Citation Nr: 0000063 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 96-02 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for Osgood-Schlatter disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Howard M. Scott, Associate Counsel INTRODUCTION The veteran had active service from September 1990 to May 1992, in addition to one period of active duty for training (ACDUTRA) from March to August 1989. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 1995, the RO denied service connection for Osgood-Schlatter disease. The veteran's notice of disagreement (NOD) was received in February 1995. A Statement of the Case (SOC) was issued in May 1995. The veteran's substantive appeal was received in June 1995. In September 1995, the RO denied service connection for PTSD. The veteran's NOD was received in November 1995. The SOC was issued in December 1995. The veteran's substantive appeal was received in December 1995. FINDINGS OF FACT 1. The veteran was not involved in combat with the enemy. 2. None of the veteran's claimed inservice stressors have been verified. 3. There is a state of equipoise of the positive evidence and the negative evidence on the question of whether there was an increase in the severity of the veteran's Osgood- Schlatter disease during his military service. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by the veteran's military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). 2. Osgood-Schlatter was aggravated during the veteran's military service. 38 U.S.C.A. §§ 1110, 5.107(b) (West 1991); 38 C.F.R. 3.303, 3.304, 3.306 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claims for service connection for PTSD and for Osgood- Schlatter disease are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). 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 claims which are not implausible when his contentions and the evidence of record are viewed in the light most favorable to those claims. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. Further, with regard to the PTSD claim, the record documents numerous attempts by the RO to verify the stressors claimed by the veteran. Under the circumstances, the Board finds that no additional action is necessary to meet the duty to assist the veteran. 38 U.S.C.A. § 5107(a). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a preexisting injury or disease contracted in line of duty. 38 U.S.C.A. § 1110. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). I. PTSD VA regulations recognize that symptoms attributable to PTSD often do not appear in service. Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the condition, (2) credible supporting evidence that the claimed in-service stressor actually occurred, and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. If the evidence establishes that the veteran engaged in combat with the enemy, and the claimed stressor is related to that combat, the veteran's lay statements alone may establish occurrence of the claimed in-service stressor, 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. 38 C.F.R. § 3.304(f). Where the claimed stressor is not related to combat, "credible supporting evidence" means that "the appellant's testimony, by itself, cannot as a matter of law, establish the occurrence of a noncombat stressor." Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The veteran contends the following: he came under mortar fire in Iraq; he witnessed an incident he alternately described as a suicide or an accidental shooting of one Navy SEAL by another; he was ordered to temporary duty as a part of Operation Provide Comfort to help Kurdish refugees fleeing Iraq, and some of the refugees he saw had been wounded by chemical or biological weapons or had been physically assaulted by Iraqi troops; he witnessed dead bodies that were charred and burned from Desert Storm. The veteran's DD-214 is somewhat difficult to read but it appears that the veteran's military occupational specialty (MOS) was as an Engineman. This fact is corroborated by VA psychiatric treatment records dated in September 1994, which noted that the veteran reported that he was a diesel mechanic while in the Navy. The awards and decorations listed on the veteran's DD-214 to not indicate that he was involved in combat. In addition, the veteran has not provided any corroboration from fellow service-members to support a contention that he was engaged in combat. In view of the service records that do not indicate that the veteran was involved in combat, and the lack of evidence to corroborate the veteran's assertion that he was, the Board finds that the veteran was not involved in combat. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 145 (1997). At this point, the Board acknowledges that the claims file includes numerous medical diagnoses of PTSD. However, since the veteran was not involved in combat, any stressor supporting a diagnosis of PTSD, requires corroboration. In statements dated in July 1995, September 1995, as well as in his substantive appeal, the veteran provided the stressors discussed above. He stated that since the Navy SEAL who was killed was not part of his unit, he did not know the man's name. He said, however, that he witnessed the wound and that "it was a very gruesome wound." He said that the man was transferred from his own ship, the USS Austin, to the USS Guadalcanal, where he died. The veteran also reported witnessing Kurdish refugees, many of whom were women and children, and many of whom were starving and appeared to have been victims of chemical or biological weapons. In addition, he reported that he came under mortar fire while in Iraq, and that on one occasion his commander ordered his men not to bring their weapons into a Kurdish city in Northern Iraq, leaving them defenseless even though there were explosions and gunfire at night. The Board notes that the RO has made extensive efforts in an attempt to verify the veteran's stressors. In August 1995, the RO notified the veteran that additional, and more specific, information was needed in order to verify his claimed stressors. In subsequent SSOCs, the RO again informed the veteran that his claim had been denied because his stressors could not be verified. The veteran responded in March 1996, by submitting copies of service records of his own, as well as excerpts from military and other journals regarding Operation Provide Comfort. The RO has contacted the Chief of Naval Operations, the National Personnel Records Center (NPRC), the Naval Historical Center, and the U.S. Armed Services Center for Research of Unit Records (USASCRUR). The Naval Historical Center responded that it does not hold sick call logs or any other medical records and suggested the RO contact the NPRC. The NPRC responded that it does not have any sick call logs and suggested the RO contact the Naval Historical Center and to ask for deck logs. USASCRUR forwarded numerous pages of military records relevant to the veteran's claim. Some of these were obtained from the Naval Historical Center. The Board is satisfied that the duty to assist has been satisfied in this case. The command history of the USS Austin showed that SEAL Team 8 embarked in January 1991 and disembarked in August 1991. Significantly, however, neither the command history for the USS Austin, the USS Guadalcanal, nor SEAL Team 8 reported any suicide or homicide during 1991. Similarly, deck logs for the USS Austin for May, July, and August 1991 made no mention of a suicide or homicide. USASCRUR was unable to locate deck logs from January to April, as well as June, 1991. In a May 1999 SSOC, the RO notified the veteran of these findings, and again notified him that, in order to verify the death of the SEAL, he should provide as specific information as possible, including the man's name and the date of the incident. The veteran responded in June 1999 but did not provide any additional details. The Board notes that while the veteran has indicated that he remembers that the Navy SEAL had five or six children, he did not know the man's name, as they were in different units. The information provided by the veteran in March 1996, as well as the information obtained from USASCRUR, confirmed that from April 25, 1991, to May 4, 1991, the veteran had been temporarily assigned to a unit charged with providing humanitarian assistance to Kurdish refugees in Northern Iraq and Southern Turkey. A May 1991 article from the Camp Lejeune Globe noted that some of the refugees were treated for chemical burns. However, the Board does not view the generalized reporting in this publication regarding some refugees being treated for chemical burns as sufficient verification that the veteran was exposed to or a witness to such incidents. The mere fact that he was assigned to an overall military operation which involved certain events does not in itself show that the veteran himself was involved just as the mere presence in a combat zone does not per se show that a particular veteran was involved in combat. The record does not include any statements from fellow servicemembers attesting to any of the stressors claimed by the veteran, and none of the official military records support his assertions as to his exposure to or witnessing of any of the claimed stressors. In other words, the record does not include any credible supporting evidence of the claimed stressors. At noted earlier, the veteran's assertions alone are not sufficient since it has not been shown that he was engaged in combat. To summarize, the record does clearly include medical diagnoses of PTSD. However, the United States Court of Appeals for Veterans Claims (the Court) has held that a diagnosis of PTSD related to service based on an examination which relied upon an unverified history is inadequate. West v. Brown, 7 Vet. App. 70, 77 (1994); See also Wilson v. Derwinski, 2 Vet. App. 614 (1992). Accordingly the diagnoses of PTSD, based as they are on unverified in-service stressors, or on no stressors at all, are inadequate for a grant of service connection. In the event that the veteran is able to provide more details concerning his alleged stressors, the Board would encourage him to submit an application to reopen his claim. However, given the fact that the his current alleged stressors have not been verified, the Board finds that the preponderance of the evidence is against the veteran's claim for entitlement to service connection for PTSD. The Board finds further that the evidence of record is not so evenly balanced so as to raise a doubt as to any material issue and hence the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107. Accordingly, the veteran's claim is denied. II. Osgood-Schlatter's Disease The RO has denied the veteran's bilateral knee disability claim on the basis that the evidence shows that preexisting Osgood-Schlatter's Disease was not aggravated during his period of active military service. After reviewing the evidence of record, the Board cannot agree. While it is true that certain service medical records, such as some physical examination reports, do not reference any knee problems. However, other service records do document complaints of bilateral knee pain and diagnoses of Osgood- Schlatter's disease. Post-service records continue to show such a diagnosis. Although the most recent item of medical evidence, a report of a March 1997 VA examination is to the effect that no knee disorder was found, various other medical records dated in 1996 do include diagnoses of Osgood- Schlatter's disease. The Board believes that the totality of the evidence sufficiently shows that the veteran suffers from chronic bilateral knee disability, although it may be asymptomatic at certain times. At any rate, the underlying question is whether there was an increase in severity of the bilateral knee disability during service. Service records dated in 1989 document pertinent complaints of bilateral knee pain and also refer to a twisted right knee. The veteran continued to receive treatment for "old," or "history of" Osgood-Schlatter's disease, with chronic chondromalacia patella, with the last entry noted in August 1989. The veteran's separation examination report, dated less than a week later, however, noted no abnormality of the lower extremities. The veteran reported a history of having a knee problem that was being evaluated. The veteran's entrance examination report for his period of active duty is not available. In July 1991, the veteran complained of left knee pain from twisting and hitting the knee. The assessment was medial collateral ligament strain, left knee. The remainder of the service medical records noted no complaints of, or treatment for, any disease of, or injury to, the knees. The veteran's separation examination report indicated no abnormality of the lower extremities. The veteran reported a history of having a knee strain in boot camp. The examiner reported a history of bilateral knee pain and Osgood-Schlatter's disease. VA treatment records in December 1993 noted that the veteran complained of bilateral knee pain. He reported a history of Osgood-Schlatter's disease, diagnosed at age 18 or 19. Examination of the knee was unremarkable except for "maybe laxness in joint." The diagnosis was Osgood-Schlatter's disease. The veteran was hospitalized for psychiatric treatment from June to July 1995. Physical examination conducted on this occasion noted that the veteran had no erythema or edema in the knees, but there was "discomfort with resistance." A VA examination was conducted in February 1996. The veteran complained of occasional bilateral knee pain with exercise, and said that he had had "several episodes of his left knee giving away, especially when going up and down stairs." He also reported clicking and grinding, exacerbated by cold and wet conditions. The examiner noted that the veteran had "an extreme amount of looseness and there are very lax joints." The examiner's impression was Osgood-Schlatter disease and very lax knee joints with frequent left knee pain. As noted above, the veteran was hospitalized at VA psychiatric facilities on a number of occasions between September 1995 and December 1996. Treatment records from these periods of hospitalization noted that the veteran complained of "bilateral knee pain due to Osgood-Schlatter disease." The discharge diagnoses included Osgood-Schlatter disease. The veteran was provided another VA examination in March 1997. The examiner noted that there was no swelling of the knees, the veteran's gait was normal, range of motion was normal, and there was no evidence of ligament laxity. The examiner's impression was "knee disorder - not found." As noted at the outset, in light of the overall evidence, the Board does not view the March 1997 examination report as showing no chronic bilateral knee disability, only that it was not symptomatic at the time of that examination. While it is clear that the veteran suffers from Osgood- Schlatter's disease, the evidence does not clearly show an increase in the severity of this disorder during the veteran's service. However, the Board cannot conclude that the preponderance of the evidence shows no increase in severity during service. In other words, the Board believes that the positive evidence and the negative evidence are in a state of equipoise on the question of whether there was an increase in severity during service. Under such circumstances, the benefit of the doubt is given to the veteran. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for PTSD is not warranted. To this extent, the appeal is denied. Entitlement to service connection for Osgood-Schlatter's disease is warranted. To this extent, the appeal is granted. ALAN S. PEEVY Member, Board of Veterans' Appeals