Citation Nr: 0006263 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 94-09 814 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran had active military service from June 1965 to October 1966. He has been represented throughout his appeal by AMVETS. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of September 1993, by the Hartford Regional Office (RO), which denied the veteran's claim of entitlement to service connection for PTSD. The notice of disagreement with this determination was received in November 1993. The statement of the case was issued in December 1993. The substantive appeal was received in February 1994. The veteran appeared and offered testimony at a hearing before a hearing officer at the RO in May 1994; a transcript of the hearing is of record. A supplemental statement of the case was issued in May 1995. A VA hospital summary was received in July 1995. By a rating action in September 1995, the RO confirmed its previous denial of the veteran's claim for PTSD, and a supplemental statement of the case (SSOC) was issued in September 1995. The appeal was received at the Board in November 1995. In April 1996, the Board remanded the case to the RO for further development. VA hospital summaries were received in June 1996. A statement from the veteran was received in September 1996. An SSOC was issued in December 1997. The appeal was received back at the Board in March 1998. In June 1998, the Board again remanded the case to the RO for further development. A statement from the veteran was received in April 1999, and an SSOC was issued in April 1999. Following the receipt of VA progress notes, an SSOC was issued in August 1999. The appeal was received back at the Board in October 1999. By rating action in April 1999, the RO denied service connection for an acquired psychiatric disorder (other than PTSD). The veteran was notified of that determination and of his appellate rights by letter dated in May 1999. However, the veteran has not yet initiated an appeal with respect to the denial of service connection for an acquired psychiatric disorder (other than PTSD). Thus, that issue is not in appellate status at this time, and will not be addressed by the Board. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200 (1999). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this claim has been obtained by the RO, to the extent feasible. 2. The veteran is not shown to have been involved in combat with the enemy in connection with his military service during the Vietnam era. 3. The veteran does not have a current, clear diagnosis of PTSD related to any inservice stressor, and there is no credible supporting evidence that his claimed inservice stressors actually occurred. CONCLUSION OF LAW PTSD was not incurred in or aggravated by the veteran's active military service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background The record reflects that the veteran served on active duty in the United States Navy from June 1965 to October 1966; his military occupational specialty was boatswain. The veteran's report of separation from service, DD Form 214, shows his total active service as 10 months and 25 days, with foreign and/or sea service indicated as five months and five days, and shows 152 days of lost time. The DD Form 214 does not reflect service in a combat zone, and does not show that he received any awards or decorations indicative of involvement in combat. He was discharged in the grade of E-1, Seaman Recruit. The service medical records, including the enlistment examination conducted in June 1965 as well as the separation examination in October 1966, were negative for any complaints, findings, or diagnosis of a psychiatric disorder. Medical evidence of record from the 1970's, including VA as well as private treatment reports, reflects that the veteran received clinical attention and treatment for a personality disorder and for polysubstance abuse. Among these records are lay statements from the veteran's parents and friends attesting to the fact that there was a change in the veteran's personality during and following his period of active military service. A discharge summary from theVA Medical Center (VAMC) in West Haven, dated in July 1991, reflects that the veteran was admitted to that facility for polysubstance abuse, and was diagnosed with a personality disorder. Stressors at the time of his admission were noted to be tension with his current wife, unresolved grief over the death of a prematurely born child, and a lack of stable housing and employment. This was noted to be his seventh hospitalization related to substance abuse and uncontrollably violent behavior. Information reported for clinical purposes indicated that the veteran had begun using heroin shortly after his discharge from the Navy, and had then become involved with LSD, benzodiazepines, barbiturates, and cocaine. He stated that cocaine was currently his drug of choice, and his preferred route was freebasing. There was also a significant history of alcoholism, with an extensive history of alcoholism and polysubstance abuse in his father and siblings. A significant physical problem noted was low back pain and neurological symptoms in the lower extremities and perineum, post lumbar laminectomy for spinal canal disease. VA outpatient treatment reports dated from June to August 1991 indicate that the veteran received clinical attention and treatment for several disabilities, including a nervous disorder. A treatment report dated in August 1991 noted the veteran to be a PTSD patient, with no indication of the basis for the diagnosis. Private treatment reports dated from August 1991 to January 1992 reflect ongoing clinical evaluation for a back disorder; these records do not reflect any complaints or findings of a psychiatric disorder. A rating decision dated in June 1992 granted the veteran's claim for a permanent and total rating for purposes of non- service-connected VA disability pension. The disabilities which were the predicate for that award were listed as: status post lumbar laminectomy, rated as 60 percent disabling; postoperative bunionectomy, right, and plantar calluses, left, rated at zero percent; narcissistic personality, rated at zero percent; and polysubstance abuse, not rated but noted to be due to willful misconduct. Of record is a medical statement from a resident psychiatrist at the VA Mental Hygiene Clinic at the West Haven VAMC, dated in December 1992, indicating that he had been meeting with the veteran once a week for individual psychotherapy since July 1992. The physician noted that the veteran had been followed by another doctor from October 1991 to July 1992. The psychiatrist indicated that the veteran's diagnoses included borderline personality disorder, PTSD (provisional), and polysubstance abuse. Received in March 1993 was a statement from the veteran, wherein he indicated that he was stationed aboard the USS Fulton and he encountered certain situations that caused him to be in constant fear for his life. The veteran explained that, when they went out to sea, they went through a hurricane. The veteran also reported that the ship collided with a submarine while on maneuvers. He further stated that they were hit by a torpedo that destroyed one of their propellers, which they had to repair midsea. The veteran indicated that he was subsequently transferred to USS Skate, a submarine; he found himself in close quarters, and began to "flip out." He related that his wife called him and he went home to help out his family; as a result, he was considered to have gone AWOL (absent without official leave). The veteran indicated that he was put in the 3rd Naval District Brig in Brooklyn, New York, where he was repeatedly beaten by a particular Marine Corporal who was a guard, and others; he stated that he also witnessed the killing of another soldier by fellow marines. The veteran reported that he continued to see the death over and over, and that he has continued to experience severe difficulties in coping with authority figures as a result of his experiences. The veteran was afforded a VA compensation examination in March 1993, at which time it was indicated that he had been hospitalized several times related to his substance abuse and "uncontrolled violent behavior." The veteran complained of constant fear of being attacked or being beaten up as he was while he was in the brig in service; he also insisted that he was a witness to a murder that had taken place in the brig. The veteran indicated that the killers had tried to kill him. It was noted that the veteran had extensive history of arrests and polysubstance abuse; he estimated approximately 15 arrests and imprisonments. The veteran reported difficulty sleeping, and being in constant fear of policemen and others. It was also noted that the veteran attended the PTSD clinic once a week, and was taking Xanax twice a day; he stated that alcohol made him violent. Following a mental status examination, the examiner reported the diagnoses of: polysubstance use disorder, cocaine, heroin intravenously in the past, and marijuana; and personality disorder with antisocial and paranoid features. Received in April 1993 were VA outpatient treatment reports dated from August 1991 to April 1991, showing ongoing clinical evaluation for a nervous disorder, variously diagnosed. A treatment report dated in September 1991 reflects the diagnoses of generalized anxiety disorder, personality disorder, and polysubstance dependence. Subsequently, the veteran was seen at the anxiety clinic in October 1991. During a clinic visit in June 1992, the examiner noted that the veteran's frequent state of hyperarousal was more related to his personality disorder and inability to tolerate frustration. Received in June 1993 was the report of a consultation by a Brig Psychiatrist, conducted in August 1966, at which time it was noted that the veteran had been in military service for 14 months and had gone on UA (unauthorized absence) for 32 days, for his second offense. It was indicated that the veteran had recently married and had one child with another on the way; it was reported that veteran's wife lived with his parents and that he went on UA in order to help support his new family. It was noted that the veteran was involved in frequent fights and had been arrested once. On examination, he was described as a somewhat isolated young man who was frequently depressed; he also suffered from tension headaches. He was otherwise logical and coherent, and he knew the difference between right and wrong; it was determined that he was able to adhere to the right at the time of his offense. The diagnosis was of a severe, passive- aggressive, personality disorder. It was recommended that the veteran be administratively separated from service. At his personal hearing in May 1994, the veteran reiterated several difficulties that he said he had experienced while aboard the USS Fulton, including going through a hurricane and being hit by a torpedo. The veteran contended that his nervous disorder really surfaced while at the brig in Brooklyn, where he was subjected to physical and mental abuse by a particular Lance Corporal. The veteran also reported that one individual who was complaining about a haircut was beaten and had his head smashed until he died. The veteran maintained that he, himself, was beaten so badly that he was unable to have any visits; he stated that, on one particular occasion when his parents and wife came to visit, they were not allowed to see him. Medical evidence of record, dated from May 1995 through February 1997, reflects ongoing clinical attention and treatment for several disabilities, including a psychiatric disorder diagnosed as PTSD, and a personality disorder. In a Statement in Support of Claim, VA Form 21-4138, provided to the RO through his representative in September 1996, the veteran said he had suffered many traumatic experiences during his military duty. He described being beaten and sexually assaulted while in the brig in Brooklyn, stating that the worst abuse came from the Lance Corporal he had previously named. He described being ordered to secure lifeboats on the deck of the USS Fulton during a hurricane while coming out of St. Thomas in September 1965. He also described going to a bar in St. Thomas with four shipmates, and becoming involved in a fight in which he cut an attacker's throat and one of his shipmates was killed. It was noted that the foregoing statement was prepared with the assistance of a VA physician, the Director of the Substance Abuse PTSD Program at the West Haven VAMC. That same month, September 1996, the RO referred the veteran's stressor statement to both the Commandant, U.S. Marine Corps, and the U.S. Army Joint Services Environmental Support Group (ESG) (subsequently redesignated as the U.S. Armed Services Center for Research of Unit Records (USASCRUR)), and requested assistance in verifying the claimed stressors. Enclosed with the requests was service personnel information pertaining to the veteran, including reports of his duty transfers; enlistment, training, and discharge data; his DD Form 214; and administrative records documenting his unauthorized absences from duty, return to military control, and non-judicial punishment for his multiple UA's. A response from the Headquarters, U.S. Marine Corps, was received by the RO in October 1996. The letter indicated that the incidents in the veteran's claim could not be verified by that office. It was recommended that the Naval Investigative Service be contacted for information as to the incidents described by the veteran. In October 1997, the RO received research information and documentation from the ESG, in regard to the veteran's claimed inservice stressors. The ESG indicated that the deck log extract from the USS Fulton confirmed that a fight involving members assigned to the Fulton had occurred during the veteran's tour of duty, and that the members were on liberty in St. Thomas, US Virgin Islands, at the time of the incident. However, the report indicated that the veteran's name was not mentioned, and there was no record that an individual assigned to the Fulton, or anyone else, was killed during the fight. In a subsequent letter dated in October 1998, after the June 1998 Remand by the Board, the Director of USASCRUR reported that the Naval Criminal Investigative Service did not have any information on a U.S. Marine Corps Lance Corporal under the name provided by the veteran as having been involved in an incident relating to the veteran. Of record is a letter from the Marine Corps Historical Center, dated in December 1998, indicating that they have no personnel records pertaining to the veteran or the Marine Lance Corporal named by him, who might have been involved in an incident relating to the veteran in July 1966. In February 1999, the RO received research information from the head of the Records Correspondence Section, Personnel Management Support Branch, Headquarters, U.S. Marine Corps, in regard to the veteran's claimed stressors. The letter indicated that a search of the unit diaries of Marine Branches, U.S. Naval Base, Brooklyn, NY, showed that an individual, having the name provided by the veteran as his assailant, was assigned there as a guard at the time in question. However, there were no entries showing that the individual was charged with or convicted of brutality; the records showed that the individual was promoted to Corporal in October 1966. The veteran reiterated his description of the stressors which he asserted had occurred at the Brooklyn Navy Yard brig, in a statement in support of claim (VA Form 21-4138) received in April 1999. He augmented his account, by stating that the guard who tortured him told him that he and his friends had gone to the veteran's home in Connecticut, and there raped the veteran's wife and children while the veteran was in solitary confinement. He also stated that he had seen other prisoners die from suicide and murder. Received in August 1999 were VA progress notes dated from May 1996 to July 1999, which show that the veteran continued to receive ongoing clinical attention for a number of disorders, including a psychiatric disorder diagnosed as PTSD. During a clinical visit in August 1996, the veteran reported increased PTSD symptoms related to his being traumatized while in the brig in 1966. A July 1997 report indicated that the veteran had a history of PTSD and other medical problems, including chronic back pain, lumbar disc surgery, peptic ulcer disease, a right wrist ganglion, and genitourinary symptoms. An entry later that month noted that the veteran was having difficulty overusing Xanax and morphine, and there was a long-term plan to wean him from those "addictive meds." On one occasion in June 1998, he presented with extreme irritation and anger, due largely to his lack of success in his claim for benefits for PTSD. In June 1999, it was reported that he was having more PTSD symptoms after Memorial Day. Other stressors causing him to feel "overwhelmed" included the death of his father two months previously, his stepmother's being placed in a nursing home, a recent injury to his throat in a fall, and the death of a niece in an accident. It was noted at that time that he had been diagnosed with PTSD since 1991, although he reported symptoms since he "came back from Vietnam." A July 1999 note identified a sleep disorder and panic attacks as his most problematic symptoms. II. Legal analysis 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. If a disability is not shown to be chronic during service, service connection may nevertheless be granted when there is continuity of symptomatology post- service. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). With regard to the claim of service connection for PTSD, in order for a claim for PTSD to be well grounded, the veteran must submit medical evidence of a current disability, lay evidence (presumed to be credible at this stage of the claim) of an in-service stressor, and medical evidence of a nexus between service and the current PTSD disability. Cohen v. Brown, 10 Vet.App. 128 (1997); 38 C.F.R. § 3.304(f). If it is determined that a veteran's PTSD claim is well grounded, that does not necessarily mean the claim will be granted. As the United States Court of Appeals for Veterans Claims has emphasized, even though . . . the appellant has presented a well-grounded claim for service connection for PTSD, "eligibility for a PTSD service-connection award requires" more; specifically, "(1) [a] current, clear medical diagnosis of PTSD . . . ; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor." Gaines v. West, 11 Vet.App. 353, 357 (1998), citing Cohen, supra, and Suozzi v. Brown, 10 Vet.App. 307 (1997) (emphasis in original). If the claimed in-service stressor or stressors are related to combat against enemy forces, service department evidence that the veteran engaged in combat or that the veteran was awarded a combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f). Where, however, VA determines that the claimant did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the claimant's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen, supra; Moreau v. Brown, 9 Vet.App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet.App. 70, 76 (1994). Moreover, service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet.App. 283 (1994). Regarding the elements required to well ground a claim for PTSD, the Board notes that the record does contain several mentions of the diagnosis of PTSD, the veteran has alleged several inservice stressor events, and several entries in the medical record appear to indicate that treating physicians may have ascribed PTSD to the veteran's accounts of stressors in service. Thus, accepting the principle that there is a "rather low" threshold for well grounding a claim, we will conclude that this claim is well grounded. See, e.g., Fossie v. West, 12 Vet.App. 1, 6 (1999). However, moving to an analysis of the case on the merits, we must evaluate the evidence more critically. See Gaines, et al., supra. First, as to the requirement of a clear medical diagnosis of PTSD, the record is equivocal. The veteran has been diagnosed with a personality disorder and with substance abuse involving a number of drugs. Although a number of medical records list the diagnosis of PTSD, the Board has seen none in which a medical professional has identified a specific relationship, if any, between inservice stressor(s) and a present mental disorder. In fact, the medical record cites more non-military than military stressors, e.g., marital difficulty, deaths and illness in his family, and financial and housing problems, as well as a serious back disorder for which the veteran has undergone surgery and received ongoing treatment. We are required to presume that a mental health professional who enters a diagnosis of PTSD has done so only after consideration of applicable diagnostic criteria, see Cohen, supra, at 140. However, the plethora of postservice stressors in the veteran's life, and the lack of specific linkage, by any mental health professional, of any inservice stressors to PTSD, compels us to conclude that there is no "clear diagnosis" of service-incurred PTSD in this case. Nevertheless, because the diagnosis of PTSD does appear a number of times in the record, we will proceed to address the second criterion, the inservice stressor issue. Despite a few references to Vietnam in the medical records, it is clear that the veteran, although he served during the Vietnam era, did not serve anywhere near the Republic of Vietnam. He has not contended otherwise in this appeal, and the Board notes that the veteran did not receive any awards or decorations for valor, combat experience or combat injuries; nor is there any other evidence of record indicating that he served in combat. He reported being aboard the USS Fulton when it was hit by a torpedo. However, that alleged incident appears to have been accidental damage, not a result of enemy action, and, in any event, there is no evidence corroborating that allegation. The Board finds that the preponderance of the evidence is against any implicit claim of combat service. As noted above, where the veteran did not serve in combat or the claimed stressor or stressors are not related to combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor(s). Instead, the record must contain evidence which corroborates the veteran's assertions as to the occurrence of any claimed stressor which is the basis for a diagnosis of PTSD. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d),(f); VA Adjudication Manual M21-1, Part VI, 7.46(e)-(f); West v. Brown, 7 Vet.App. 70 (1994). Thus, it is necessary to address the matter of whether there is sufficient corroboration of the claimed stressors to satisfy the stressor requirement. The Board would emphasize that we are not bound to accept either the veteran's uncorroborated account of his stressful experiences or the opinion of VA or private health professionals who, relying on the history related by the veteran, have diagnosed him as having PTSD. See Swann v. Brown, 5 Vet.App. 229, 233 (1993). Although the current evidentiary record shows that PTSD has been diagnosed (as have other psychiatric disorders, including generalized anxiety disorder), the question of whether a specific event reported by the veteran as a stressor is valid is an issue of fact for the Board to decide, involving as it does factors which are historical. Although mental health professionals may have accepted the veteran's account of his experiences during service, VA is not required to do the same, charged as it is with the duty to assess the credibility and weight to be given to the evidence. Wood v. Derwinski, 1 Vet.App. 190 (1991). In this case, except for the veteran's uncorroborated statements, there is no credible evidence to verify that the veteran experienced any stressors in service. VA has made several unsuccessful attempts to develop credible supporting evidence to establish the occurrence of the alleged stressors. Information provided by the ESG and by its successor organization, USASCRUR, did not corroborate or reveal any specific stressors. Similarly, several elements of the US Marine Corps, and the Naval Criminal Investigative Service, searched their records in vain for evidence to corroborate the veteran's contentions. The RO did secure information from the ship's logs of the USS Fulton. However, the logs from that ship do not confirm either the hurricane, the collision with a submarine, or the Fulton's being struck by a torpedo and sustaining propeller damage, as reported by the veteran. Moreover, there is no verification in the record that the veteran was beaten by a Lance Corporal or other individual while in the brig as punishment for his several UA's, or that the veteran witnessed the death of a fellow marine, either in a bar in St. Thomas or in the brig in Brooklyn. In the absence of credible evidence corroborating the veteran's alleged stressors, the Board finds that the preponderance of the evidence is against the claimed inservice stressors. To summarize, the Board finds that the evidence does not establish a clear diagnosis of PTSD related to any inservice stressor, and, even if that diagnosis were shown, the evidence does not serve to establish that the veteran experienced an inservice stressor upon which a clear diagnosis of PTSD can be based. There is no credible evidence supporting the veteran's assertions; thus, the second requisite element for eligibility for service connection for PTSD, as discussed in Cohen v. Brown, and as required by 38 C.F.R. § 3.304(f), has not been met. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for PTSD. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, as we have concluded that the preponderance of the evidence is against the veteran's claim, this doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. at 55. ORDER Entitlement to service connection for PTSD is denied. ANDREW J. MULLEN Member, Board of Veterans' Appeals