Citation Nr: 0007921 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-09 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from September 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The veteran is currently diagnosed as having PTSD. 3. The veteran did not engage in combat with the enemy. 4. There is no credible evidence supporting the veteran's assertions that the alleged in-service stressors actually occurred. CONCLUSION OF LAW The veteran did not incur PTSD during or as a result of active duty service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). See Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In particular, service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with VA regulations; 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. 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 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. 38 C.F.R. § 3.304(f) (as amended by 64 Fed. Reg. 32,807-32808 (1999)) (effective March 7, 1997) (implementing the decision in Cohen v. Brown, 10 Vet. App. 128 (1997)). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans). A "clear" diagnosis of PTSD is, at minimum, "an unequivocal one." Cohen, 10 Vet. App. at 139. The sufficiency of a stressor to cause PTSD is a clinical determination for the examining mental health professional. Cohen, 10 Vet. App. at 153 (Nebeker, Chief Judge, concurring by way of synopsis). See 61 Fed. Reg. 52695-52702 (1996) (amending 38 C.F.R. §§ 4.125 & 4.126 to adopt the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV), which effected a shift in diagnostic criteria from an objective standard to a subjective standard). If there is an unequivocal diagnosis of PTSD by mental heath professionals, it is presumed that the diagnosis was made in accordance with the applicable DSM criteria as to both adequacy of symptomatology and sufficiency of the stressor (or stressors). Id. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). The phrase "engaged in combat with the enemy" requires that a veteran has participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Determining whether a veteran engaged in combat with the enemy requires evaluation of all pertinent evidence in each particular case. VAOPGCPREC 12-99. If VA determines that the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then the veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, providing that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." 38 C.F.R. § 3.304(f); see 38 U.S.C.A. § 1154(b); 38 C.F.R. 3.304(d); Zarycki, 6 Vet. App. at 98. If, however, VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence which corroborates the veteran's testimony or statements. Cohen, 10 Vet. App. at 147; Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see Zarycki, 6 Vet. App. at 98. The final requirement of 38 C.F.R. § 3.304(f) is medical evidence of a nexus between the claimed in-service stressor and the current disability. However, such after-the-fact medical nexus evidence cannot also be the sole evidence of the occurrence of the claimed stressor. Moreau, 9 Vet. App. at 396. In addition, medical nexus evidence may not be substituted by application of the provisions of § 1154(b). Clyburn v. West, 12 Vet. App. 296, 303 (1999); Cohen, 10 Vet. App. at 138. In this case, the evidence shows that the veteran is currently diagnosed as having PTSD as a result of alleged experiences in service. Thus, the Board must determine whether there is credible supporting evidence that the veteran's alleged in-service stressors actually occurred. The initial issue for consideration is whether the veteran engaged in combat with the enemy. On this point, the Board notes that there is no evidence that immediately supports an affirmative finding. The veteran's separation document indicates that he served with the 1885th Engineering Battalion with a military occupational specialty of automotive mechanic. His Separation Qualification Record further specifies that he was overseas for 20 months in Guam and Okinawa. He served 12 months as a heavy truck driver and four months as an automotive mechanic. A DD215 shows that, in addition to a Good Conduct Medal, the veteran was entitled to the Asiatic Pacific Medal with two bronze service stars, the World War II Victory Medal, and the Army of Occupation Medal with Japan clasp. Responses to requests to the National Personnel Records Center (NPRC) for service medical records and personnel file indicated that the veteran's records were probably lost in the 1973 fire. In an August 1997 statement, the veteran denied receiving any psychiatric treatment during active duty. He has not claimed that he was wounded in service. The veteran asserts that his medals are evidence of combat. However, the photocopy of Army regulations describing the basis for the award of each medal, which the veteran provided to the RO, does not support this assertion. The Army of Occupation Medal requires only service during a specified time at the prescribed location, such as Japan, Germany, etc. The World War II Victory Medal requires only service during the World War II era. The Asiatic-Pacific Campaign Medal may be awarded for service in the named theater or for combat. However, the regulations specify that combat service is denoted by a combat decoration or certificate that shows that the veteran in question actually participated in combat. There is no indication from the service documents that the veteran was awarded or is entitled to a combat decoration or certificate in association with this medal. In his March 1997 statement, the veteran related that he participated in firefights when attacked and shot and killed an enemy soldier. During the June 1998 and November 1999 hearings, he offered testimony on his company being attacked and sustaining casualties. The Board is not required to accept the veteran's assertions that he engaged in combat with the enemy as determinative of the issue, but instead must consider them along with all the relevant evidence of record. Gaines, 11 Vet. App. at 359; VAOPGCPREC 12-99. Considering the whole of the pertinent evidence, the Board finds that the preponderance of the evidence is against finding that the veteran engaged in combat with the enemy for purposes of presuming the occurrence of an in-service stressor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.304(f). See VAOPGCPREC 12-99 (the benefit-of-the-doubt rule applies to determinations of combat status). Having found, for purposes of this claim, that the veteran did not engage in combat with the enemy, the Board now must determine whether there is credible evidence that supports the veteran's assertions that the alleged in-service stressors actually occurred. In the March 1997 statement, the veteran described participating in firefights and seeing many dead and wounded, including Americans, Japanese, and civilian. During his later testimony, he described being attacked while stationed on Guam and Okinawa. During the June 1998 hearing, the veteran indicated that he saw someone killed, but it was not someone he knew. The veteran did not provide any specific information as to the location and date of any claimed stressor or the name of any person who was killed or wounded. The veteran's representative stated that it had been more than 50 years and that there were a lot of things the veteran could not remember. The Board observes that, when a claim is well grounded, VA has a duty to assist the veteran in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a); Epps, 126 F.3d at 1469. In the context of PTSD claims, the duty to assist includes attempting to verify the occurrence of the alleged in-service stressors with the assistance of the U.S. Armed Services Center for Research of Unit Records (USASCRUR) (formerly known as the U.S. Army and Joint Services Environmental Support Group). However, as the hearing officer explained to the veteran and his representative during the June 1998 hearing, verification of claimed stressors requires fairly specific information (names, dates, locations, etc.) to facilitate the search of available records. Without such information, the stressors described by the veteran are, as a practical matter, unverifiable. Finally, the Board acknowledges that the October 1997 statement from William R. Reid, M.D., appears to link the veteran's diagnosis of PTSD to his experiences in World War II as related by the veteran. To the extent this statement may be said to support the occurrence of the alleged stressors, the Board emphasizes that after-the-fact medical nexus evidence cannot be the sole supporting evidence of the occurrence of the claimed stressor. Moreau, 9 Vet. App. at 396. In summary, the Board finds that the preponderance of the evidence is against entitlement to service connection for PTSD. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f). ORDER Service connection for PTSD is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals