Citation Nr: 0032029	
Decision Date: 12/07/00    Archive Date: 12/12/00

DOCKET NO.  94-47 659	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for posttraumatic 
stress disorder (PTSD).

2.  Entitlement to service connection for an acquired 
psychiatric disorder.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Mainelli, Associate Counsel



INTRODUCTION

The appellant had active service from January 1964 to 
September 1966.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a July 1993 rating decision, in which the 
Pittsburgh, Pennsylvania, Regional Office (RO) of the 
Department of Veterans Affairs (VA) denied service connection 
for PTSD.  The Board remanded this case in February 1997 and 
March 1999.  The St. Petersburg, Florida, RO currently has 
jurisdiction over the case.

The claim for entitlement to service connection for an 
acquired psychiatric disorder is addressed in the remand 
appended to this decision.


FINDINGS OF FACT

1.  The appellant's claim of entitlement to service 
connection for PTSD is plausible, and VA has satisfied its 
duty to assist the appellant in the development of his claim.

2.  The appellant was not engaged in combat, and there is no 
corroboration or verification of the occurrence of his 
claimed stressors.

3.  The appellant's PTSD is not shown to have its origins in 
his military service.


CONCLUSION OF LAW

PTSD was not incurred or aggravated during service.  38 
U.S.C.A. §§ 1110 and 5107 (West 1991); 38 C.F.R. §§ 3.102 and 
3.303 (1999).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant contends, in essence, that his PTSD stems from 
his exposure to combat and non- combat stressors during his 
service in the Republic of Vietnam during the Vietnam Era.  
His private and VA medical records reflect that he has been 
diagnosed with PTSD and, for purposes of a well grounded 
analysis, the truthfulness of his assertions of exposure to 
traumatic events during service is presumed.  See King v. 
Brown 5 Vet. App. 19 (1993).  Thus, the Board finds that his 
claim for service connection for PTSD is well grounded.  
Cohen v. Brown, 10 Vet. App 128 (1997).

Once a well grounded claim has been established, VA has a 
duty to assist a claimant in the development of the facts 
pertinent to the claim.  38 U.S.C.A. § 5107(a) (West 1991).  
In this case, the RO has obtained his service medical 
records, his personnel records, and his relevant post- 
service treatment records.  The RO has also advised him of 
the evidence necessary to complete his claim, to include lay 
statements from his servicemates, and provided him ample 
opportunity to obtain such evidence.  He has indicated that 
any information contained in his private medical records that 
were not of record was unlikely to support his claim.  The RO 
has also attempted to verify his stressors through the U.S. 
Army and Joint Services Environmental Support Group (ESG), 
the National Personnel Records Center (NPRC), the U.S. Naval 
Historical Center and the National Archives and Records 
Administration (NARA).

By remand order dated in February 1997, the Board instructed 
the RO to contact the appellant and request "Exhibits, pages 
9-166" which were referenced in a brief he submitted on 
March 30, 1994.  Apparently, some of these documents 
consisted of deck logs which summarized the activities of the 
USS KRETCHMER and its crew.  The RO accomplished this request 
and, by letter dated on April 23, 1997, the appellant 
contended that such exhibits had originally been mailed to 
the RO in one large box but, nonetheless, he would 
reconstruct the exhibits.  On October 2, 1997, he submitted 
further arguments and exhibits in support of his claim, but 
he did not submit the formerly referenced exhibit pages in 
their entirety.

In March 1999, the Board remanded this claim again to have 
the RO directly contact the U.S. Navy Historical Center in an 
attempt to obtain deck logs of the USS KRETCHMER.  The U.S. 
Navy Historical Center referred the RO to NARA for this 
information.  In December 1999, NARA informed the RO that 
such documents could be photocopied for a fee of $310.  In a 
letter dated in February 2000, the RO forwarded to the 
appellant a copy of the December 1999 NARA letter and advised 
him that, since VA was prohibited from paying the 
reproduction fees, he would have to obtain the evidence 
himself.

In February 2000, the appellant filed a document entitled 
PETITION FOR GRATIS COPY OF RECORDS in which he requested 
that VA cover the costs of the reproduction fees.  The next 
month the RO issued a Supplemental Statement of the Case 
which advised the appellant that General Counsel for VA had 
issued a precedent opinion on March 6, 1995 which determined 
that VA may require claimants to assume responsibility for 
payment of any fees associated with obtaining copies of 
records maintained by Federal agencies.

The Board has reviewed the appellant's request for VA to 
assume payment of the NARA duplication fee, but finds that VA 
is precluded by 38 C.F.R. § 3.159(b) from paying any fees 
charged by NARA for providing such evidence.  In this 
respect, the regulation specifically states that VA "shall 
not" pay any fees charged by a custodian of records.  
38 C.F.R. § 3.159(b) (1999) (emphasis added).  See also VA 
O.G.C. Prec. 7-95 (March 6, 1995) (VA may require claimants 
to assume payment of reproduction fees by NARA).  
Furthermore, the Board notes that the appellant has been on 
notice since March 1997 to supplement the record with the 
deck logs, but he is apparently unwilling or unable to 
produce his own records or pay the required fee by NARA.  The 
Board further notes that the appellant has not referred to 
any specific information contained in the deck logs that 
verifies his claimed presence on the "whaleboat" in 
November 1965 and/or any of the specific events he has 
claimed.  After reviewing the foregoing development, the 
Board finds that the RO has exhausted all reasonable attempts 
to assist in the development in this case and that all 
evidence necessary for an equitable disposition of this claim 
has been obtained.  The Board accordingly finds the duty to 
assist the appellant has been satisfied.  See Wood v. 
Derwinski, 1 Vet.App. 190, 193 (1991) (the duty to assist is 
not an unlimited duty, or a "one way street"); Hayes v. 
Brown, 5 Vet.App. 60, 68 (1993) (a claimant must cooperate by 
providing information within his control).

Once a well grounded claim for PTSD has been established, a 
claimant has the further burden to establish entitlement to 
an award of PTSD by submitting (1) medical evidence 
establishing a clear 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.  Cohen, 10 Vet. App. at 138.  In this case, 
the RO has denied the service connection claim on the basis 
that the appellant has failed to provide credible supporting 
evidence that his claimed in- service stressors, which have 
been found productive of his PTSD, actually occurred.

The United States Court of Appeals for Veterans Claims (known 
as the United States Court of Veterans Appeals prior to March 
1, 1999) (Court) has made it clear that, where a claimed 
stressor is alleged to have occurred during combat, VA must 
make a specific finding as to whether or not the claimant was 
involved in combat.  Gaines v. West, 11 Vet. App. 353, 359 
(1998).  Service records or "other supportive evidence" may 
establish combat status.  See West v. Brown, 7 Vet. App. 70, 
76 (1994).  VA is not required to accept a claimant's 
assertions that he was engaged in combat but, in arriving at 
its findings of fact, the credibility of the claimant's 
testimony and statements of record must be addressed.  Cohen, 
10 Vet. App. at 145-46.

"Credible supporting evidence" of a non- combat stressor 
may be obtained from service records or other sources, to 
include lay testimony.  Gaines, 11 Vet. App. at 353; Moreau 
v. Brown, 9 Vet. App. 389 (1996).  However, the Court has 
held that the regulatory requirement for "credible 
supporting evidence" means that a claimant's testimony, or 
the medical opinion based upon post- service examination, 
alone cannot, as a matter of law, establish the occurrence of 
a non- combat stressor.  Dizoglio v. Brown, 9 Vet. App. 163, 
166 (1996); Moreau, 9 Vet. App. at 396-96.  Examples of 
"other supportive evidence" includes, but is not limited 
to, incidents of a plane crash, ship sinking, explosion, rape 
or assault, or duty in a burn ward or graves registration 
unit.  See Veterans Benefits Administration (VBA) 
Adjudication Procedure Manual M21-1 (M21-1), Part VI (1999).

The appellant's enlistment examination, dated in January 
1964, reveals a "normal" clinical evaluation of his 
psychiatric status.  On July 12, 1965, he received non- 
judicial punishment due to an unauthorized absence (UA) from 
the USS KRETCHMER for the time period of July 2 to July 7, 
1965.  On July 19, 1965, he again received non- judicial 
punishment due to UA, showing disrespect to a commissioned 
officer and failing to obey an order or regulation.  On July 
29, 1965, he was confined to the brig for 3 days due to 
misbehavior of sentinel or lookout.  On November 11, 1965, he 
was quarantined aboard the USS KRETCHMER for an unspecified 
period of time as result active symptomatology of acute 
urethritis due to gonococcus.

On May 16, 1966, the appellant missed the sailing of his 
assigned ship, and he had UA until the shore patrol 
apprehended him on June 1, 1966.  On June 8, 1966, he 
received a Summary Courts- Martial following a Captain's Mast 
proceeding.  He again went UA from June 8, 1966 until he was 
apprehended on June 11, 1996.  On this date, he reported to 
sick bay while aboard the USS MOORE following an attempt to 
lacerate his left wrist.  He requested to see a psychiatrist 
concerning a personal problem.  He was treated for an 
"abrasion" and admitted to the psychiatric ward at the US 
Naval Hospital (USNH) at Haven based upon a diagnosis of an 
"anxiety reaction."

Clinical records from the USNH at Haven noted the appellant's 
complaint of feeling mad, unhappy and disgusted since leaving 
his wife, who was three months' pregnant, on the East Coast 
the previous year.  He went UA in May 1966 in order to bring 
his wife to the West Coast and had subsequent UA's to be with 
his wife.  He "scratched" his wrists following his most 
recent apprehension and lock up, and had hit his wife the day 
before for no apparent reason.  His pre- service history 
revealed that he came from a broken home and that his mother 
blamed him for the death of his older brother.  He also 
reported a history of attacking his 10th grade teacher and 
two arrests for auto theft which were dropped.  He denied any 
previous problems with employers or shipmates, and did not 
mention any combat or non- combat stressors related to his 
Vietnam experience.

On mental status examination, the appellant presented as a 
bitter, resentful and articulate individual who was aware of 
himself.  He talked mostly about bitterness and resentment 
toward his mother and the Navy and his longing to be with his 
wife.  He threatened suicide if he did not get what he 
wanted.  He was shaking with a generalized tremor.  The 
examiner indicated that the appellant knew the difference 
between right and wrong, and could adhere to the right and 
could cooperate in his own defense.  The examiner thought it 
unlikely that the appellant would make a suitable adjustment 
if he was separated from his wife.  Diagnosis was of 
emotionally unstable personality with a recommendation that, 
if the appellant was not discharged for legal reasons, he 
should be administratively discharged.

On July 13, 1966, the appellant was sentenced to four months 
confinement in the Long Beach Brig following a Naval 
Officer's Special Court Martial.  He was a continual problem 
due to suicidal gestures and had to be transferred to the 
USNH at Camp Pendleton.  He soon was a hospital management 
problem and he escaped from custody shortly after his 
admission.  He was apprehended a short while later and 
returned to the brig.  On neuropsychiatric evaluation, dated 
on July 18, 1966, he admitted to resorting to behavior such 
as wrist abrasions, putting his head in a toilet bowl, 
ingesting cleaning solution and faking amnesia to avoid 
completing his sentence in the brig.  His mental status 
evaluation was negative for active psychosis or suicidal 
ideations, and his self- injurious acts were viewed as 
attempts to "manipulate" his environment.  It was felt that 
his type of management problem was best handled in the brig 
rather than in a hospital.  He was then transferred to the US 
Naval Brig in San Diego.  Thereafter, his conduct improved 
and he was released to active duty in September 1966 with 
fifteen days of his confinement deducted as a good conduct 
allowance.  His September 1966 discharge examination 
indicated a "normal" clinical evaluation of his psychiatric 
status.

The appellant's DD Form 214 shows that he had active service 
from January 1964 to September 1966.  He had lost time from 
July 2 to July 6 1965, May 16 to May 31 1966, June 08, 1966 
to June 10, 1966 and from June 30 to September 8, 1966.  His 
occupational specialty was listed as a "deck hand."  He was 
awarded the National Defense Service Medal.  His DD Form 215N 
reveals that he was also awarded the Vietnam Service Medal.  
He received training in Ships Store Records and Commissary 
records in March 1965, and was assigned to the USS KRETCHMER 
on April 16, 1965.  He was assigned to the USS SAMUEL N. 
MOORE on February 26, 1966.

The evidence of record next reveals that the appellant was 
charged with murder on November 9, 1970.  He was convicted of 
1st degree murder and initially sentenced to life in prison.  
He was charged with larceny by an employee in June 1971 while 
confined in prison.  He was released after seven years in 
prison, but was incarcerated for an additional 10 years in 
1981 due to an aggravated assault.

In December 1987, the appellant filed a claim for 
"neuropsychiatric illness - emotional instability" which 
began in "1966."  In a "Statement of the Case, received in 
February 1988, he indicated that he joined the U.S. Navy in 
1964 with the intent to make a career of naval service.  He 
was a productive member aboard the U.S.S. KRETCHMER before he 
had his first UA in July 1965.  At that time, he received 
orders to depart for Vietnam and he wanted to spend time with 
his family.  In Vietnam, he served with 9 other members of 
the KRETCHMER as part of the "boat exploratory unit."  His 
duties included exploring the coastline of Vietnam and 
searching Vietnamese vessels for contraband.  He recalled an 
incident where he reacted with "terror" when his boat got 
caught in a monsoon storm at night and nearly capsized with 
all of the crew.  He recalled another incident in which he 
became "horrified" when placed under enemy fire.  He also 
witnessed a Vietnamese prisoner "bleed furiously from a 
gunshot wound."  He claimed that he was confronted daily 
with the likelihood of death, and that this situation was a 
"key element" in his emotional disturbances upon his 
return.  He also indicated that his Captain had some concern 
with his friendship with a "homosexual" which caused him to 
be ostracized and transferred to a new duty station in Long 
Beach, California.

Upon his return to the States, the appellant felt a sense of 
rejection as the KRETCHMER returned to sea without him.  He 
continued to have personal difficulties and related an 
incident in which he was verbally abused and spat upon by war 
protestors.  He had UA's on several occasions because his 
requests for leave time were denied.  Eventually, he was 
court- martialed and sentenced to the brig at which time he 
attempted suicide and was transferred to a psychiatric 
hospital.  He had an escape attempt and was diagnosed as 
"emotionally unstabled."  He was discharged in September 
1966.  Within a year from his discharge from service, he 
began a "criminal adventure" involving crimes of theft, 
murder, rape and burglary.  He was of the opinion that the 
military's lack of proper treatment was the "proximate 
cause" of his post- service criminal behavior.

In a document entitled "Appeal to Board of Veterans' 
Appeals," received in September 1988, the appellant 
indicated that he came under heavy small arms fire during a 
whaleboat operation, but did not refer to any other 
stressors.

In January and February 1991, the appellant underwent 
psychiatric consultations by C.M.C, M.D., at the State 
Correctional Institution of Mercer County in Pennsylvania 
with benefit of review of his state correctional 
institutional psychiatric records, his previous VA appeal and 
an interview with his mother.  He primarily complained of 
memory lapses, sleep difficulty, re- experiencing Vietnam 
events, overwhelming guilt from letting his Navy buddies 
down, social withdrawal and fluctuating appetite since 1965.  
His pre- service history included a drowning incident 
involving himself and his two brothers.  His older brother 
drowned to death while he was rescuing his younger brother, 
and he maintained guilt feelings because he was not "man 
enough" to save both of his brothers.  The distress related 
to this incident "came out" in pre- service behavioral 
problems including beating up kids who insulted his brother, 
stealing a car for a joy ride and resorting to drinking 
alcohol.

The appellant further reported an in- service history which 
included punishment for UA due to a misunderstanding with his 
commanding officer.  This same officer caused him problems 
which resulted in further unwarranted disciplinary actions.  
He was transferred to another unit and things went well once 
more.  He started out as a deckhand, but was later promoted 
to a storekeeper.  He volunteered for the boat exploratory 
missions because it made him feel proud and heroic "like 
John Wayne."  He came under fire on his third mission and 
realized, for the first time, that "people were trying to 
kill him."  He remembered feeling like a "sitting duck" 
and "waiting to die" prior to the rescue by the mother 
ship.  He subsequently witnessed numerous instances of people 
being shot, and feared entering "booby trapped" Vietcong 
(VC) boats.  He vividly recalled boarding one boat only to 
find an old man bleeding to death with a crying woman and 
young boy aboard.  He knew that the bullet was from a 
friendly force, but was unable to aid the dying man because 
he was a suspected VC.  He also vividly recalled an incident 
in which he failed to properly hook a hoist line and exposed 
the whaleboat crew to death.  After that event, "he decided 
not to go back out on the search and seizure missions because 
he was 'so upset at what [he] had done.'"  Thereon, his 
crewmembers heckled him because he stopped volunteering for 
the missions.  He returned to the States only to be heckled 
by war protestors.  He then had a memory lapse for several 
months with only a few vague memories, and spent the next 16 
years in a "confused fog, 'detached from reality.'"

Following his discharge from service, the appellant reported 
frequent periods of amnesia, he became a "nomad" and he 
resorted to alcohol and drug usage.  He reported symptoms of 
flashbacks, sleep disturbance, social isolation, fluctuating 
appetite and hypervigilance.  He had three failed marriages.  
In 1971, he murdered a man who made homosexual advances to 
him.  In this respect, he reported that this man initially 
cut him on the leg with a knife and, after that, the man 
"turned into a Viet Cong."  This killing made him "elated" 
and "whole again."  He felt as if he could kill if 
necessary to save his buddies.  He was convicted of first- 
degree murder and sentenced to life imprisonment, but his 
sentenced was reduced and he was released in 1978.  After 
losing a night job as a machinist, he resorted to hanging out 
on the streets using drugs and alcohol.  In June 1980, he 
attended a few sessions with a therapist for depression and 
suicidal ideations.  He was convicted of aggravated assault 
in 1981.  In 1987, he was diagnosed with PTSD and he ended up 
in the PTSD program.

The interview with the appellant's mother revealed that, as a 
child, he was a good kid with no behavioral problems.  He had 
a period of crying spells and being a loner following the 
drowning of his older brother.  He appeared fine before he 
left for Vietnam.  On his return from Vietnam, his behavior 
changed as he was acting foolish and drinking a lot.  He was 
very irritable and moody and he couldn't get along with 
people.  He would holler about boats during his sleep.  He 
was violent and made frequent suicide threats.  He talked a 
lot about events during the war but he refused to see a 
doctor for help.

Based upon the above, Dr. C. offered an impression that the 
appellant manifested PTSD.  It was noted that his witnessing 
the old man bleeding to death and the near fatal patrol boat 
accident where especially traumatic for him.  It was also 
noted that he was probably more vulnerable to acquiring PTSD 
in response to combat trauma because of pre- existing 
narcissistic personality traits and the trauma of helplessly 
experiencing his brother's drowning at age 12.  However, it 
was emphasized that he did not manifest PTSD symptoms prior 
to his serving in Vietnam.  Furthermore, it was noted that 
the content of his recurrent intrusive memories and 
flashbacks unequivocally related to his Vietnam experiences.  
His PTSD was not recognized or correctly diagnosed until 1987 
which worsened his prognosis for eventual cure.  

In October 1991, psychologist J.E.W., Ph.D., of Suburban 
Psychological Services, confirmed the PTSD diagnosis.  
Additionally, clinical psychologist C.K., Ph.D. gave a 
provisional diagnosis of PTSD, in October 1991.

During an April 1992 VA Compensation and Pension examination, 
the appellant reiterated his history of alleged exposure to 
in- service stressors, to include his report that he stopped 
going on whaleboat missions after the incident in which his 
failure to hook up the whaleboat exposed his crew to death.  
A Statement of Facts, submitted during his March 1994 hearing 
before the RO, further detailed that he feared death on a day 
and night basis while in Vietnam.  He indicated that the 
night missions were especially stressful.  He indicated that 
deck longs from the KRETCHMER described volatile situations 
which crewmembers faced while on patrol, but he did not 
indicate that the deck logs recorded his participation with 
the whaleboat operations.  He described these events as 
threats that were "outside the range of usual human 
experience."  He indicated that the sniper fire incident 
involved a life- threatening situation.  He argued that his 
Vietnam Service Medal and ship history of the KRETCHMER 
evidenced his participation in combat.  He also alleged that 
he was awarded a "Letter of Commendation" for his 
performance in Vietnam.  In an argument submitted in October 
1997, he reported almost having his boat capsize during a 
heavy rain storm at sea, encountering enemy fire, watching a 
prisoner bleed to death and almost causing a catastrophe and 
bringing injury or death to his shipmates.

In a letter dated in August 1992, the appellant related that 
the whaleboat incident in which he failed to secure the 
hoisting line occurred during the night of November 14, 15 or 
16 of 1965.  He estimated that the stressor of being fired 
upon while on the whaleboat, which took place "one week 
following my nighttime experience," occurred on or about 
November 20, 1965.

An affidavit from the appellant's mother, dated in October 
1992, attested to her observance of the appellant's behavior 
change upon returning from Vietnam.  She also recalled that, 
upon his return, he appeared disoriented and unstable.  He 
stopped socializing with people and he would not listen to 
anyone.  He acted as if he had a "death- wish."

Unit history of the U.S.S. KRETCHMER reveals that she was 
involved with other vessels off the South Vietnam coast in 
Operation "Market Time."  This was a surveillance activity 
to prevent the shipment of Communist arms and supply to South 
Vietnam by sea.  In November 1965, the U.S.S. KRETCHMER spent 
both day and night in concentrated whaleboat operations in an 
effort to seize all possible infiltrators into the area.  It 
was during this time that her motor whaleboat was taken under 
heavy small arms fire while she was involved in a dual 
roundup operation with Junk Division 16.  No American 
casualties resulted and the USS KRETCHMER's search party 
seized a large number of suspected guerilla infiltrators.  By 
the end of a year of patrol, the ship's crew had investigated 
some 17,000 contacts and boarded over 1,000 small craft.  
KRETCHMER was involved in gunfire support to Marine and Army 
troops on shore following her redeployment to the "Market 
Time" area after February 1966.  The Department of Navy was 
unable to verify the appellant's claim of the hoisting 
incident as such an event was not an incident which would be 
documented.  The USS KRETCHMER received the Vietnam Service 
Medal, but not the Combat Action Medal.

Based upon the above, the Board finds that the appellant's 
allegations of exposure to combat stressors in Vietnam are 
unsupported and unsupportable.  His claimed combat stressor 
involves coming under heavy small arms fire while aboard a 
whaleboat of the USS KRETCHMER in November 1965.  The unit 
history of the USS KRETCHMER indeed shows that her whaleboat 
came under enemy attack in November 1965, but does not 
document his presence on the whaleboat.  His DD 214 and DD 
215 show that he was awarded the National Defense Service 
Medal and the Vietnam Service Medal, but neither of these 
awards is indicative of combat exposure.  His service 
personnel records, which reflect a job description of deck 
hand and training for record keeping, do not tend to show 
that he was involved in combat.  His service medical records 
reflect that he was quarantined for an unspecified period of 
time ("untill [sic] asymptomatic") beginning on November 
11, 1965 due to gonococcus, and his extensive psychiatric 
consultations in 1966 are absent any allegations that he was 
exposed to combat in- service.

In the absence of supporting evidence, the Board must rely 
solely on the appellant's assertions that he was exposed to 
combat.  Review of the record reveals that he has given an 
inconsistent account as to when his alleged combat exposure 
took place.  His 1991 interview with Dr. C. clearly reflects 
his report that the combat incident took place prior to the 
whaleboat incident in which he failed to secure the hoisting 
line.  At that time, he explained that he was so distraught 
over his actions over the hoisting line incident that "he 
decided not to go back out on the search and seizure missions 
because he was 'so upset at what [he] had done.'"  However, 
his interview with a VA examiner in April 1992 and his 
statement received in August 1992 clearly reveal his report 
that the heavy arms fire exposure occurred after the hoisting 
incident.  These two versions of events cannot be reconciled.

Furthermore, the appellant has not offered the names of his 
alleged whaleboat crewmembers nor statements from any other 
servicemates to support his allegations.  Rather, the 
information he provided to support his claim is readily 
available by public record and does not serve to show that he 
himself was involved in any of the events alleged.  The fact 
of the matter is that his claim rises and falls upon the 
veracity of his statements which, beyond being inconsistent, 
must be viewed in the background of medical opinion which 
previously recorded his behavior of "faking" amnesia and 
engaging in "manipulative" conduct and his admitted history 
of crimes involving deceitful conduct (auto theft and 
larceny).  As his assertions of exposure to combat stressors 
are not corroborated by his service records or otherwise 
established by a credible history of such events, the Board 
finds, by a preponderance of the evidence, that the appellant 
did not engage in combat.  As such, the presumptive 
provisions of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f) 
are not applicable in this case.

The appellant's non- combat stressors include witnessing dead 
and injured people, exposing his crew to death by failing to 
properly fasten a hoistline and being subjected to 
indignities by Vietnam War protestors.  In support of his 
claims, he has only offered his lay assertions.  As noted 
previously, his sequence of events involving his whaleboat 
operations cannot be reconciled.  Furthermore, his current 
claim that he was ostracized by his shipmates for his failure 
to hoist the line on the whaleboat is contradicted by his 
statements given to his treating physician at USNH at Haven 
in 1966.  At that time, he specifically denied any previous 
problems with his shipmates.  His alleged harassing by 
Vietnam protestors has not been identified as a stressor 
supportive of his PTSD diagnosis.  In any event, in the 
absence of "credible supporting evidence," he has failed to 
demonstrate his involvement in the stressors alleged.  The 
occurrence of these non- combat stressors is not established 
as a matter of law.  Dizoglio, 9 Vet. App. at 166; Moreau, 9 
Vet. App. at 396-96. 

In arriving at this decision, the Board notes that, during 
the pendency of this appeal, VA has made substantive 
revisions to 38 C.F.R. § 3.304(f), which is the regulatory 
provision which governs the type(s) of evidence required to 
establish service connection for PTSD.  See 64 Fed.Reg. 
32807-32808 (June 18, 1999).  In pertinent part, this 
provision holds that a claimant's testimony alone may 
establish the occurrence of the claimed in- service stressor 
if consistent with the circumstances, conditions, or 
hardships of his/her service.  However, this provision is 
only applicable once a claimant has established that he/she 
engaged in combat with the enemy.  In this case, the Board 
has made a specific finding that the appellant did not engage 
in combat during service.  As such, the regulatory revisions 
to 38 C.F.R. § 3.304(f) have no substantive effect in this 
case.  Accordingly, the Board is of the opinion that no 
prejudicial error falls upon the appellant in the Board's 
resolution of his claim on appeal.

The evidence is not so evenly balanced so as to allow 
application of the benefit of the doubt rule as required by 
law and VA regulations.  38 U.S.C.A. § 5107(b) (West 1991); 
38 C.F.R. § 3.102 (1999).


ORDER

Service connection for PTSD is denied.


REMAND

The Board notes that the RO originally denied a claim for 
service connection for a nervous condition in a decision 
dated in April 1988.  In May 1988 (prior to the November 18, 
1988 date that permits claimants to appeal a final decision 
of the Board to the United States Court of Appeals for 
Veterans Claims) the appellant filed a timely Notice of 
Disagreement and the RO issued a Statement of the Case (SOC) 
in July 1988.  The record contains a Form 9 filing with an 
attached document, entitled "Appeal to Board of Veterans' 
Appeals," date stamped by the Pittsburgh RO on September 26, 
1988.  There is no record in the claims folder or the VACOLS 
system that the Board issued a final decision on this issue.  
In a statement received on March 30, 1994, the appellant 
indicated that the Board never adjudicated the issue.  The 
Board is of the opinion that this issue must be remanded to 
the RO for consideration of the additional evidence of record 
since the July 1988 SOC.  See 38 C.F.R. § 20.1304(c)(1999).

Accordingly, this case is REMANDED for the following action:

1.  The RO should obtain the appellant's current 
private and VA clinical records, and associate 
those records with the claims folder.

2.  The appellant is hereby advised that he has 
the right to submit additional evidence and 
argument on the matters in question while this 
case is in remand status.  Kutscherousky v. West, 
12 Vet. App. 369 (1999).

3.  Following the completion of the above, the RO 
should readjudicate the claim of service 
connection for an acquired psychiatric disorder 
with consideration given to all the evidence of 
record.  If any benefit sought on appeal, for 
which a notice of disagreement has been filed, 
remains denied, the appellant and his 
representative should be furnished a Supplemental 
Statement of the Case and given the opportunity to 
respond thereto.

Thereafter, the case should be returned to the Board, if in 
order.  The Board intimates no opinion as to the ultimate 
outcome of this case.  The appellant need take no action 
unless otherwise notified.

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and 
Statutory Notes).  In addition, VBA's Adjudication Procedure 
Manual, M21-1, Part IV, directs the ROs to provide 
expeditious handling of all cases that have been remanded by 
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.




		
	NANCY I. PHILLIPS
	Member, Board of Veterans' Appeals



 
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