Citation Nr: 1116771 Decision Date: 04/29/11 Archive Date: 05/05/11 DOCKET NO. 05-23 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD and bipolar disorder. 2. Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from October 1973 to July 1980 and from February 1982 to February 1983. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in October 2007. This matter was originally on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Columbia, South Carolina. In May 2007, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In April 2010, additional evidence was received from the Augusta VAMC. The Board has obtained a signed written waiver of the RO's initial consideration of this additional evidence. Initially, the Board notes that service connection for bipolar disorder was denied by a November 2005 rating decision which was not appealed. In the March 2011 Written Brief Presentation, the Veteran's representative noted that the Veteran underwent VA examination in March 2010, that the VA examiner diagnosed bipolar disorder, and that the examiner failed to opine regarding the etiology of the condition. The representative noted that the Veteran's personnel records indicate that the Veteran "consistently exhibits remarkable variations of attitude and performance. His only consistency is his inconsistency .... Performance and attitude ranges from outstanding to poor and disruptive." The Veteran's representative noted that it appeared symptoms of the condition were present during his enlistment in the Coast Guard and that service connection should be granted for bipolar disorder. Thus, the issue of whether new and material evidence has been submitted to reopen a claim for service connection for bipolar disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Secondly, the Board acknowledges the ruling in Clemons v. Shinseki, 23 Vet. App. 1 (2009), which clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders. As emphasized in Clemons, though a Veteran may only seek service connection for PTSD, the Veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. The Board notes that in addition to the diagnoses of PTSD and bipolar disorder, a diagnosis of major depressive disorder is of record. As such, the Board will adjudicate separately the claim for entitlement to service connection for PTSD and the claim for service connection for an acquired psychiatric disorder other than PTSD and bipolar disorder. The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD and bipolar disorder and the issue of entitlement to an increased evaluation for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran did not serve in combat during his active duty. 2. The Veteran's claimed in-service stressors have not been verified by supporting evidence. 3. The Veteran does not have PTSD that is related to verified in-service stressor. CONCLUSION OF LAW The criteria for the establishment of service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board has thoroughly reviewed all the evidence in the Veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Pursuant to the Board's October 2007 Remand, the Appeals Management Center (AMC) requested the Veteran to provide specific details of his claimed in-service stressful events; sought corroboration of adequately detailed stressors; scheduled the Veteran for a VA PTSD examination; and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's October 2007 Remand. Stegall v. West, 11 Vet. App. 268 (1998). Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has met all statutory and regulatory notice and duty to assist provisions. Letters dated in April 2004, July 2004, October 2007, and February 2008 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 183, Dingess, 19 Vet. App. at 473. Together, the letters informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates. Ideally, the notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Although that was not done in this case, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case after the notice was provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ). For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. The Veteran's service treatment and personnel records, VA medical treatment records, Social Security Administration (SSA) records, identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was accorded a VA examination in March 2010 which addressed whether the Veteran met DSM-IV criteria for PTSD and whether such diagnosis is related to the Veteran's active military service. The opinion provided by the March 2010 VA examiner was made in conjunction with a review of the claims file and physical examination of and interview with the Veteran. The examination in this case is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) Service Connection The Veteran seeks service connection for PTSD. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). The first question that must be addressed, therefore, is whether incurrence of PTSD is factually shown during service. The Board concludes it was not. On his VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran stated that his PTSD manifested in the Army and was documented by his work history. However, the service treatment records are absent complaints, findings or diagnoses of PTSD during service. On the clinical examinations for separation from service in January 1980 and October 1982, the Veteran's psychiatric health was evaluated as normal. On Reports of Medical History completed by the Veteran in January 1980, May 1980, October 1981, February 1982, August 1982, and October 1982, the Veteran denied ever having depression or excessive worry, and nervous trouble of any sort. Thus, there is no medical evidence that shows that the Veteran suffered from PTSD during service. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d) (2010). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2010); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2010). 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to DSM-IV. For the purposes of a diagnosis of PTSD, these criteria are (A) The person has been exposed to a traumatic event that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others and the person's response involved intense fear, helplessness, or horror; (B) The traumatic event is persistently reexperienced by recurrent and intrusive distressing recollection of the event, recurrent distressing dreams of the event, acting or feeling as if the traumatic event were recurring, and intense psychological distress or physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the event; (C) Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following: efforts to avoid thoughts, feelings, or conversations associated with the trauma; efforts to avoid activities, places, or people that arouse recollections of the trauma; inability to recall an important aspect of the trauma; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; restricted range of effect; sense of a foreshortened future; (D) Persistent symptoms of increased arousal as indicated by two (or more) of the following: difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startle response; (E) Duration of the symptoms is greater than 1 month; and (F) The disturbance causes clinically significant distress or impairment in social occupational, or other important areas of functioning. Id. at 209-211. The record includes numerous diagnoses of PTSD. In Cohen v. Brown, the CAVC held that "[m]ental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis." 10 Vet. App. 128, 140 (1997). As such, "a clear (that is, unequivocal) PTSD diagnosis by a mental-health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor." Id. With respect to credible supporting evidence that the claimed in-service stressor occurred, if the evidence establishes that the Veteran was engaged in combat with the enemy or was a prisoner of war (POW), and the claimed stressor is related to combat or POW experiences (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), the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Where, however, the VA determines that the Veteran did not engage in combat with the enemy and was not a POW, or the claimed stressor is not related to combat or POW experiences, the Veteran's lay statements, by themselves, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other credible evidence corroborating the stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). Such corroborating evidence cannot consist solely of after-the-fact medical evidence containing an opinion as to a causal relationship between PTSD and service. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). The Board notes that the Veteran submitted a VA Form 21-526, Veteran's Application for Compensation and/or Pension, electronically in December 2004. In response to Question A-15a, "Did you serve in Vietnam?" the Veteran answered, "Yes." In response to Question A-15b, "When were you in Vietnam?" the Veteran answered, begin date "02/15/1974" and end date "02/15/1975." In addition, the claims file is replete with medical records which note that the Veteran provided a history of Vietnam and combat service. However, the Veteran's DD Form 214 shows that the Veteran entered active duty on October 26, 1973 and was honorably discharged on July 22, 1976. Net active service that period was two years, eight months, and twenty-seven days of which none was foreign and/or sea service. The only overseas service noted in the Veteran's personnel records is from September 23, 1976 to June 21, 1979, in Hawaii. The service personnel records also indicate that the Veteran was assigned to 65th MP Co at Fort Bragg, North Carolina for the performance period August 1974 to August 1975. In addition, the Veteran's service medical records indicate that he was treated for sinus congestion in July 1974 and for stomach cramps and a two-week nose bleed in December 1974 at Fort Bragg, North Carolina; and service personnel records indicate that the Veteran took a basic law enforcement course from January 1974 to February 1974 at Fort Gordon, Georgia. The record also includes the Veteran's Letter of Resume in which he documents his military service from September 1973 to February 1983. The Veteran reported that from September 1973 to June 1974, he was a Military Police Officer with the 65th MP Company at Ft. Bragg, North Carolina; and from June 1974 to September 1976, he was a Drug Investigator, Military Police Investigations at Ft. Bragg, North Carolina. In May 2007, the Veteran testified that he served his two years, eight months and 28 days of foreign service with the Army in Hawaii. In this case, the Board finds that the Veteran did not engage in combat with the enemy and was not a POW. Although the Veteran has alleged that he was a combat Veteran and was in Vietnam from February 1974 to February 1975, the Board finds these statements to be blatantly false and contradicted by the record. As noted above, the Veteran's service treatment and personnel records indicate that the only overseas military duty the Veteran served was in Hawaii. In addition, the Veteran has never alleged, and the record does not demonstrate, that he was a POW. On his original application for compensation received in July 1980, his application for medical benefits received in March 1983, and his applications for compensation received in March 1983 and April 1999, the Veteran denied being a POW. As such, the Veteran's lay statements are not enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other credible evidence corroborating the stressor. The Veteran stated that a check of his 201 file indicates that he was in the Military Police for years where as he was shot at and assaulted on numerous occasions and that he worked numerous fatal traffic accidents where he was knee deep in blood and guts. At the travel board hearing in May 2007, the Veteran testified that he feared for his life as a military policeman in the Army from October 26, 1973 to July 22, 1980. He also testified that a driver pulled a gun on him and he had to pull him through a window and that the gun discharged but that he managed to get the gun away from the driver and handcuff him. The Veteran testified that he saw a lot of fatalities and worked a lot of bad wrecks including an accident in which a four-year old girl was thrown through a windshield at which time he had to sit with his hand in her chest and pinch her spleen off so that she didn't bleed to death until the ambulance got there. At the travel board hearing in May 2007, the Veteran testified that in the Coast Guard he was washed overboard twice and stated, "That's pretty traumatic, especially when you look to see the taillight, the stern lights of the boat going off and you're still in the water and you don't know whether anybody saw you go over or not." The Veteran also stated, "... you just never knew, you were out there all wide open in that, in that little small, small boat and when you approached a shrimp boat you didn't know whether it was full of shrimp, full of cocaine or heroin. So if it was bad guys you were pretty well hung right out there in the open where you were done for. Now one case we took an air coastal freighter and put 100 rounds, ... 50 caliber rounds through it. Got 400 tons of dope off of it. And the captain was shot." The Veteran testified that he personally witnessed and participated in these events as a military policeman and that they still bothered him in the form of dreams, nightmares, and flashbacks. At the travel board hearing, the Veteran submitted information concerning the deaths of J.P.B., J.L.D., and R.B.L. The additional information indicated that J.P.B. was killed on October 31, 1973, during gunfire exchange with suspects of an armed robbery; J.L.D. was killed November 8, 1974, when his police jeep which was going through a red light at an intersection, was hit by an oncoming vehicle; and R.B.L. was killed on October 16, 1976, when a suspect being booked produced a concealed knife and stabbed him severing his femoral artery. The Veteran testified that he knew personally these three MPs. The Veteran was afforded a VA examination in March 2010. At that time, the Veteran reported nightmares about a little girl "at least two times a week". The Veteran reported that in 1977, he was on patrol as an MP and was chasing GIs who were driving drunk and lost control of their car and hit a Volkswagen in which the driver was killed. The Veteran reported that he tried to stop the bleeding of the driver's granddaughter, a three or four-year old child and tried to calm her but that she was dead on arrival at the hospital. The Veteran reported nightmares of a Coast Guard boat in which they shot at and captured a freighter carrying illegal drugs. The Veteran reported that the USCGC Cape Upright was shadowing a freighter for several days, when they refused to obey; the Cape Upright sent 50 caliber rounds. The Veteran reported that the whole thing upset him, and he said that they had to take them down and handcuff them and that they found drugs on the ship. The Veteran reported nightmares of a gas station shootout in which "two buddies got killed." The Veteran reported that the shooting occurred prior to his arrival on the scene. The Veteran also reported that in the "middle of the Atlantic" he was washed overboard and that the cutter left him behind but that he was soon missed and the ship turned around and picked him up about an hour later. The Veteran reported that he was cold and scared to death as he was not sure that "they knew I went over the side." The Veteran reported that he had broken the rules for violent weather when he went up alone to retrieve and item and that he had nightmares about being lost at sea. The Veteran reported being involved in rescuing the Odyssey in the Atlantic. The Veteran said that he was yelled at and threatened by his Coast Guard Captain because he was unable to shoot line close to the victim and that he was afraid that he would hit the victim. The Veteran also reported that in 1974 or 1975, while with the 21st MP Company, he was called to help with a robbery but that when he arrived on the scene, two MPs, his buddies, were already shot and killed. The Veteran said that they were close friends and that one was lying in the middle of the parking lot and the other was dead in the store. In this case, stressful events reported by the Veteran of a general nature (that he was shot at, assaulted, and knee deep in blood and guts and that he saw a lot of fatalities and worked a lot of bad wrecks) would not be contained in a unit history or operational report. Therefore, they are not subject to verification. See Cohen v. Brown, 10 Vet. App. 128, 134 (1997) ("Anecdotal incidents, although they may be true, are not researchable. In order to be researched, incidents must be reported and documented."). In addition, although the Veteran's alleged stressors involving a little girl who died in the auto accident, a man who pulled a gun on him that discharged, two MPs who died in the robbery shootout, and being washed overboard twice, are potentially verifiable, he has not provided sufficient information for VA to independently attempt verification. See 38 C.F.R. § 3.159(c)(2)(i) (2010). In October 2007, the Veteran was requested to complete a PTSD questionnaire and to provide the exact date of the incidents, locations or approximate times (within a two-month date range), detailed description of events and identifying information concerning any other individuals involved including their names, ranks, units of assignment and any other identifying details. Unfortunately, the Veteran did not respond to this request. "[T]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board notes that JSRRC found that the Veteran's alleged stressors involving three members from his unit, the 21st Military Police Company, that were killed had not been corroborated. JSRRC noted that the incidents occurred on October 31, 1973, November 8, 1974, and October 16, 1976 and that the Veteran's personnel file shows that he was assigned to a unit other than the 21st MP Company during all three of the alleged incidents. Indeed, the Veteran's service personnel records indicate that on October 31, 1973, the Veteran was at Fort Jackson, South Carolina; on November 8, 1974, he was with the 65th MP Co at Fort Bragg, North Carolina and not with the 21st MP Co as the Veteran testified in May 2007; and on October 16, 1976, he was in Hawaii. With respect to the alleged incidents in which the Veteran claims that he was shot at, assaulted, knee deep in blood and guts, saw a lot of fatalities and worked a lot of bad wrecks, had his hand in a child's chest so that she didn't bleed to death, had a man pull a gun on him that discharged, and arrived on the scene of a shoot-out where two fellow MPs had been killed during a robbery, there is simply no corroboration in the record. The Board notes that the Veteran was indeed a military policeman and an accident investigator from about 1974 to 1979; and, in fact, received letters of commendation for his excellent performance of his duties as such. In addition, the Veteran's service treatment records indicate that he suffered injuries as a result of his duties as an MP. For example, the record notes that the Veteran was treated for a human bite to his left hand finger and a left knee injury after being bit by one person and kicked by another noted to be a "drunken Indian" in March 1978. The Veteran also sought treatment for a right knee injury after being kicked apprehending someone in September 1978. These facts under other circumstances might tend to lend credence to the Veteran's alleged stressors. However, in this case, it does not. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In this case, the Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he engaged in certain activities and had certain experiences in service. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Credible testimony is that which is plausible or capable of being believed. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (well-grounded case); Black's Law Dictionary 396 (8th ed. 2004). Factors that are to be considered when assessing the credibility of lay evidence includes facial plausibility, internal consistency, consistency with other evidence (lay and medical, including the absence of medical records/treatment), interest or bias, and bad character. Unfortunately, in this case, the Veteran's statements cannot be deemed credible. There are numerous statements in the record which the Board has determine are blatantly false. For instance, as noted above, the Veteran indicated on an Application for Compensation received by VA in December 2004, that he served in Vietnam from February 1974 to February 1975. However, the Veteran's service personnel records indicate that he never served in Vietnam and that between February 1974 and February 1975, he was in Fort Gordon, Georgia and Ft. Bragg, North Carolina. In addition, post service medical records indicate that the Veteran consistently provided false information when seeking medical treatment. For example, the Veteran presented for Mental Health Crisis Intake in February 1999. The Veteran reported that he had had trouble holding a job ever since returning from Vietnam and stated that he had nightmares during his first year. The Veteran also stated that a war movie may increase the tendency to have a nightmare and that he appeared to have an intolerance of Asian individuals. In a separate Mental Health Triage record, it was noted that the Veteran was a combat Veteran with occasional war nightmares and flashbacks. The Veteran also reported to Voc Rehab in February 1999 that he had a tour in Vietnam with the 101st Airborne and stated that he had participated in "Black Ops." It was noted that the Veteran broke down crying during the session. Assessment was PTSD Vietnam. Records from the SSA indicate that the Veteran underwent evaluation in June 1999. The record notes that the Veteran "also has flashbacks from Viet Nam combat. ..." The examiner noted that the Veteran finished high school and enlisted in the Marine Corp and served in Viet Nam for 8 months in something called "black operations" which dealt with killing US defectors operating as a trained assassin. In 1973, he left the military and went to the military police school a few months after initial discharge. He was then sent to Special Forces at Ft. Bragg and there[]after where he was a military police dealing with traffic accidents for three years, he then returned to San Francisco and worked in the northern most counties in California and whole state of Nevada apprehending defectors. In 1980, he started working for a police department. In one year, he was shot twice and stabbed once. He was a police officer until 1985 when he quit. Thereafter, he started driving a truck for three months. DEA contacted him and offered him to participate in a covert operation dealing with child pornography and drug dealing. His cover was as a truck driver. ..." The examiner noted that the Veteran endorsed symptoms of PTSD including anger and flashbacks. Diagnosis included bipolar disorder, type II and PTSD, chronic. VA treatment record dated in January 2001 indicates that the Veteran reported being a combat vet and having nightmares, flashbacks, anger, irritability, vigilance, difficulty with relationships, and repressing memories about the war. The Veteran has also made misleading statements. For example, a November 4, 2004, Mental Health PTSD consult record noted that the Veteran's military trauma was not discussed due to his insistence that it was "classified action." Generally, statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Rucker v. Brown, 10 Vet. App. 67, 73 (1997). However, in the case, the Veteran has on numerous occasions provided false information even while seeking medical treatment. Thus, in this case, the Board finds that because the Veteran has made numerous demonstrably false statements regarding stressors and symptoms of stressors related to his having participated in combat in Vietnam, the Veteran's credibility has been damaged as to all his claimed stressors. The Board notes that the Court in Suozzi v. Brown, 10 Vet. App. 307 (1997), held that corroboration of every detail is not required to satisfy the 38 C.F.R. § 3.304(f) requirement that there be credible supporting evidence that the claimed stressors actually occurred. However, in this case, because of the Veteran's inclination towards making false and misleading statements with regard to his stressors, the Board finds that in order to corroborate the Veteran's alleged stressors, there must not only be corroboration that the Veteran was a member of a unit that faced challenging circumstances, there must be independent corroboration of the specific stressors alleged. The record contains a Coast Guard Meritorious Unit Commendation from the Commandant of the Coast Guard to the USCGC Cape Upright dated May 18, 1983 for meritorious service from October 1, 1982 to March 31, 1983 in performance of Search and Rescue, Law Enforcement, and other assigned missions. The commendation noted that the Cape Upright personnel had successfully prosecuted eleven SAR missions, aggressively pursued law enforcement stemming the flow of marijuana smuggled into Georgia and South Carolina, and assisted the Department of Defense on a very sensitive mission. The commendation noted that among the SAR cases, most noteworthy were the assistance rendered to the F/V Odyssey which was disabled in twenty foot seas during a severe storm and by saving the F/V Captain and her three man crew from certain disaster during an intense storm which claimed the lives of numerous other mariners on the eastern seaboard. The commendation also noted the seizure of the 285 foot marijuana mother ship Lago Izabal which was stopped, boarded, and seized after a thirteen-hour pursuit which ended when the Cape Upright fired fifty rounds of disabling fire. In addition, the Veteran submitted a newspaper article dated November 30, 1982 which notes that the cooperative efforts of land and sea law enforcement units, resulting in what authorities were terming the biggest marijuana haul ever made off the coast of Georgia occurred that past Sunday in which thirty-eight people were arrested and the "mother ship" captured. The article noted, "The Coast Guard performed heroically. The cutter Cape Upright ... engaged in a 13-hour chase at sea, finally turned its .50-caliber machine guns on the large ship and crippled its steering mechanism. ..." At first glance, the Board notes that this commendation letter appears to corroborate the alleged stressors with respect to the Odyssey and the Lago Izabal incidents. However, this is, in fact, not the case. With respect to the Lago Izabal incident, as noted above, the Veteran reported that the whole thing upset him and he said they had to take them down and handcuff them and that they found drugs on the ship. In fact, in a letter dated December 1, 1982, from the Commanding Officer of the USCGC Cape Upright to the Commandant regarding a Congressional inquiry concerning the Veteran, the Commanding Officer noted that two days prior, the unit had made the biggest pot bust in Georgia State history but that the Veteran was upset because he was put on prisoner control instead of being allowed to search the vessel with the boarding officers. The Commanding Officer noted that the Veteran refused to understand that as an E-3, the Veteran had no authority as a federal boarding officer, citing his previous experience in police work. Thus, although there is concrete evidence that personnel aboard the Coast Guard cutter Cape Upright performed heroically as well as concrete evidence that the Veteran was upset, the evidence indicates that the Veteran was upset because he was not directly involved in the operation and only put on prisoner control. Thus, there is no independent corroborating evidence that during the Lago Izabal incident, the Veteran experienced a traumatic event that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others and that his response involved intense fear, helplessness, or horror. Similarly, although there is concrete evidence that personnel aboard the Coast Guard cutter Cape Upright rendered assistance to the F/V Odyssey during a severe storm and saved the F/V Captain and her three man crew, there is no independent corroborating evidence that the Veteran experienced a traumatic event that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others and that his response involved intense fear, helplessness, or horror. With respect to the Veteran's claims that he went overboard twice, once in the "middle of the Atlantic" for about an hour, an August 1982 letter from the Veteran's commanding officer stated, "Having experience in the Armed Forces, [the Veteran] is most adept at knowing just how far he can go before getting himself into trouble. He is most proficient at playing the medical game, suffering unusual injuries. For example, he is the first person I ever heard of who fell off the ladder between the dock and the boat. He was sent to medical at Hunter and he returned fully fit for duty. .. ". Thus, there is evidence suggesting that the Veteran may have gone overboard at least once. However, the evidence indicates that the Veteran was certainly not in the middle of the Atlantic Ocean on this occasion as the cutter was obviously docked. In addition, there is medical evidence that the Veteran was upset after this incident. In the August 1982 letter from the Veteran's commanding officer, he noted that approximately one week after the incident, the Veteran sought medical treatment and received a chit for light duty. The commander noted that the command called the Veteran's doctor and found out that there was nothing wrong with the Veteran other than slight tendonitis in one arm and that he really did not need a light duty chit for that but that because the Veteran seemed so upset with the unit, the doctor had given him one and recommended that he seek psychiatric/counseling help due to his great distress. In fact, Coast Guard service treatment records indicate that the Veteran was seen on June 24, 1982, with complaint of loss of strength in right elbow joint with pain. On July 2, 1982, the Veteran presented with complaints of swelling of right knee for one day and reported trauma to right knee eight weeks prior. On July 7, 1982, the Veteran presented with report that his knee was fine but his elbow was much worse from use. On July 8, 1982, the Veteran presented with episode of chest pain and shortness of breath the night before. Thus, again, there is evidence that the Veteran was upset. However, further review of the Veteran's personnel records indicates that the Veteran was upset with the Coast Guard for not correcting alleged recruiting injustices and for the way in which the Veteran's command treated him. Indeed, a letter authored by the Veteran's then wife dated July 7, 1982 elaborates on problems that the Veteran had been having with his command, both in having leave granted to obtain treatment for his right elbow that he hurt "in a fall on his ship" as well as in having duties assigned. For example, the letter noted one instance in which the Veteran's doctor said that the elbow had a pinched nerve and torn tendons and he told the Veteran to use it as little as possible. The letter noted, however, that a call from the Veteran to his wife indicated that he had been assigned a duty which necessitated his hanging over the side of the ship scrubbing the hull, and when he asked for permission to go to the hospital, it was denied. In fact, the March 2010 VA examiner noted that in the Coast Guard, the Veteran apparently encountered many conflicts with his boat commander and was frequently involved in disagreements with policies, duties, dress, light duty after an injury and was written up as not being able to adjust to being an E-3 in the Coast Guard after having been an E-5/6 in the Army. Thus, it appears from the July 7, 1982 letter, that the Veteran was upset not because of the circumstances surrounding his injury but because of problems he encountered with Coast Guard personnel prior to and subsequent to the injury. In conclusion, the Board cannot find that there is independent corroboration for any of the Veteran's claimed stressors. In view of the fact that none the Veteran's alleged stressors have been independently corroborated, a link between a PTSD diagnosis and a verified in-service stressor is virtually impossible. Nevertheless, even assuming for the sake of argument that at least one of the Veteran's alleged stressors was in fact corroborated, the record is still absent a competent PTSD diagnosis based on any specific in-service stressors. The record includes numerous diagnoses of PTSD. In Cohen v. Brown, the CAVC held that "[m]ental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis." 10 Vet. App. 128, 140 (1997). As such, "a clear (that is, unequivocal) PTSD diagnosis by a mental-health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor." Id. The Veteran underwent VA PTSD examination in March 2010. The Veteran reported nightmares, flashbacks, and intrusive thoughts of the little girl who died as a result of an auto accident, the captured freighter that was carrying illegal drugs, and the gas station shoot-out in which "two buddies got killed." After mental status examination, the examiner noted that it was difficult to determine if the Veteran had service-connected PTSD. The examiner noted that the interview and history indicate that it was plausible that the Veteran could have PTSD stemming from several non-combat traumas that occurred in the military. The examiner noted that the Veteran reported nightmares, intrusive thoughts, rare flashback, avoidance, hypervigilance, anxiety, sleep disturbances, and triggers that remind him of prior traumas. The examiner also noted that the Veteran had been diagnosed by one psychiatrist in 2008 as having symptoms of PTSD. The examiner noted that the Veteran met the DSM-IV criteria of being exposed to traumatic events such as a robbery in which friends were killed and he found the bodies, a young child was killed and he was the first responder until the ambulance came, and he was involved in dangerous mission in rescue and in capturing drug smugglers and that he reported reacting to the trauma with feelings of fear and helplessness. The examiner noted that the Veteran frequently re-experienced the trauma in that he had frequent intrusive memories of these events and distressing nightmares about them. The examiner noted that the Veteran avoided stimuli that reminded him of the traumas and that he preferred to avoid social activities. The examiner noted that the Veteran displayed no significant concentration/memory deficits, that he had mood swings not usually found in PTSD. The Veteran reported that he frequently has limited energy and motivation to do things and at other times he is restless and may experience manic episodes. The examiner noted that the Veteran took medication for bipolar and sleep issues. The examiner noted that there was not a clear diagnosis of PTSD despite exposure to atypical traumas but that there was a clear diagnosis of bipolar disorder. The examiner opined that bipolar disorder seemed to be an appropriate diagnosis and indicated a diagnostic impression on Axis I of bipolar disorder NOS; R/O PTSD; and alcohol dependence in remission by history. The Board notes that there is a difference of opinion among the medical professionals. In deciding whether the Veteran has a competent PTSD diagnosis which conforms to DSM-IV, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. Here, there are legitimate reasons for accepting the March 2010 VA examiner's unfavorable medical opinion over the numerous diagnoses of PTSD in the record. With regard to medical evidence, an assessment by a health care provider is never conclusive and is not entitled to absolute deference. Indeed, the courts have provided guidance for weighing medical evidence. They have held, for example, that a post-service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). Further, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In addition, an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Moreover, a medical professional is not competent to opine as to matters outside the scope of his expertise. Id. citing Layno v. Brown, 6 Vet. App. 465, 469 (1994). A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Also, a medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Finally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In sum, the weight to be accorded the various items of medical evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. In this case, the Board finds that diagnoses of PTSD in the record based on the Veteran's reports of Vietnam service or any type of combat service including "Black Ops" are not probative as they are based on inaccurate factual bases. See Id. Additionally, the Board finds that the diagnoses of PTSD in the record without discussion of specific symptoms and stressors which provided the basis for the diagnosis have only minimal probative value. These includes PTSD diagnoses which have been related to only general stressors, i.e., military service, active duty service, MP experiences, etc. PTSD diagnoses in such cases are, at best, based upon vague and general reference to symptoms without discussion of the specific DSM-IV criteria met and without any indication that specific stressor history was reviewed as part of the basis for the diagnosis. In contrast, the March 2010 VA examiner's opinion was rendered after a review of the claims file, including the Veteran's pertinent medical records and history. The VA examiner's report was detailed and complete, he noted specific stressors and specific symptoms, and his opinion has the proper clinical foundation and predicate. The VA examiner did not dispute any of the Veteran's alleged stressors, instead, he recognized that the examination demonstrated that the Veteran's symptoms satisfied only part of the DSM-IV criteria for PTSD. The VA examiner's statement that the interview and history indicate that it was plausible that the Veteran could have PTSD stemming from several non-combat traumas that occurred in the military, is less of a definitive etiological opinion and more of a speculative opinion, which is insufficient upon which to award service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence merely indicating that a claimed disorder "may or may not" be related to service is too speculative to establish any such relationship). See also 38 C.F.R. § 3.102 (reasonable doubt does not include resort to speculation or remote possibility). The Board, therefore, finds that the Veteran did not serve in combat and that his alleged in-service stressors have not been independently corroborated by the evidence. In addition, the probative value of the medical evidence diagnosing PTSD and relating it to the Veteran's military service is outweighed by the competent medical opinion provided by the March 2010 VA examiner that there was not a clear diagnosis of PTSD despite exposure to atypical traumas but that there was a clear diagnosis of bipolar disorder. Because all of the elements required for a finding of service connection for PTSD are not shown, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for PTSD is denied. REMAND With respect to the issue of entitlement to an acquired psychiatric disability other than PTSD and bipolar disorder, in Bernard v. Brown, 4 Vet. App. 384 (1993), the Court held that before the Board may address a matter that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument, an opportunity to address the question at a hearing, and whether the claimant has been prejudiced by any denials of those opportunities. A review of the claims file reveals that the Veteran has not been properly notified of the provisions of the VCAA with respect to this particular issue. In order to afford the Veteran every consideration with respect to this issue and to ensure due process, it is apparent that the Board must remand this case to ensure that the Veteran is properly notified of the VCAA and to determine whether all evidence needed to consider the claim has been obtained. With respect to the issue of entitlement to increased evaluation for bilateral hearing loss, the Board finds that a remand is necessary. Specifically, the Board finds that the March 2010 VA audiological examination is inadequate. In this regard, the Board notes that in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by service-connected hearing disability in his or her final report. The March 2010 VA examiner failed to address such functional effects. Therefore, the Board concludes that another VA examination is required to ascertain the nature and severity of the Veteran's service-connected bilateral hearing loss. The Board emphasizes that if it is not possible to distinguish the effects of service-connected and nonservice-connected disorders, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so). Accordingly, the case is REMANDED for the following action: 1. Development contemplated by the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) should be undertaken, including, but not limited to, informing the Veteran of the information and evidence not of record (1) that is necessary to substantiate the claim for service connection for an acquired psychiatric disability other than PTSD and bipolar disorder; (2) that VA will seek to obtain; and (3) that the claimant is expected to provide. In addition, the Veteran should be informed of how VA determines disability ratings and effective dates 2. The Veteran should be afforded the appropriate VA examination to determine the nature and severity of his service-connected bilateral hearing loss. The claims file should be made available for review, and the examination report should reflect that such review occurred. The examiner is requested to identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz caused by service-connected disability. A Maryland CNC Test should also be administered to determine speech recognition scores caused by service-connected disability. The examiner is also requested to discuss the functional effects of the Veteran's bilateral hearing loss on his daily activities caused by service-connected disability. Specifically, the examiner is asked to distinguish the degree of impairment due to a service-connected left ear disability from disability caused by left labyrinthectomy in July 2004, or to indicate that impairment may not be distinguished. See Mittleider v. West, 11 Vet. App. 181 (1998). 3. The Veteran should be afforded the appropriate VA examination to determine the etiology of any current psychiatric disorder other than PTSD and bipolar disorder. The examiner should be advised that there is a current diagnosis of major depressive disorder of record. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should identify all current psychiatric disorders (other than PTSD and bipolar disorder) and provide an opinion as to whether such psychiatric disorder(s) is at least as likely as not related to the Veteran's active duty service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 4. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs