidence establishes that the veteran engaged in combat with the enemy, or was a 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 inservice stressor. Where, however, VA determines that the veteran did not engage in combat with the enemy, and was not a POW, or the claimed stressor is not related to combat or POW experiences, 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 1991); 38 C.F.R. § 3.304(d), (f); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). The Board finds that the new regulation has not changed the applicable criteria in a way which could alter the outcome of the veteran's claim. The revisions serve only to codify the Court's decision in Cohen, and bring 38 C.F.R. § 3.304(f) in line with the governing statute, as noted above. Therefore, the veteran would not be prejudiced by the Board proceeding to the merits of the claim. Indeed, a remand of this issue would only result in needless delay and impose further burdens on the RO, with no benefit flowing to the veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); see also Hayes v. Brown, 5 Vet. App. 60, 66 (1993). The evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). In this regard, a review of the veteran's written statements and testimony shows that he asserts that he participated in combat as a door gunner in a helicopter. He has also submitted photocopies of four letters which he asserts he wrote while in Vietnam, which have been translated from Spanish into English. These letters were partially illegible, but show that the veteran stated that he was thinking about changing his job to a door gunner because his work in supply was getting difficult. He also indicated that he hit his head while running during a mortar alert. The veteran's service records include his personnel record (DA Form 20) which indicates that he served with the 61st AHC (Assault Helicopter Company) from September 6, 1971 to March 14, 1972. The DA Form 20 indicates that the veteran served in Vietnam from August 31, 1971 to March 18, 1972, and that his principal duty was supply clerk during his entire tour in Vietnam. His discharge (DD Form 214) indicates that he was awarded the Republic of Vietnam Campaign Medal with "60" device, and the Vietnam Service Medal, and that his military specialty (MOS) was supply clerk. The Board has determined that the evidence does not warrant a preliminary finding that the veteran participated in combat with the enemy. Although the veteran's statements, and the photocopies of letters he submitted, regarding his claim are credible, this evidence must be weighed together with the other evidence of record. See Cohen v. Brown, 10 Vet. App. 128, 146 (1997). In this case, the Board has noted the veteran's statements and letters, but finds that the preponderance of the evidence does not show that the veteran participated in combat. The veteran's DD 214 does not show that he received any commendations or awards which appear to be awarded primarily or exclusively for circumstances relating to combat, such as the Combat Infantryman Badge, Purple Heart, or similar citation. See VAOPGCPREC 12-99, 65 Fed.Reg. 6256-6258 (2000). There is no indication that the veteran was awarded an Air Medal, or any other award involving aviation, which would support his claim that he was a door gunner. The claims file contains a letter from the United States Armed Services Center for Research of Unit Records (USASCRUR), dated in June 1998, in which the USASCRUR specifically stated that they could not verify the veteran's assertion that he was a door gunner. In addition, service records indicate that while in Vietnam the veteran's principal duty was supply clerk, which is also his MOS. While the veteran may very well have served in a combat area (as evidenced by his service records) the Court has stated that serving in a combat zone is not the same as serving in combat. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also VAOPGCPREC 12-99. In this regard, although the veteran's DD Form 214 lists participation in the "15th campaign undesignated" the nature and extent of the veteran's participation in this operation is not described, and the Board finds that this notation is of less weight than the evidence in the veteran's service records, which contain specific information as to his principal duty as a supply clerk for an assault helicopter company. See VAOPGCPREC 12- 99. In addition, a review of unit histories for 61st AHC, and a letter from the USASCRUR (both discussed infra) do not provide a basis to find that the veteran (or 61st AHC supply clerks in general) participated in combat. Finally, a unit history shows that some members of the 61st AHC received awards for bravery, that four members received Purple Hearts between January 1971 and February 1972, and that one member of that unit was killed in action during the veteran's tour in Vietnam. However, the Board finds that this is not sufficient evidence to show that the veteran participated in combat. In particular, the unit history shows the 61st AHC's mission primarily involved the insertion of soldiers into combat, and ferrying supplies to infantry units. The unit history does not provide a basis to find that the unit's supply clerks commonly served as helicopter crew members, or that any members of the 61st AHC other than helicopter crew members normally came into contact with the enemy. Based on the foregoing, the Board finds that the veteran did not participate in combat. See Cohen v. Brown, 10 Vet. App. 128, 145 (1997). In reaching this determination, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claim of participation in combat, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); VAOPGCPREC 12-99. Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See Cohen, 10 Vet. App. at 147. In Doran v. Brown, 6 Vet. App. 283, 290-91 (1994), the Court stated that "the absence of corroboration in the service records, when there is nothing in the available records that is inconsistent with other evidence, does not relieve the BVA of its obligations to assess the credibility and probative value of the other evidence." West, Zarycki and Doran cited a provision of the VA ADJUDICATION PROCEDURE MANUAL M21-1 ("MANUAL 21-1") which has now been revised as to "Evidence of Stressors in Service" to read, in part, ... "[C]orroborating evidence of a stressor is not restricted to service records, but may be obtained from other sources." Since the MANUAL 21-1 October 1995 revision, the Court has held that the requirement in 38 C.F.R. § 3.304(f) for "credible supporting evidence" means that the "appellant's testimony, by itself, cannot establish the occurrence of a noncombat stressor." See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); see also Cohen, 10 Vet. App. at 147. In this case, a review of the veteran's written statement, received in August 1993, and the hearing transcript from his October 1999 hearing, shows that he alleges that he has PTSD as the result of four stressors: 1) while serving as a door gunner in a helicopter during a combat assault in about November 1970, he saw a good friend killed when that friend's helicopter was shot down; 2) seeing a Vietnamese national, who had worked at his base, after he was killed by guard dogs during a sabotage attempt involving a fuel dump; 3) being shelled on Christmas day; and 4) exposure to snipers while driving a truck, and exposure to enemy fire while serving as a door gunner in a helicopter. As noted at the outset, the claims file includes medical diagnoses of PTSD. However, in order for a grant of service connection for PTSD to be warranted, there must be credible evidence linking the PTSD to a verified inservice stressor. Despite the efforts of the RO, there has been no official verification of the claimed stressors. Initially, the Board notes that its discussion of participation in combat, supra, is largely applicable here. Briefly stated, the evidence does not support the veteran's claim that he served as a door gunner, or that he otherwise participated in combat. In addition, the USASCRUR's June 1998 letter shows that it was unable to verify any of the claimed stressors. Of particular note, the USASCRUR specifically stated that they could not verify the veteran's stressor involving the sabotage of a fuel dump. Accordingly, the Board finds that none of the claimed stressors have been verified. The Board parenthetically notes that the Court has held that it is not an impossible or onerous task for appellants who claim entitlement to service connection for PTSD to supply the names, dates and places of events claimed to support a PTSD stressor. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, he has not provided names, dates and/or places with specificity, or other useful identifying information, which would allow for verification of his claimed stressors. In a letter from the USASCRUR, dated in September 1993, the USASCRUR stated that it required much more specific information regarding the claimed stressors, and although the RO subsequently requested additional information from the veteran in March 1996, there is no record of a response. Furthermore, although a letter from the USASCRUR, dated in January 1998, shows that the veteran was informed that he may request Official Military Personnel File (OMPF), it does not appear that he has done so. Although the record contains a diagnoses of PTSD linked to his service, there is no official verification of the claimed stressors. As such, the diagnoses contain unsupported conclusions which are insufficient to warrant a grant of service connection for PTSD. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996) (something more than medical nexus evidence is required to fulfill the requirement for "credible supporting evidence"); see also Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Based on the foregoing, the veteran's claim for service connection for PTSD fails on the basis that there is no verified stressor; that all elements required for such a showing have not been met; and that the preponderance of the evidence is against the veteran's claim for entitlement to service connection for PTSD. Accordingly, service connection for PTSD must be denied. As a final matter, the Board acknowledges that during his October 1999 hearing, the veteran appeared to assert that he is receiving PTSD treatment from a Veterans' Center ("Vet Center") in Jersey City. Although the claims file contains records from a VA medical center (VAMC) in Martinsburg, West Virginia, and VA hospital records from Jersey City, and Lyons, New Jersey, no "Vet Center" records are currently associated with the claims file. However, even assuming the veteran was treated at a Vet Center (as opposed to a VAMC in New Jersey), the Board has determined that this claim may be fully and fairly adjudicated without obtaining these records. The veteran's claim has been denied because there is a lack of verification of the claimed stressors. There is no indication that any Vet Center records, coming approximately 26 years after the veteran's separation from service, contain information relevant to this aspect of his claim. Furthermore, the veteran has not identified these records as pertinent to this matter. Therefore, the Board has determined that securing these records would not add pertinent evidence, and the Board's duty to assist is not triggered because such a duty is "limited to (securing) specifically identified documents that, by their description would be facially relevant and material to the claim." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992); cf. Dunn v. West, 11 Vet. App. 462 (1998) (Board must obtain Veterans' Center records which are relevant to a basis for its denial). In reaching this decision, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is denied. STEVEN L. COHN Member, Board of Veterans' Appeals