Citation Nr: 0002552 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 96-02 713 ) 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. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ralph G. Stiehm, Counsel INTRODUCTION The veteran had active service from May 1966 to May 1969. This appeal comes before the Board of Veterans' Appeals from a March 1995 rating decision of the Department of Veterans Affairs Regional Office (RO) at Muskogee, Oklahoma. FINDING OF FACT The veteran did not engage in combat with the enemy and has not provided credible evidence of a stressor related to his diagnosis of post-traumatic stress disorder. CONCLUSION OF LAW Post-traumatic stress disorder was not incurred in or aggravated in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection previously was denied by the Board in May 1994. Evidence at that time included diagnoses of post- traumatic stress disorder. However, the Board concluded that symptoms meeting the diagnostic criteria for post-traumatic stress disorder were not reliably demonstrated and that the veteran's claimed stressors were not corroborated. Since that initial denial, additional evidence pertinent to the veteran's claim was associated with the claims file, and the Board, in the course of this appeal, determined, in a January 1998 decision that also remanded this case for additional development, that the veteran had submitted new and material evidence to reopen the original May 1994 denial of service connection for post-traumatic stress disorder. At issue, therefore, is whether service connection may be granted for post-traumatic stress disorder. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Elkins v. West, 12 Vet. App. 209 (1999); see also 38 U.S.C.A. §§ 5107, 5108, 7104, 7105 (West 1991); 38 C.F.R. §§ 3.102, 3.156, 20.302, 20.1103, 20.1105 (1999). As a preliminary matter, the Board finds that the veteran's claim for service connection of post-traumatic stress disorder is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (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 his claim. The Board is also satisfied that all the facts relevant to this claim have been properly and sufficiently developed. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition, a link, established by medical evidence, between current symptoms and the claimed in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f)(1999); see also Cohen v. Brown, 10 Vet. App. at 128 (1997). The evidence necessary to establish the occurrence of a stressor during service to support the claim for post-traumatic stress disorder will vary depending on whether the veteran was "engaged in combat with enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1933). If it is determined through military citation or other supportive evidence that a veteran engaged in combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, providing that the veteran's testimony is found to be satisfactory, e.g., credible and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f). If 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 supportive evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); see also West v. Brown, 7 Vet. App. 70 (1994). Evidence to support a claim that a veteran engaged in combat may include the veteran's own statement and an almost unlimited variety of other types of evidence. VA is not required to accept the veteran's assertion that the engaged in combat. See Gaines v. West, 11 Vet. App. 353 (1998). The Board observes that 38 C.F.R. § 3.304(f) recently was amended, during the course of this appeal. In part, language previously in the regulation that expressly recognized that if the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive of the claimed in-service stressor, was deleted. See 38 C.F.R. § 3.304(f)(1998); see also Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The changes to the regulation, however, have no impact upon this case. The claims file includes several medical opinions that the veteran has post-traumatic stress disorder associated with a history of stressful events reportedly experienced by the veteran while in Vietnam. For instance, the claims file contains several opinions from the veteran's private mental health care providers diagnosing post-traumatic stress disorder, including opinions dated July 1989, October 1990, August 1991, February 1994, and April 1994. A diagnosis of post-traumatic stress disorder is also documented in VA treatment records and examination reports, including an October 1990 entry in clinical records and examination reports from February 1993 and March 1996. These reports variously reflect a history of traumatic events claimed by the veteran to have occurred during his service in Vietnam. Although these accounts have varied, these have consisted of having fired upon two Vietnamese civilians at one point and have been subject to enemy fire. A November 1990 report reflects that the veteran complained of having received enemy fire while on base and of having performed duties with the 101st Airborne Division at Phan Rang. A February 1994 record reflects that the veteran reportedly worked as an electronics mechanic, carried a weapon, functioned as a guard to an officer while traveling from one location to another, and at one point fired upon Vietnamese civilians who were bathing. That report adds that the veteran believed he killed a Vietnamese youth during that incident. According to an April 1994 report, the veteran indicated that although he was a carpenter, he performed "electrical duties" and duties as a driver and that he was exposed to battlefield stress in Vietnam. A March 1996 report reflects that the veteran reportedly shot two Vietnamese civilians who were bathing by the side of the road in September 1967 and that his truck came under fire while he was traveling from Phan Rang to Lat Rang in August 1967. In a July 1996 statement, the veteran, who on previous occasions had indicated that a sergeant or team supervisor had been killed in an explosion, indicated that the sergeant's death occurred from November 1966 to January 1967. In addition, the veteran stated in August 1996 that he killed two Vietnamese, identifying the dates as somewhere between September and December 1967. During a Board video hearing, the veteran was afforded an opportunity to more fully present his account of the stressors upon which his claim for service connection for post-traumatic stress disorder is predicated. The veteran indicated that although his MOS (military occupational specialty) was that of a carpenter, while in Vietnam he worked as an electrician and he would ride "shotgun" with the battalion commander or the executive officer. The veteran testified that some time after July 1967, he received a ride in a jeep to Phan Rang from two people from the 101st Airborne Division, and that on the way to Phan Rang he and another man fired at two civilians. Service personnel records confirm that the veteran served in Vietnam from December 1966 to December 1967, his duties being listed as an electrician and carpenter. Initially, however, the Board observes that the claims file contains no satisfactory evidence that the veteran in this case was engaged in combat with the enemy in connection with any of the alleged stressors. For example, the record does not show that he received any combat-related awards or citations and he was not in a combat MOS. See Gaines v. West at 359. Consequently, since it may not be concluded that the veteran engaged in combat with the enemy, corroboration of the alleged stressors is necessary to support the claim. In February 1998, in conformity with the Board's January 1998 remand, the RO sent an inquiry to the U.S. Armed Services Center Research of Unit Records (USASCRUR) requesting verification of the veteran's claimed stressors. The identified stressors consisted of the veteran's allegation that (1) sometime between August and September 1967 while traveling between "Cameron Bay" and Phan Rang accompanied with a specialist and a lieutenant from the 101st Airborne unit, the veteran encountered two civilians bathing by the road and that he and the Specialist opened fired, supposedly killing the two civilians; (2) while the veteran performed construction possibly at "Cam Rohn" Bay, some time between November 1966 and January 1967, a sergeant was killed and two squadron leaders were injured by a bomb, all three of the individuals assumedly being members of B company of the 87th Battalion; (3) the veteran, while serving with the 87th Engineering Battalion, was under constant sniper attacks and constantly exposed to booby traps and sabotage of construction lines. Information received in July 1998 from USASCRUR did not corroborate the veteran's claimed stressors. The information included Operational Reports - Lessons Learned (OR-LL's) submitted by the 87th Battalion for the period ending January 31, 1967 and the period from August 1967 to January 1968; OR- LL's submitted by the 35th Engineering Group, the higher headquarters for the 87th Engineering Battalion for the period from November 1966 to April 1967; extracts from OR- LL's submitted by the U.S. Army Depot Cam Ranh Bay; and morning reports submitted by Company D of the 87th Battalion for January 1967. Although the OR-LL's of the 87th Engineering Battalion document significant activities and operations during the reporting period and the OR-LL's of the 35th Engineering Group reflect that elements of the 35th Engineering Group engaged in construction in many hostile areas, none of the information retrieved confirms that the members of the 87th Engineering Battalion were subject of enemy fire. None of these reports references an incident involving an encounter with two Vietnamese civilians or otherwise provides credible data from which it could be inferred that the veteran was involved with such an encounter. None of the information confirms the veteran's account of an explosion involving a sergeant and two other service members. Although USASCRUR stated in the July 1998 report that morning reports could be obtained directly from the National Personnel Records Center and used to verify casualties, copies of pertinent morning reports were included with the materials furnished by USASCRU and the director specifically stated that a search was conducted of morning reports for Company B and Company D of the 87th Battalion, from December 1, 1966, through January 31, 1967, but USASCRUR was unable to verify the casualties described by the veteran. Thus, to the extent that the veteran's representative relies on the general information as to the availability of morning reports as a duty-to-assist deficiency in this case, the Board is not persuaded that any further efforts in this regard are in order. More specifically, USASCRUR's response reflects that any further attempts to confirm the alleged stressors would require more specific information. Names of fellow soldiers and additional identifying detail were requested of the veteran by the RO in the Supplemental Statement of the Case issued in July 1999. The veteran did not respond to this request. In view of the nature of the evidence offered to date, including the veteran's testimony, it is apparent that he has offered as detailed a statement of his stressors as he is capable of providing at this time. Medical reports submitted by the veteran and dated in 1994 show that he had partial amnesia related to events in Vietnam. Taking all these factors in consideration, the Board concludes that no additional development is warranted in this case. Because the veteran's claimed stressors cannot be confirmed, his claim for service connection for post-traumatic stress disorder must be denied. ORDER The claim for service connection for post-traumatic stress disorder is denied. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals