Citation Nr: 0101575 Decision Date: 01/22/01 Archive Date: 01/31/01 DOCKET NO. 94-07 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Vito A. Clementi, Counsel INTRODUCTION The appellant had active duty from June 1970 to June 1971. He served in Vietnam from February 3, 1971 to June 30, 1971. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (the RO). FINDINGS OF FACT 1. The appellant is not a combat veteran. 2. The appellant does not have PTSD which is related to his military service. CONCLUSION OF LAW PTSD was not incurred in or as a result of the appellant's active military service. 38 U.S.C.A. §§ 1110, 1154 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant argues that he has PTSD as a result of his experiences in Vietnam and that he should therefore be granted service connection for that disorder. By law, the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990); 38 U.S.C.A. § 7104(d)(1) (West 1991). With these requirements of law, the Board will first review the evidence of record as found in the appellant's claims folder, review the particularly applicable law, and proceed to its analysis of the claim at issue. Factual Background The appellant's service medical records reflect that during his induction physical examination in September 1969, he reported that he had previously experienced or was then experiencing numerous physical symptoms, including "night sweats," shortness of breath, frequent urination, motion sickness, frequent trouble sleeping, and bed wetting. The examining physician further noted that the appellant reported he was an occasional bed wetter. Two weeks after he entered service in June 1970, the appellant was experiencing urinary incontinence and had enuresis on four occasions. He was noted to be overly anxious. The appellant's service personnel record reflects that he was trained as a wheel and tracked vehicle mechanic. His record of assignments reflects that upon his arrival in Vietnam, he was assigned as a "wrecker oper[ator]" with a General Support Group, 2d Maintenance Battalion. The appellant was hospitalized in April 1971, while he was in Vietnam. It was reported that he contemplated a "manipulative suicidal gesture of low lethality" because he had failed in his immediate goal of being sent home. The examiner noted that the appellant was an "extremely immature individual" who maintained that he should be sent home so that he could be with people who "understand him better". The appellant was noted to have cried frequently and stated he was worried about his wife being unfaithful to him. The examiner opined that while the appellant was tremulous, there was no evidence of a psychotic or emotional disorder, and that the appellant's depression was "situational," and was "centered around his desire to go home." He was diagnosed to have a "severe immature personality characterized by the inability to stand the stresses of a combat zone." It was recommended that he be administratively discharged. The appellant's report of separation from the Armed Forces reflects that he is the recipient of the National Defense Service Medal, the Vietnam Service Medal, an Overseas Bar and a sharpshooter's proficiency badge. There is no pertinent medical or other evidence for approximately the next two decades. The appellant was diagnosed to have PTSD in June and July 1991; and in March and September 1992 and March 1993. The bases of the opinions rendered by the physicians was that the appellant had reported that he had undergone various stressful incidents in Vietnam. During a July 1991 VA psychiatric evaluation, the appellant reported that while in Vietnam, he was nearby a child who "blew up," and that the child's body parts were splattered over him. He also stated that he once tried to bury a body that had been decaying, but that as he moved the corpse, its arm fell off. The appellant reported that he had been in combat and had participated in a firefight. In August 1991, the appellant reiterated that he never worked in his military occupational specialty, mechanic, but that he was "on perimeter duty," and participated in "patrols to fire bases and areas along [the demilitarized zone]." The appellant also reported that he "lost eight buddies," and he learned not to make friends. He stated that he was injured in the knee by flying debris when his installation was subjected to incoming fire "all night long". In September 1991, the appellant reported that he killed a child while in Vietnam. He stated that he was subjected to incoming enemy fire on a nightly basis and that he had his "teeth knocked out by flying debris." As to the friends he knew killed in Vietnam, the appellant reported their names were the nicknames "Mr. C.," "[redacted]," "[redacted]," and "[redacted]." No given names were reported. During a March 1992 VA hospitalization, the appellant reported that while in Vietnam, he was assigned to the 82d Airborne Division, where because he was not needed in his assigned military occupational specialty he served as a perimeter guard and participated in "short-range patrol duties." He added that he was later transferred to the 5th Cavalry, where he was again a perimeter guard and "rode shotgun on convoys". He reported that he lost "eight close friends" and that he was constantly exposed to incoming mortars, rockets, and sniper fire. In a June 1994 statement, the appellant related that while in Vietnam, he shot and killed a young boy who was attempting to reposition mines so as to strike American Forces. The appellant related that it was a result of this incident that he was hospitalized in Vietnam. In May 1996, the appellant was requested to provide specific information as to his claimed combat stressors. He was advised that he was to provide the "who, what, where and when" of each stressor, and that as a minimum he was to indicate the location and approximate time of each event in question. In a statement received in June 1996, the appellant reiterated prior accounts of his claimed stressors. He also reported that when one of his friends was killed in Vietnam, it reminded him of his cousin, R.B., who was earlier killed in Vietnam. The appellant reported that although he was asked for specific information regarding the names, places, and circumstances of his claimed stressors, he was not able to provide this information because his "mind hurts" when he attempted to recall his service. However, the appellant reported that he was subjected to "numerous" mortar attacks. By letter received in May 1997, the United States Army and Joint Services Environmental Support Group (presently the U.S. Armed Services Center for Research of Unit Records [USASCRUR]) reported that its records failed to document attacks at Phu Bai (the location of the appellant's unit) or upon convoys of the 2d Maintenance Battalion (the appellant's unit) during the approximate four months when the appellant was in Vietnam. Relevant Law and Regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (2000). The resolution of this issue must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which the claimant served, his medical records and all pertinent medical and lay evidence. Determinations relative to service connection will be based on review of the entire evidence of record. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 3.303(a); see Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Notwithstanding the lack of a diagnosis of a disability during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Service connection - PTSD Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f). With regard to the second criterion, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); see Collette v. Brown, 82 F.3d 389 (Fed.Cir. 1996); Gregory v. Brown, 8 Vet. App. 563 (1996); Zarycki v. Brown, 6 Vet. App. 91 (1993). Combat status In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). In Zarycki, supra, it was held that under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) and (f), the evidence necessary to establish the incurrence of a recognizable stressor during service to support a claim of service connection for PTSD will vary depending on whether the veteran "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60 (1993). It has also been observed that the determination as to whether the veteran "engaged in combat with the enemy" is made by considering military citations that expressly denote as much and/or other service department or lay evidence that is credible. See Doran v. Brown, 6 Vet. App. 283, 289 (1994). In Kessel v. West, 13 Vet. App. 9 (1999), the Court observed that the import of the statute is ascertained when viewed in the context of comparing the evaluation of the merits of the claim of a non-combat veteran and a combat veteran. A non- combat veteran's claim must be denied if the preponderance of the evidence is against the claim. By preponderance of the evidence is meant that the truth of the fact in controversy is "more likely than not." See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). Conversely, a combat veteran's claim cannot be denied unless there is "clear and convincing evidence" to the contrary as to the service incurrence or aggravation element. By "clear and convincing" is meant that there is a "reasonable certainty of the truth of the fact in controversy." See Vanerson v. West, 12 Vet. App. 254 (1999). In short, in order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran's assertion that the stressful event occurred. Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in- service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). VA's duty to assist/standard of review During the pendency of this matter, The Veterans Claims Assistance Act of 2000 ("VCAA") was made law, and provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In part, the VCAA specifically provides that VA is required to make reasonable efforts to obtain relevant governmental and private records that the claimant adequately identifies to VA and authorizes VA to obtain. The VCAA further provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, __ (2000) (to be codified at 38 U.S.C.A. § 5103A). Once the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility, and therefore the probative value, of proffered evidence in the context of the record as a whole. See Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). Analysis Preliminary matters As a preliminary matter, the Board has carefully considered the record, particularly in light of the provisions of the VCAA, and finds that the appellant has been fully assisted in the development of his claim. As described above, in May 1996 the RO attempted to solicit specific information [the "who, what, where and when"] concerning his alleged stressors from the appellant, but the appellant was unable provide such information. As an example, he has not provided given names, only nicknames, of comrades who he reports were killed in Vietnam. As a result, it is manifestly impossible to perform meaningful research in order to verify the appellant's claimed stressors. The record does not reflect, and the appellant does not allege, that there exists any further corroboration for the appellant's claimed stressors that may be in private or governmental records. Indeed, the appellant has reported that he is unable to specifically recall any further data relative to his claimed stressors that may be used in an attempt to research his accounts. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) [observing that the duty to assist is not unilateral on the part of VA, and emphasizing the veteran must lend assistance to provide necessary information that is essential in obtaining the putative evidence]. The Board further observes that the appellant and his representative have been accorded ample opportunity to present evidence and argument on his behalf. In short, the Board believes that VA's statutory duty to assist the appellant in the development of his claim has been satisfied under the circumstances presented in this case. The appellant has been specifically notified concerning what types of evidence is necessary with respect to his claim, and he has neither furnished such evidence or provided VA with information which would enable the government to identify and procure this information. Discussion There are several diagnoses of PTSD of record. The question which must be resolved in this decision is whether the appellant sustained a qualifying stressor within the requirements of 38 C.F.R. § 3.304(f). Without such corroboration, the question of the validity of a diagnosis of PTSD, and therefore whether further medical inquiry should be conducted under the VCAA, is irrelevant. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]. (i.) Combat status Applying the directives of the Zarycki decision, which has been discussed above, the Board first finds that the appellant is not a veteran of combat. Although the appellant served in Vietnam, his military personnel and medical records do not indicate that he participated in combat. The appellant is not in receipt of decorations or awards suggestive of combat status. Although he was awarded the National Defense Service Medal, such was awarded to all personnel for honorable active service for any period between June 27, 1950 and July 27, 1954, or between January 1, 1961 and August 14, 1974. See Manual of Military Decorations and Awards, 6-1 (Department of Defense Manual 1348.33-M, July 1990). The Vietnam Service Medal awarded to the appellant was also awarded to all members of the Armed Forces of the United States serving at any time between July 4, 1965 and March 28, 1973 in Thailand, Laos, or Cambodia or the airspaces thereover in direct support of operations in Vietnam. Id. at 6-1. The appellant's service personnel records indicate that he did not have a combat-related military occupational specialty, and did not serve in a position while in Vietnam where he would have expected to have been exposed to combat during his approximate three month assignment. The appellant was trained as a wheel and tracked vehicle mechanic. Although the appellant has related that he participated in "patrol duties" and as a "convoy guard," there is no evidence to support any finding that the appellant was ever exposed to combat as a result of his duties. In this regard, contrary to his account of being assigned to the 82d Airborne Division and the 5th Cavalry (see March 1992 VA examination), the record reflects that the appellant was assigned to the 2d Maintenance Battalion of a General Support unit (as found by USASCRUR), and to that unit only. Most significantly, despite the appellant's account of being the target of virtually nightly enemy mortar and rocket attacks, USACRUR found no corroboration for any attacks upon his base or upon any convoys participated in by the appellant's unit. The Board observes in this regard that although the appellant reported he was injured in the teeth and in the knee by "flying debris" during two of these "attacks," the record is wholly devoid of any mention of these alleged injuries or attacks, particularly in the context of the appellant's service hospitalization where he was treated for a "severe immature personality." The Board has given careful consideration to the April 1971 hospitalization report. Although the appellant was noted to be unable to stand the stress of being in a combat zone, the report is wholly devoid of any reference to his participation in or exposure to combat of any kind. Instead, it was noted that the appellant's primary goal was to return home because his "wife was dating someone else." No mention whatsoever was made of any combat-related stressor, or of stressors later described by the appellant, such as killing a Vietnamese boy, sustaining injuries in explosions, losing numerous friends, and the like. The Board is of course aware that the appellant, in a June 1994 Statement in Support of Claim (VA Form 21-4138) specifically wrote that he "was hospitalized in a Psychiatric Unit" because he shot and killed a Vietnamese boy. This incident is not mentioned in the report of psychiatric hospitalization while the appellant was in Vietnam. The Board finds the appellant's June 1994 statement not to be credible. The Board places far greater weight on the contemporaneous report of hospitalization during service that it does on the appellant's recollections decades after the fact in the context of his claim for monetary benefits. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ["interest may affect the credibility of testimony"]. As a general matter, the appropriate reliance upon the records of the service department is now well-settled. See Soria v. Brown, 118 F.3d 747, 749 (Fed.Cir. 1997); Spencer v. West, 13 Vet. App. 376, 380 (2000); Malincon v. West, 12 Vet. App. 238 (1999); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994) [all for the general proposition that service department findings relative to an individual's service are "binding on the VA for the purposes of establishing service in the U.S. Armed Forces"]. In this matter, there is no reason to question the appellant's military service records as to their accuracy. Sarmiento v. Brown, 7 Vet. App. 80, 82-83 (1994). These records indicate that the appellant served as a "wrecker operator" for approximately three months in Vietnam, and that contrary to his account of being a constant target of enemy forces, he did not participate in or was exposed to any combat related activity. Based on the above analysis, the preponderance of the evidence of does not indicate that the appellant is a veteran of combat. See VAOPGCPREC 12-99, (October 18, 1999) [holding that the determination of whether a veteran "engaged in combat with the enemy" depends on multiple factors, including the requirement that the veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case by case basis]. (ii.) Stressors As is alluded to above, if the claimed stressor is not combat-related, "the veteran's lay testimony regarding in- service stressors is insufficient, standing alone, to establish service connection and must be corroborated by 'credible evidence'," Doran v. Brown, 6 Vet. App. 283, 289 (1994); see also Kessel, supra. There has been obtained no credible evidence to substantiate the appellant's claimed stressors. There is no corroboration of the appellant's account of having shot a child, nor for his claim that he witnessed a child being killed by an explosion. As discussed in greater detail above, although the appellant contended in 1994 that he was hospitalized in Vietnam as a result of an incident in which he shot and killed a Vietnamese boy, the records of his psychiatric hospitalization in Vietnam made no mention whatsoever of that purported incident, and the Board does not ascribe any credibility to the veteran's 1994 statement. With regard to the appellant's account of having known several service members Vietnam who died in Vietnam, he has not provided any substantiating information as to the names of those individuals, despite having been advised to do so. Moreover, the appellant has not related that he was with these individuals, or was indeed in proximity to them, at the time of their deaths. All of the post-service medical examiners rendered diagnoses of PTSD are based upon the appellant's unsubstantiated and uncorroborated accounts which render such diagnoses not probative. In the absence of such corroboration, a grant of service connection is denied. ORDER Service connection for PTSD is denied. Barry F. Bohan Member, Board of Veterans' Appeals