Citation Nr: 0007036 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 95-06 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. P. Kennedy, Associate Counsel INTRODUCTION The veteran served on active duty from December 1968 to December 1972 and from April 1974 to February 1976. This case comes before the Board of Veterans' Appeals (Board) from an appeal of a rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veteran Affairs (VA) in which the RO found that new and material evidence had not been submitted to reopen a claim for service connection for PTSD. The veteran appealed the case to the Board where, in a February 1997 decision, the case was remanded for the RO to obtain additional evidence. The case is now back before the Board for appellate review. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim for service connection for PTSD has been developed. 2. The veteran was not engaged in combat during his service in Vietnam. 3. The veteran has not presented credible supporting evidence that the claimed inservice stressors actually occurred. CONCLUSIONS OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim for service connection for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. See Caluza v. Brown, 7 Vet. App. 498, 506 (1994); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The record contains a report of an April 1998 VA psychiatric examination that contains a diagnosis of PTSD based upon stressful events that the veteran relates he experienced during his military service in Vietnam. The veteran's statements regarding the alleged inservice stressors -- most prominently an incident where he witnessed a fellow soldier drive into a landmine, which detonated and killed and dismembered the soldier -- must be accepted at face value for the purpose of establishing a well grounded claim unless the veteran's account of the incident is inherently incredible. See Cohen v. Brown, 10 Vet. App. 128 (1997). Furthermore, the diagnosis of PTSD provided by a VA examiner appears to have been based on the claimed inservice stressors, thus providing some competent evidence of a nexus between an inservice disease or injury and the diagnosis of PTSD. Thus, the veteran has presented a well grounded claim for PTSD. The elements required to establish service connection for PTSD are 1) a current, clear medical diagnosis of PTSD, which is presumed to include both the adequacy of the PTSD symptomatology and the sufficiency of a claimed inservice stressor; 2) credible supporting evidence that the claimed inservice stressor actually occurred; and 3) competent medical evidence of a causal nexus, or link, between the current symptomatology and the specific claimed inservice stressor. 38 C.F.R. § 3.304(f) (1999); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The veteran has not alleged that any records of probative value that may be obtained, and which have not been sought by VA or already associated with his claims folder, are available. The Board accordingly finds that all relevant facts have been properly developed, and that the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. As indicated above, the veteran essentially contends that he has PTSD from his wartime service in Vietnam. He argues that service connection should be granted for this psychiatric disability. After a review of the evidence the Board finds that his contentions are not supported by the record and that, accordingly, his claim fails. The Board finds that the evidence reveals a current clear diagnosis of PTSD and competent medical evidence of a causal nexus between the current PTSD symptomatology and the claimed inservice stressor. The April 1998 VA examination report reveals that the veteran complains of emotional problems consisting of an inability to focus, memory lapses and tremors. He claims that he experienced several traumatic events. The first incident, to which the Board's finds repeated reference throughout the claims file, was a situation in Vietnam where the veteran was on a motorized patrol, checking the roadways for mines, when a friend of his, known only as "Red" from West Virginia, drove into a mine and was killed and dismembered from the explosion. The other incidents that the veteran related involved being trapped by enemy fire during minesweeping operations, seeing a friend get blown up by a hand grenade, and "almost getting killed" when he found himself within 10 feet of Viet Cong soldiers during a monsoon. The examiner diagnosed the veteran as having PTSD, with a Global Assessment of Functioning (GAF) code of 70, according to the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (pp. 46-47)(4th ed., revised, 1994) (or DSM-IV). The DSM-IV defines a GAF code of 70, which the examiner attributed solely to PTSD, for some mild symptoms or some difficulty in occupational functioning, but generally functioning pretty well. The examination report also shows that the VA examiner attributes the veteran's PTSD to his experiences in Vietnam, thus satisfying the requirement for a causal nexus between the veteran's current PTSD symptomatology and his claimed inservice stressors. Where is the veteran's claim is lacking is in sufficient corroborating evidence that the claimed inservice stressor actually occurred. As the Court stated in Cohen, 38 C.F.R. § 3.304(f) requires "credible supporting evidence that the claimed in-service stressor actually occurred", in order for service connection to be granted for PTSD. Cohen at 142. The Court noted, however, that under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304, if the "veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their occurrence and that no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be 'satisfactory' and 'consistent with the circumstances, conditions, or hardships of such service' ". Cohen at 146. If "it is determined that the veteran did not engage in combat, credible supporting evidence from any source showing that his claimed in-service stressors actually occurred would be required for him to prevail". Id. at 147. The Court also pointed out that the opinion of a mental health professional cannot be the basis for establishing the occurrence of an inservice stressor. Id. at 145. Therefore, the Board must first consider whether the evidence shows that the veteran was engaged in combat during his Vietnam service. In a VA Office of General Counsel Precedent Opinion (VAOPGCPREC) 12-99, VA has held that "engaged in combat with the enemy", as used in 38 U.S.C.A. § 1154(b), requires that the veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The veteran's service records show that he was a heavy truck driver, radio telephone operator and an armorer supply clerk with D Company, 26th Engineer Battalion, 23rd Infantry Division (Americal) during his tour in Vietnam from April 1970 to March 1971. These records also show that the veteran participated in the following campaigns: the Vietnam Winter/Spring Offensive, 1970; the Sanctuary Counteroffensive; and the Vietnam Counteroffensive Phase VII. For his service in Vietnam, the veteran was awarded the Vietnam Service Medal and the Republic of Vietnam Campaign Medal with 60 device. The record also indicates that the veteran received the Army Commendation Medal "in connection with military operations against hostile forces". As discussed in VAOPGCPREC 12-99, evidence of participation in a military campaign or operation, alone, would usually not establish that a veteran engaged in combat, since both combat and noncombat activities are involved with these military events. Furthermore, the veteran's military decorations do not include personal awards such as the Silver Star Medal, Purple Heart Medal, or Combat Infantryman's Badge, which would be evidence of the veteran's combat experience. In this case, without downplaying the significance of the veteran's honorable wartime service, the evidence shows that he was in a support role in military operations against the enemy. The evidence shows that the veteran's account of seeing his friend "Red" being blown up after driving over a land mine took place while the veteran was driving a truck. He has not provided sufficient evidence to show that he was involved in actual combat at the time of this incident. Obviously, an incident such as this would be very traumatic to anyone who witnessed it. However, the Board does not find that this constitutes sufficient evidence of "combat" for purposes of negating the need for additional credible supporting evidence for the event's occurrence. The veteran's other reported stressors in his May 1999 response to VA's request for stressor information were that he was involved in a knife fight with a Viet Cong soldier in September 1970 in a village south of Da Nang, and that he stabbed a person to death in August 1970 north of Chu Lai. The Board notes that the veteran reported that he sustained several stab wounds in the September 1970 incident before killing the enemy soldier. Yet the service medical records do not show evidence of treatment for stab wounds. The veteran stated that he did not receive the Purple Heart Medal for his reported injuries; indeed, his service records show no such award. Likewise, he stated that he received shrapnel in his neck and groin, of which he does not explain the origin, but this, too, is not referenced in the service medical records. As for the reported August 1970 incident, the veteran did not give any indication that he stabbed and killed an enemy soldier, or that he was involved in actual combat activity at the time. The Board raises the question of the veteran's credibility of his account of inservice stressors after he submitted a follow-up statement retracting his earlier statement of sustaining stab wounds from a knife fight. In this July 1999 statement, he said, in part, "I was not stabbed, I only had a few scratches". Also in this statement, he stated that he sustained shrapnel wounds when a jeep carrying a captain and a driver pulled off the road and hit a land mine. The Board notes that the veteran did not submit this jeep explosion information to VA in his May 1999 response to VA's inservice stressor information request. The Board has also reviewed the veteran's account of inservice stressors provided during his April 1998, as described earlier. Other than the "Red" landmine incident, the veteran described inservice stressors such as he "almost got killed" when he found himself within 10 feet of Viet Cong soldiers during a monsoon. This evidence does not indicate to the Board that the veteran was engaged in combat at the time. His stating that he almost got killed does not presuppose that he was engaged in combat. Likewise, the other stressors described during this examination -- seeing a friend die when a grenade he was carrying exploded, and receiving incoming fire while searching for mines -- do not necessarily connote that the veteran, individually, was engaged in combat at the time. The Board reiterates that evidence that the veteran served in a region where opposing forces were actively engaged in combat does not necessarily mean that the veteran himself was engaged in combat. The Board finds that the preponderance of the evidence does not show that the veteran was "engaged in combat", in accordance with VAOPGCPREC 12-99, for purposes of precluding the need for credible supporting evidence, as discussed in 38 C.F.R. § 3.304(f). See Cohen, supra. As for credible supporting evidence of inservice stressors, the Board considers much the same evidence that was discussed in the determination of whether the veteran engaged in combat. The Board, in its February 1997 remand decision, directed the RO to request more specific information from the veteran regarding his inservice stressors, including approximate dates and locations of the events, and the name of individuals involved. The Board also directed the RO to request from the U.S. Army and Joint Services Environmental Support Group (ESG, now the U.S. Armed Services Center for Research of unit Records, or USASCRUR) copies of any information, including unit histories, morning reports, casualty lists, and activity reports for "Co D 26th Engr Bn USARPAC" from April 1970 to March 1971, the veteran's dates of Vietnam service. The RO complied with these remand instructions by first sending a May 1997 letter to the veteran requesting more specific information regarding his reported inservice stressors. The record does not show that he responded to this request before the RO requested stressor verification evidence from USASCRUR. The RO included in its request a copy of the veteran's personnel records and his statement regarding the unidentified soldier with red hair who was killed in a mine explosion. In October 1998, USASCRUR responded to VA regarding this request, including providing a copy of unit history reports of Company D, 26th Engineer Battalion, from September 1970 to April 1971. USASCRUR reported evidence of the death of a first lieutenant from a landmine explosion, but the time frame did not correspond to the veteran's Vietnam service. USASCRUR stated in its letter that in order to provide research about the veteran's reported stressor incident, the veteran must provide more specific information, such as the most specific date of the incident, the individual's full name and complete unit designation to the company level. The RO then requested, by a December 1998 letter, more specific information from the veteran. The RO sent another request for specific stressor information to the veteran in March 1999. The veteran responded with additional stressor information in May 1999, as the Board has previously discussed. The veteran replied that the incident in question took place in approximately June 1970, but he could not remember his name, referring to him as "Red" because of his hair, and stating that "Red" belonged to "Hammer Head artillery unit". The veteran went on to describe how he killed a Viet Cong soldier and another person, whom the Board can only presume was an enemy soldier, in approximately August and September of 1970, as was previously discussed with respect to the determination of combat activity. The Board finds that this additional stressor information lacks the specificity to request further research by USASCRUR. The veteran could not provide the name or the unit of the victim of this reported landmine explosion. "Hammer Head Artillery Unit" is clearly not the veteran's engineer battalion, and is not an official unit designation, down to the company level, sufficient to request further research by USASCRUR. Furthermore, the Board finds no means at VA's disposal to corroborate the veteran's account of the killing of two presumed enemy soldiers. Without more specific information from the veteran regarding the landmine incident, as requested by USASCRUR and the RO, or some credible corroborating evidence regarding the two other killing incidents, such as lay witness statements, this evidence is not sufficient credible supporting evidence of inservice stressors. The RO issued a Supplemental Statement of the Case in June 1999 regarding the veteran's lack of credible supporting evidence of inservice stressors. However, in a July 1999 response, the veteran retracted his prior statement regarding being stabbed, stating that he received only a few scratches. He also referenced the previously described landmine incident without providing any amplifying information. Instead, he stated that he witnessed several incidents of vehicles "hitting landmines". The only specific incident on which the veteran reported in this July 1999 statement was another case where a vehicle pulled off a road, hit a landmine, killing the driver and severely injuring the passenger, a captain. The Board notes that this incident does not appear in the unit histories supplied by USASCRUR, and is distinguishable from USASCRUR's finding of evidence of the death of a first lieutenant due to a landmine explosion, which occurred after the veteran's tour in Vietnam, as discussed previously. The Board also finds that this July 1999 statement does not provide sufficient specific information to request further research by USASCRUR. Additionally, as this stressor information is based on the veteran's statements alone, it is not sufficient credible supporting evidence of the incurrence of inservice stressors. In reviewing the entire record, the Board must conclude that there is no credible supporting evidence that the claimed inservice stressors actually occurred. The Board is bound by the prerequisites of 38 C.F.R. § 3.304(f), as previously set forth. Without supporting evidence outside of the veteran's own statements regarding the inservice stressor incidents, his PTSD claim will fail. The Board finds that after weighing the evidence of the veteran's well grounded claim, the record does not contain competent supporting evidence of the occurrence of the claimed inservice stressors. Thus, the preponderance of the evidence is against the claim for service connection for PTSD. Accordingly, the Board must deny the veteran's claim. In February 1997, the Board determined that the claim for service connection for PTSD was reopened, and remanded the matter to the RO for development of the evidence, including a VA examination. The veteran's representative, in February 2000, has noted that the Board's remand included instructions that the veteran be examined by a board of two psychiatrists, to determine the diagnosis of the veteran's current psychiatric disorders, but that the record reflects that the veteran was examined by only one examiner, rather than by two. As noted by the representative, Stegall v. West, 11 Vet. App. 268 (1998), holds that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders, and that the Board's failure to insure compliance with the remand orders is error. The Court further noted, however, that when the appellant has not been harmed by an error in a Board determination, the error is not prejudicial. Stegall at 271. In contrast, the representative here argues that Stegall does not give the Board discretion to consider whether failure to fully comply with the remand instructions would constitute harmless error. In this instance, the Board concludes that the failure to give the veteran a second examination, as specified in the February 1997 remand instructions, is harmless error. This is so because the reason that the claim is denied is due to the absence of competent supporting evidence of the occurrence of the claimed inservice non-combat stressors. Another VA examination by a different examiner would not provide the necessary competent corroborating evidence of the claimed non-combat stressors. Consequently, the Board concludes that it is not necessary to remand this matter again merely for the conduct of another VA examination. ORDER Entitlement to service connection for PTSD is denied. MARY GALLAGHER Member, Board of Veterans' Appeals