Citation Nr: 0005076 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 94-01 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied service connection for post-traumatic stress disorder (PTSD). The veteran had active service from February 1969 to October 1970, which includes a period of service in the Republic of Vietnam from October 1969 to October 1970. At present, after two prior remands to the RO for additional development, the veteran's case is again before the Board for appellate review. Additionally, the Board notes that, in an October 1998 statement, the veteran requested an appeal hearing at the Central Office in Washington, D.C., before a member of the Board. As such, the veteran's hearing was scheduled for February 8, 1999. However, in a February 4, 1999 statement, the veteran's then representative noted the veteran wished to postpone such hearing. Subsequently, the veteran's hearing was re-scheduled for May 10, 1999. However, in a May 6, 1999 statement from the veteran's representative, it was noted the veteran wished to withdraw his request for an appeal hearing at the Central Office. Thus, as the veteran's October 1998 request for an appeal hearing has been withdrawn, the Board will proceed with its review of the veteran's claim on the present record. See 38 C.F.R. § 20.702 (1999). Furthermore, the Board notes that a VA form 9 (Appeal to Board of Veterans' Appeals) received in March 1997 perfected the veteran's appeal with respect to the issue as to whether the veteran's VA pension benefits were appropriately terminated effective September 1, 1994. However, in a June 1997 VA form 21-4138 (Statement in Support of Claim), the veteran indicated he desired to withdraw such claim. Thus, as the veteran's claim has been withdrawn, this claim is not presently before the Board for appellate review. See 38 C.F.R. § 20.204 (1999). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable determination of the veteran's claim of service connection for PTSD has been obtained by the RO. 2. The veteran did not engage in combat with the enemy. 3. The medical evidence does not show the veteran's diagnosis of PTSD is related to a verified Vietnam-related stressor. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has claimed entitlement to service connection for post-traumatic stress disorder (PTSD). As a preliminary matter, the Board finds that this claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). A well-grounded service connection claim for PTSD has been submitted when there is "[1] medical evidence of a current [PTSD] disability; [2] lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD case is the equivalent of in-service incurrence or aggravation; and [3] medical evidence of a nexus between service and the current PTSD disability." Cohen v. Brown, 10 Vet. App. 128, 137 (1997) (citations omitted). The Board is also satisfied that all relevant facts have been properly and sufficiently developed. Accordingly, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (1999). With respect to PTSD, establishing service connection for PTSD requires a greater evidentiary showing than that necessary to well-ground the claim. Establishing service connection for PTSD requires (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. See 38 C.F.R. § 3.304(f); Anglin v. West, 11 Vet. App. 361, 367 (1998); Cohen, 10 Vet. App. at 138. The evidence required to support the occurrence of an in-service stressor varies "depending on whether or not the veteran was 'engaged in combat with the enemy' . . . . Where . . . VA determines that the veteran did not engage in combat with the enemy . . . the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor." Zarycki, 6 Vet. App. at 98 (citations omitted). The requisite additional evidence may be obtained from sources other than the veteran's service medical records. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996), aff'd, 124 F.3d 228 (Fed. Cir. 1997) (table). Prior to March 7, 1997, governing regulations provided that service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor was 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 would be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(f). However, on June 18, 1999 and retroactive to March 7, 1997, that regulation was amended to read as follows: Service connection for PTSD requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter, a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed inservice stressor actually occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is consistent with the circumstances, conditions, and hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. If the evidence establishes that the veteran was a prisoner-of-war under the provisions of Sec. 3.1(y) of this part and the claimed stressor is related to that prisoner-of- war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions and hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(f) (effective March 7, 1997). Pursuant to Karnas v. Derwinski, 1 Vet. App. 308 (1991), where a law or regulation changes after the claim has been filed or reopened before administrative or judicial review has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. In this case, the record contains various statements by the veteran