BVA9507469 DOCKET NO. 91-14 576 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE 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 William L. Pine, Esq. INTRODUCTION The appellant served on active duty from December 1948 to December 1951. This appeal is from the March 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for PTSD. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he has PTSD that was precipitated by psychic trauma sustained in combat in Korea. He avers that he escaped an imminent threat of death from an enemy troop who was in arm's-length proximity, that he saw his cousin's body among the many American soldiers killed in action that he saw, and that he frequently came under enemy fire while on temporary duty assignments in support of combatant units. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against service connection for PTSD. FINDINGS OF FACT 1. The appellant is not a veteran of combat with the enemy. 2. The appellant did not sustain PTSD-precipitating psychic trauma in service. CONCLUSION OF LAW PTSD was not incurred in or aggravated in service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 1991); 38 C.F.R. § 3.304(d), (f) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has filed a well grounded claim, and the record is sufficiently developed for appeal. 38 U.S.C.A. § 5107(a) (West 1991). The RO has made repeated efforts to confirm the presence of the appellant's unit in Korea and to obtain unit histories that he avers may corroborate his participation in combat. Upon inquiry by the RO, the National Archives and Records Administration (NARA) informed VA that it could furnish certain material retrieved from archives upon receipt of payment of a reproduction fee of $151.25. Whereas VA is not required by law to pay such costs of assisting the appellant to develop evidence in a claim, O.G.C. Precedent Op. 7-95, VA informed the appellant that it could not pay for the records the appellant sought assistance to obtain, informed the appellant how to obtain the records at his expense, and of his ultimate responsibility to obtain evidence, 38 C.F.R. § 3.159(c) (1994), the duty to assist the appellant, 38 C.F.R. § 5107(a) (West 1991), is discharged. The appellant as argued for VA to obtain an independent medical opinion to reconcile or clarify the multiple psychiatric diagnoses in the record. 38 C.F.R. § 3.328 (1994). As explained below, the material question in this case is verification of alleged stressors, not the diagnosis of PTSD. An independent medical opinion is not apropos that inquiry and need not be obtained. I. BACKGROUND The appellant's Army discharge record, DD Form 214, reveals that the appellant was a military policeman in service whose most significant duty assignment was with the 57th MP Co., Korea, with approximately 13 months of foreign and/or sea service, and he received the Korean Service Medal with three bronze stars. Service medical records are negative for psychiatric complaints, findings or diagnosis. Post-service VA and private medical records from October 1961 to September 1974 pertain to musculoskeletal, gastrointestinal, cardiovascular and pulmonary disorders. All medical records prior to a VA examination report of July 1988 are negative for psychiatric content. On VA examination in July 1988, the appellant reported recent increased difficulty sleeping at night and increasingly having difficulties processing the memories of his experiences in ground combat in the Korean conflict. He reported that he landed at Inchon with combat in Chosun. The diagnoses included "undiagnosed Neuropsychiatric Disorder manifested by sleep disorder and increasingly disturbing memories of his ground combat experiences in the Korean Conflict." In September 1988, the appellant filed an informal claim service connection for PTSD. He reported that he made an amphibious landing in Korea in October 1950 with the 57th Military Police (MP) Company, 8th Army, and was in combat under enemy fire daily due to heavy guerrilla activity while his outfit was attached to various infantry outfits. He reported that his first cousin, Hoyt Edwards was killed approximately 100 yards from him as a member of a 1st Cavalry unit along side of which the appellant's unit was fighting. He stated he had had trouble sleeping ever since Korea, with frequent nightmares. In November 1988, in response to an inquiry from the RO, the National Personnel Records Center (NPRC) informed the RO that no personnel records had been located for the appellant, whose records may have been destroyed in a fire in July 1973 if they had been there on that date. In a statement of November 1988, the appellant reported that his unit served just behind infantry front line units to direct traffic to and from the front. He stated his biggest problem was "staying sometimes two or three days with one other soldier to guard bridges, ammo dumps, etc. We were exposed to guerrilla small-arms fire on lots of occasions." He stated he could not remember the dates and on one occasion was with the 5th cavalry and "caught the last tank out." He reported his only treatment for his condition had been at the Mountain Home, Tennessee, VA Medical Center (VAMC). In March 1990 the appellant submitted a pre-printed form or questionnaire designed specifically to support a claim for VA disability compensation for PTSD resulting from Vietnam service; it was modified to apply to Korean service. In response to questions on the form, the appellant stated his unit as 57th MP Company, Korea, Injon to south at Monyong and north to the 38th parallel and to other locations, including "Hawachon reservoir," which was blown out and nearly got washed away." He stated his duty was guarding isolated roads, bridges and ammunition dumps. He reported sustaining a left hernia while blowing up a kitchen supply truck to keep it from the enemy. Under the item "military experiences I believe were most terrifying, life-threatening, or stressful to me," he endorsed by a mark the following selections from a list: armed combat or enemy action; grave registration duty; treating or dealing with casualties (including enemy); shelled (with 11th engineers); other life-threatening action, "Chinese broke through and our lines were left open by 6th ROC South Koreans." He subscribed to the entry, "Since the event described above, I have reexperienced the event in nightmares, flashbacks, and just over and over again in my mind," with the following events occurring over the past 31 years: Nightmares four times each month, thoughts of the event 30 times each month, and flashbacks four times each month. He subscribed to the entry "I felt numb after the event or had difficulties "feeling." He stated he was nervous, tense, felt numb for past 31 years and private doctors all the time were treating me for heart conditions. In response to an entry listing "problems that were not present before or had become worse since going to Southeast Asia, he subscribed by check mark to each of a list of 10 psychiatric symptoms, including "self medication with alcohol to block out . . . memories," and "other problems, threatened suicide." He stated he had received psychiatric or psychological treatment for his nervous condition or treatment for alcohol or drug abuse or counseling for his problems within one year of separation from service, when doctors told him he had a heart condition, and more than one year after separation at the Johnson City, Tennessee, VAMC (i.e., Mountain Home), in November 1987. Regarding people he knew in Korea who might be able to verify some of his experiences, he stated, "lots of names, but no addresses." VAMC Mountain Home reported in January 1989 that the appellant had received no treatment at that facility; he had only had an examination for rating purposes in July 1987. The appellant sought VA outpatient psychiatric treatment in November 1989, expressing suicidal ideation. He was assessed to be experiencing anxiety associated with increased orthostasis due to cardiovascular disease and to depression. In December 1989, the appellant reported middle insomnia, 12 months of Korean combat as an MP, intrusive memories, past alcohol abuse (none past 25 years), conflict with bosses and family after war, nightmares of combat weekly, stimulated by daily events (e.g., avoids war movies), difficulty enjoying life, angry outbursts. The assessment was PTSD, depression, rule out panic disorder. The appellant was admitted to a VAMC in March 1990 after a suicide gesture with a loaded shotgun. While on a weekend pass, the appellant experienced an episode of nausea and vomiting. Upon return from the pass, in an interview with other family members, the appellant related an incident in which he and another soldier had been guarding a bridge and an enemy scout was able to sneak up on him and placed a gun barrel to his head. He stated he was saved by another soldier who hit the enemy scout with his rifle. The interviewer deemed the incident significant as the appellant stated he had never disclosed this and it was apparent from the reactions from the family that they had never heard of the incident. He reported his symptoms had begun at the time and he had been thinking about the war. Additional discussion revealed other combat experiences he had not disclosed or talked about to anyone since they occurred 39 years ago. The primary diagnosis on discharge was PTSD. The appellant testified at a hearing in March 1990 that his primary duty in Korea was guarding roads and bridges; various platoons or squads were assigned to duty in numerous locations for up to several days, often less. He stated he received three bronze stars, one for the Spring offensive, one for the Chinese intervention, and he did not recall the reason for the third. He related an instance in which the Chinese were south of his position, cut off by Marine units to the north, and trying to get back north. During the course of the action he was in a building with enemy artillery fire passing over head. He also described being cut off in a location without resupply for several days. He stated a cousin with whom he was close was killed in action across a river from his location, of which he learned later; he had not known at the time that his cousin had been killed. He stated the next day he saw a truck full of dead soldiers, which has bothered him since. He testified that the events in Korea did not bother him immediately upon return and discharge from the service, but after several years he began to have dreams, began to drink, and separated from his wife for a year. He stated he developed a heart problem and had passing out spells starting about 1973; he had had bypass surgery, but he doubts he had a problem with his heart because he was told later at a VA hospital that his problem was his stress. He stated he now has feelings like he had in Korea, especially at night when a car backfires loudly, he awakens shaking. He said he does not dream that much, but he does not remember. He stated he has become withdrawn from friends and neighbors in recent years, but had not always been. He said he has a bad temper, which he takes out on his family. He reported a suicide attempt in which he held a loaded shotgun under his chin in his home without being aware he was doing so, but his family and a church deacon intervened. He described his psychoactive medication regimen. He said he first had psychiatric treatment when he had a VA examination in 1987 and the doctor told him of his psychiatric condition. It was the first time he had ever heard of PTSD. In a statement of May 1990, the appellant reported that his first cousin was killed near him during the Spring offensive when Hawachan Reservoir was blown up in 1951 while his unit was trying to use pontoons to save men from the river and simultaneously fighting the Chinese. He was then attached to the 11th Engineers. He reported that two men from his outfit, Arthur Rought from New York, and Corporal German, disappeared and he did not know what happened to them. He reiterated the incident near Inchon in which the enemy scout who put a gun to his head was knocked out by a fellow soldier, whom they captured. He stated his worst nightmare was of guarding a place and hearing the Chinese moving and knowing that something would happen, but not when. He stated they were cut off for supplies for over a week in the Spring of 1951. VA outpatient records from May 1990 to October 1993 show diagnoses and treatment for PTSD, major depression, panic attacks with agoraphobia, angina pectoris, syncopal episodes, and viral enteritis. The appellant participated in a VA PTSD program in September 1990. In interviewing the appellant about his military experiences, he recalled several combat incidents in the Inchon area. He recalled being under fire when helping the 11th Engineers strengthen a bridge to accept tanks retreating from advancing Chinese forces, and burning equipment to keep it from the enemy. He became notably upset when speaking of seeing Korean and American dead. A particularly traumatic memory was of seeing corpses in the river with hand grenades attached to them. He stated he was exposed often to dead bodies and he ruminated over those memories. He recalled the body of a cousin and a semi-trailer filled with corpses. He had frequent memories of a near-death experience in which a Chinese soldier "stuck a burp gun to [his] head but a buddy knocked it aside and [they] took him prisoner." He reported current symptoms of dreams that mixed war experiences with current life. The interviewer noted that in therapy at a Vet Center since the Spring of 1990, six combat incidents kept recurring to him: 1) a traumatic memory of seeing a U.S. plane shot down, 2) being driven off the road when a messenger, 3) an incident in which a truck he was riding in was pushed off the road by a British tuck and he was unconscious until awakening beside a fire in a Korean hut, 4) seeing bodies in foxholes charred by flame throwers, 5) terror from having artillery fired over him, and 6) the near death burp gun incident. Based on collateral interviews with the appellant's wife since 1948 and his adult daughter, an interviewing social worker gained the impression the appellant was someone with who had experienced family turmoil in his teens and moderate combat exposure and had maintained a marginal adjustment for decades through drinking, compulsive overworking during his 27 years as a miner and at other jobs, and distancing himself from his family until physical disablement from his job. His defenses, which were notably characterized by distraction and repression began to fail as he had more time to think and lessened activity. PTSD was manifested by intrusive thoughts, hypervigilance, disturbing dreams, irritability, social constriction and hyper-arousal in response to stimuli concerning the war. After psychological testing and the collateral interviews, the diagnostic impression was PTSD, chronic, with anxiety and depression; major depression. The appellant had VA hospitalizations in June 1990, January 1991, November 1991, January 1992, February 1992, October 1992, and October 1993. Of these, PTSD and major depression were the primary diagnosis in January 1991 and January 1992, with recurrent hospitalizations for chest pain, syncopal episodes, and multiple transient ischemic attacks. Private medical records from Internal Medicine Associates note a psychiatric diagnosis of depression and anxiety; PTSD is not mentioned. The treatment records otherwise pertain to the other multiple physical problems. There are multiple lay statements of record. Statements of April 1992 from H. Yates, P. Hill and S. Hill, and N. Yates are to the effect that each knew the appellant prior to and after service, and his behavior was drastically changed upon his return from service, with much drinking and abusive language, which he had not demonstrated previously. A statement from J. Quisenberry of December 1991 states that he served with the appellant in the 57th MP Company in 1950 and 1951 and that the unit was broken up and members assigned various locations in Korea. A statement from V. DePriest of December 1991 states that he served with the appellant in Company D, 701st MP Battalion from November 1950 to late 1951 in Korea, and that the unit was originally the 57th MP Company of Camp Stoneman, California. A statement from K. Rose of August 1992 states that he served with the appellant in Korea from October 1950 to November 1951 and that they engaged with the "China Com. [sic]" at Shoe Fly bridge Kim Po air base. Communication from NARA in September 1991 states that no unit histories or related records for the 57th MP Company or the 11th Engineering Company [sic] during the battle of Chosin River in Spring 1951 have been found. The United States Army and Joint Services Environmental Support Group (ESG) confirmed by letter in November 1991 the death in action of Corporal Authur [sic] L. Rought, from Broome, New York, on September 19, 1951, but could not document the circumstances. In a letter of February 1994, ESG confirmed the death in Korea of Willard H. Edwards on December 2, 1950, but ESG could not establish that elements of the 701st MP Battalion served in Korea in 1950 or 1951. In a December 1993 statement, NARA informed the RO that it had located Command Reports from 1949 to 1951 and Command Report Daily Journals for 1951 for the 701st MP Battalion, which would be furnished for a fee. The RO so informed the appellant, who has not obtained and furnished the records to VA. II. ANALYSIS The primary question at issue in this case is whether the appellant sustained psychic trauma in service. The diagnosis of PTSD, even if conceded, is not alone sufficient to establish entitlement to service connection. PTSD is a diagnosis defined by the American Psychiatric Association. It is established when a minimum number of diagnostic criteria are demonstrated. Diagnostic and Statistical Manual of Mental Disorders 247-51 (3d ed., rev. 1987) [hereinafter DSM-III-R]. The prime criterion, commonly called the stressor, is defined as follows: The person has experienced an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone, e.g., serious threat to one's life or physical integrity; serious threat or harm to one's children, spouse, or other close relatives and friends; sudden destruction of one's home or community; or seeing another person who has recently been, or is being, seriously injured or killed as the result of an accident or physical violence. DSM-III-R at 247. The other criteria are symptoms in several categories. A person must manifest a minimum number of symptoms in each category to establish the diagnosis. Id. at 247-51. The appellant alleges traumatic experiences in combat. If his participation in combat is verified, and the Board finds his statements to be "satisfactory" evidence of the events he alleges, he need not produce further evidence of a stressor. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304 (d), (f) (1994). The evidentiary rule in section 1154(b) is not circular. The presumption of validity of satisfactory unofficial evidence afforded veterans of combat with the enemy to prove service connection cannot serve to prove a person is a combat veteran. Whether a person is a combat veteran is a question of fact, West v. Brown, 7 Vet.App. 70 (1994), that must be proven by "service department evidence that the veteran engaged in combat . . . ." 38 C.F.R. § 3.304(f) (1994). Where combat with the enemy cannot be established, "the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records which corroborate the veteran's testimony as to the occurrence of the claimed stressor." West at 76. The appellant's DD 214 does not show an award of a Purple Heart Medal, Combat Infantryman Badge, or other similar combat citation. 38 C.F.R. § 3.304(f) (1994). The "Korean Service Medal with Three Bronze Stars" noted on the DD 214 is not a combat action award. The bronze stars are not the "Bronze Star Medal," which is itself only equivocal evidence of combat participation. The only evidence of record other than the appellant's statements to indicate he is a veteran of combat with the enemy is a statement by K. Rose of August 1992 to the effect that he and the appellant engaged with the enemy. The statement lacks the quality of description of details to be credible evidence, especially because it states that the veteran was "engaged" at a place that the appellant has not claimed to have fought. Moreover, the unit he states and the DD 214 confirms he served with in Korea was not found by NARA to have been in Korea. Whereas the appellant has not provided the one known potential source of corroboration of combat activity by his unit, if that evidence first confirmed a reconstitution of his currently documented unit with the 701st MP Battalion, the Board must find that the appellant is not a veteran of combat with the enemy. Whereas the appellant is not a combat veteran, the record must otherwise confirm the occurrence of his alleged stressors. Corroboration of the death of individuals whose death the appellant reported in the record is not confirmation of a stressor. His testimony was, as to his cousin, initially, that he learned of it after the fact. His subsequent statement about the death of his cousin are inconsistent as to when he learned of it and whether he saw his cousin's corpse. As for the death of Corporal Rought, the appellant apparently only learned of it upon the response of the ESG. Confirming 40 years after the fact that someone who was missing, actually died in action cannot be evidence that the loss of that person was then traumatic. The other events that the appellant reports as stressors are purely uncorroborated accounts. They do not represent credible evidence of the occurrence of the alleged events. Despite the severe symptoms of PTSD documented in the medical record and careful evaluation done in the VA PTSD program in September 1990, the diagnosis alone is insufficient to establish occurrence in service of PTSD precipitating stressors. Underlying all the conclusions drawn by the clinicians and the interpretation of psychological testing is clearly the assumption of facts based on history from the appellant. Where that history is not verified, the prime criterion of the diagnosis, DSM-III-R at 247, is missing. Such medical evidence cannot be accorded much probative value. In sum, the clear preponderance of the evidence is against finding entitlement to service connection for PTSD. ORDER Service connection for PTSD is denied. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.