describing his claimed stressors including, but not limited to, statements made during the February 1990 and June 1992 appeal hearing at the RO, during the January 1994 hearing before a traveling member of the Board, during his various VA examinations through the years, and in a December 1996 response letter to the RO's inquiry for detailed information. Specifically, in these statements, the veteran describes an incident while in Vietnam which he calls "the box." He notes that, while in a hotel room in Vietnam, he shot a man who was coming out of a door in a dresser. This man appeared to be in a trancelike state and appeared to slowly unfold out of the door. In addition, the veteran reports that while in Vietnam he witnessed the death of a friend (without providing a specific name or date of event), was exposed to enemy fire while in the field, and was exposed to rocket attack while guarding a tower in Saigon with another soldier (without providing a specific date of event or identifying the name of his partner). Furthermore, the veteran reports that, while in Newport, two Vietcong came into his bunker and he had to kill one of them (without specifying a date of event). He also reports his bunk-mate enjoyed killing people, and that he was attacked/approached by Vietcong seeking drugs while he was guarding military supplies. Furthermore, the veteran reports that, during his last month in Vietnam, he was referred for a psychiatric evaluation and/or hospitalization and was found to be paranoid schizophrenic. Lastly, in his December 1996 response letter to the RO for more specific stressor information, the veteran noted that [redacted] was wounded between August 1970 and October 1970. However, in a July 1998 VA form 21-4138 (Statement in Support of Claim), the veteran noted that [redacted] was wounded in action in 1970 while serving with the Marine Corps, but that he and Mr. [redacted] were never assigned together; his December 1996 statement was made with the purpose of notifying the RO that he actually knew someone who was wounded in action. With respect to the veteran's claimed stressors, the Board finds that the veteran's DA 20 shows that he served in Vietnam from October 24, 1969 to October 16, 1970, that he served as a crawler tractor operator during his Vietnam service, and that he was assigned to the 372nd Transportation Company during this time. However, neither his DA-20, nor his service records contain any evidence that he served in a combat operation or otherwise engaged in combat against the enemy. As well, his service records and his DD-214 show he received various awards for his service in Vietnam; however, none of these awards indicate he engaged in combat against the enemy. The record also includes an October 1995 letter from the U.S. Army & Joint Services Environmental Support Group (ESG), presently designated the U.S. Armed Services Center for Unit Records (USASCRUR), noting that extracts of operational reports-lessons learned (OR-LLs) submitted by the 4th Transportation Command for May 1, 1969 to July 31, 1969 and from November 1, 1969 to April 30, 1970 were reviewed, and showed that the mission of the 372nd Transportation Company included supervising contract operations for Landing Ship Tanks (LST) slips, barge sites and a pier. The area of operation for the 71st Transportation Battalion, the higher headquarters of the 372nd Transportation Company, was the U.S. Army terminal at Newport. However, ESG also noted that the OR-LLs failed to note any enemy attacks involving the 372nd Transportation Company. Furthermore, the October 1995 letter from ESG notes that they were not able to verify the veteran's incident(s) involving killings of Vietcong, as the veteran had failed to provide sufficient (detailed) information regarding dates, locations, etc. ESG also noted that, although most Vietnam veterans performed guard duty during their tour, they were only able to verify that the veteran was a crawler tractor operator assigned to a transportation unit during his Vietnam service. Moreover, ESG noted that anecdotal incidents, although they may be true, are not researchable as the claimed incident must be reported and documented for it to be researched. ESG was unable to verify the veteran's stressors of being in hand-to-hand combat, killing the enemy, having a friend who enjoyed killing people, witnessing "[redacted]" kill a monkey mascot, or being with "[redacted]" when he killed people. Upon recommendation by ESG in the October 1995 letter, the RO contacted the National Personnel Records Center (NPRC) and requested that an alternative search for morning reports submitted by the 372nd Transportation Company between 1969 and 1970 be performed. Subsequently, in a September 1996 letter from the NPRC responding to the RO's inquiry, the NPRC included a copy of the only morning report found relevant to the veteran. Such morning report is dated October 13, 1970 and notes the veteran was reassigned for medical survey after transfer to Ft. Dix. In addition, the September 1996 letter from NPRC notes that a search for hospitalization records for the veteran dated in 1970 from hospitals located at Long Binh, Vietnam, yielded negative results. Lastly, the Board notes that the veteran's claims file includes a copy of the DD-214 for a soldier named [redacted] [redacted], who served in the U.S. Marine Corps from April 1969 to September 1970, and received a Combat Action Ribbon for his service. In this regard, the Board finds that this DD- 214 verifies the veteran's statement that he knew somebody who was wounded in action, as per the July 1998 VA form 21- 4138 (Statement in Support of Claim) discussed above. With respect to the veteran's service medical records, these records are negative for any complaints of or treatment for any psychiatric disorders or symptomatology. However, the claims file contains copious post-service medical records noting the veteran has been diagnosed with Vietnam-related PTSD and describing his treatment and progress over the years. Specifically, the claims file includes, but is not limited to, medical records from the Presbyterian-St. Luke's Hospital dated from May 1978 to October 1980, records from the West Side Chicago VA Medical Center (VAMC) dated from August 1988 to September 1988, a November 1988 VA psychiatric examination report, records from the North Chicago VAMC dated from August 1989 to July 1999, a November 1991 statement from a VA social worker from the North Chicago VAMC, a November 1991 statement from the Vet Center, a June 1992 letter from a VA physician, an October 1994 VA form 119 (Report of Contact) containing statements by a VA physician, and March 1995, November 1995 and August 1999 VA examination reports. These records also include evidence that the veteran has been diagnosed with and treated for other psychiatric disorders such as drug and alcohol abuse secondary to PTSD, borderline personality disorder, depression/dysthymia, passive- aggressive behavior, and cocaine induced rhabdomyolysis. After a review of the evidence, the Board notes the veteran has reported that he was subject to the various in-service stressors, as described above. However, section 1154(b) does not require the acceptance of a veteran's assertion that he was engaged in combat with the enemy. See Cohen v. Brown, 10 Vet. App. 128, 146 (1997) (citing Irby v. Brown, 6 Vet. App. 132, 136 (1994)). This determination must be made by the Board and adequately supported with reasons and bases. Cohen, 10 Vet. App. at 145 (citations omitted). In this instance, the veteran has provided no evidence or information, beyond his assertions that the claimed events occurred, which permit verification of his involvement in combat. He has been unable to provide the names of any of the persons whose deaths or injures he witnessed during his service, the dates and location of any enemy/Vietcong attack to which he was exposed, and/or the dates of incidents described as "the box" and the killing of the Vietcong found in his sleeping quarters. Thus, upon a review of all the evidence of record, the Board does not find that the veteran engaged in combat against the enemy; and, as a non-combat veteran, his testimony alone is not considered sufficient proof of the existence of a stressor. 38 C.F.R. § 3.304(f). Having determined that the veteran does not have combat status, for the veteran to show that he is entitled to service connection for PTSD, he must submit "credible supporting evidence" that the claimed in- service stressor actually occurred. See 38 C.F.R. § 3.304(f). Credible supporting evidence of the occurrence of an in-service stressor cannot consist solely of after-the- fact reports of such stressors by the veteran to a medical care provider, even where the provider expresses "no doubts as to [the veteran's] honesty in his reports." See Moreau v. Brown, 9 Vet. App. 389, 395-6 (1996). In this regard, the Board finds that the veteran has not submitted credible supporting evidence that the claimed in- service stressor actually occurred. The Board is not satisfied that the veteran's claimed stressors have been verified given the non-specific information provided by the veteran, coupled with the language of the wording used in the October 1995 letter from ESG, and the September 1996 letter from the NPRC, including any attachments to these letters. See Cohen v. Brown, 10 Vet. App. 128, 146 (1997) (citing Irby v. Brown, 6 Vet. App. 132, 136 (1994)). With respect to the required nexus, the post-service medical records generally describe the treatment the veteran received over time for his PTSD, and describe his mental status. This medical evidence links the veteran's various diagnoses of PTSD to the veteran's Vietnam experiences described above, including to the incident described as "the box," his killing of a Vietcong found in his sleeping quarters, his exposure to enemy attack while guarding a tower, and his witnessing of Vietcong killings by allied forces when on guard duty. However, and more importantly, none of the stressors upon which the above confirmed medical diagnoses are based have been verified. The Board acknowledges that the veteran's October 1999 Supplemental Statement of the Case notes that the veteran's statement regarding the wounding of Davis Burton has been verified. However, the Board finds that the veteran's statement in the July 1998 VA form 21-4138 (Statement in Support of Claim), noting his intention was only to show he knew someone who was wounded in action, seems to contradict the findings of the September 1998 Supplemental Statement of the Case that this was a PTSD related stressor, which was verified. In any event, even assuming that the fact that Davis Burton was wounded in action constitutes a verified stressor relevant to this case, the Board finds that none of the medical diagnoses of PTSD are linked to this specific stressor. In this respect, the law is clear that it is the Board's duty to assess the credibility and probative value of evidence and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Specifically, the Board finds that the above discussed diagnoses of PTSD, including the diagnosis found in the August 1999 VA examination report, seemed to be related to the veteran's Vietnam service. However, these records fail to elaborate as to how the examiner(s) arrived at their conclusions and how the diagnoses are related to a verified stressor. As such, the Board is not persuaded that these medical diagnoses of PTSD fulfill the requirements necessary to establish service connection for PTSD. See West v. Brown, 7 Vet. App. 70, 78 (1994) (holding that an examination based on a questionable history is inadequate for rating purposes). Therefore, the Board finds that the medical evidence does not support a conclusion that the veteran has a clear diagnosis of PTSD based on a verified stressor. See 38 C.F.R. § 3.304(f). As such, the statutory and regulatory criteria for establishing service connection for PTSD have not been met. See 38 U.S.C.A. § 1110, 1154(b); 38 C.F.R. § 3.304(f) (as effective prior to and as of March 7, 1997); Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Board acknowledges the record includes evidence, as per an April 1999 letter from the veteran's former representative, that the veteran is currently receiving Social Security Administration (SSA) benefits. In this regard, the Board acknowledges that, once a claimant has established that he/she has a well grounded claim, the VA's duty to assist under 38 U.S.C.A. § 5107(a) includes the duty to obtain records in the control of a government agency, such as in the case of the SSA. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992); Baker v. West, 11 Vet. App. 163, 169 (1998); Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). However, the VA's duty to assist "[i]s not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim . . . . [T]his duty is limited to 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). In this case, the claims file already contains evidence, including medical records, received from the SSA in January 1997, which were reviewed/considered by the Board in arriving at its conclusion; however, this evidence does not provide any information which would change the outcome of this case. In this regard, the Board notes that, in its prior May 1999 remand, the Board noted that the RO should attempt to obtain from the SSA the veteran's records; however, a review of the claims file shows the RO failed to attempt to obtain the additional records from the SSA. Nevertheless, given that the claims file already contains evidence submitted/obtained from the SSA prior to the May 1999 Board remand, and given that the claims file does not contain evidence indicating that the SSA possesses additional records which would change the outcome of this case, the Board finds that the RO's failure to comply with the May 1999 Board remand constitutes harmless error. The Board's review of the veteran's claim on the present record has not been frustrated by the RO's failure to adhere to the May 1999 Board remand. See generally Stegall v. West, 11 Vet. App. 268 (1998); Lastly, the Board notes that other substantive changes were made by regulatory amendments effective November 7, 1996, to the schedular criteria for evaluating psychiatric disorders, as defined in 38 C.F.R. §§ 4.125-4.132. See 61 Fed. Reg. 52695- 52702 (1996); see Karnas, supra. In Cohen, 10 Vet. App. at 139, the Court found that the regulatory changes referenced above adopted the criteria contained in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, 1994 (DSM-IV) of the American Psychiatric Association, for the diagnosis of PTSD. These criteria, the Court held, look subjectively to the susceptibility of the individual to the claimed (and verified) stressors necessary to support a diagnosis of PTSD. This constitutes a liberalization of the prior DSM-III-R standards requiring an "event that is outside the range of usual human experience and that would be markedly distressing to almost anyone." Cohen, 10 Vet. App. at 140-144 (citing Zarycki v. Brown, 6 Vet. App. 91, 99 (1993)); 38 C.F.R. §§ 4.125, 4.126; DSM, Third Edition, Revised, 1987 (DSM-III- R). In this case, it is not clear whether the RO has communicated to the veteran these regulatory amendments through a Supplemental Statement of the Case (SSOC) or otherwise. However, the Board finds the veteran will not be prejudiced by its rendering of a decision on this issue, and thus, there is no requirement to remand this case to the RO for additional consideration. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); VAOPGCPREC 16-92; 38 U.S.C.A. § 7104(c); 38 C.F.R. § 19.5. ORDER Service connection for post-traumatic stress disorder is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals