Citation Nr: 1121899 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 07-28 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including mood disorder, adjustment disorder, depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tiffany Sykes, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2002 to December 2004. This appeal to the Board of Veterans' Appeals (Board) is from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In his July 2007 substantive appeal (on VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board - which is also commonly referred to as a Travel Board hearing. He later requested a videoconference hearing, instead, but he failed to appear at his scheduled hearing in January 2009. He also has not explained his absence (i.e., shown good cause) or requested to reschedule his hearing. Accordingly, the Board is proceeding as though he withdrew this hearing request. 38 C.F.R. § 20.704(d) (2010). The Veteran also earlier had a VA compensation examination in March 2006. The examiner determined the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. No other psychiatric disorders were noted or diagnosed at that time, either. However, in January 2007, following diagnoses of the listed acquired psychiatric disorders, including PTSD, the Veteran was again scheduled for a VA compensation examination in June 2008. He failed to report for this additional examination, and a June 2008 record indicates it was because he was not notified of the examination since his address had changed. So after updating his address, the examination was rescheduled for July 2008. But he again failed to report for even this still additional examination and did not provide any reason or explanation for this, including not receiving the required notice of the evaluation. There is a presumption of administrative regularity under which it is presumed that government officials "have properly discharged their official duties." See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted only by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). Moreover, even omission of an examination notification letter in a claims file does not rebut this presumption where VA's regular practice does not include retaining a hard copy of the letter in the claims file. See Kyhn v. Shinseki, 23 Vet. App. 335 (2010). The Board therefore is proceeding with the adjudication of the Veteran's claim based on the evidence already on file. 38 C.F.R. § 3.655 (2010). But having said that, the U.S. Court of Appeals for Veterans Claims (Court/CAVC) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. The scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). So the Board has recharacterized the claim as for service connection for an acquired psychiatric disorder, hence, not just for PTSD but also encompassing the several other mental disorders mentioned. FINDINGS OF FACT 1. There are no diagnoses of a chronic acquired psychiatric disorder during the Veteran's military service - including when examined for separation from service in November 2004 (when he also had no pertinent subjective complaints or symptoms and there were no relevant objective clinical findings). 2. He also did not have a psychosis within one year of his discharge from service. 3. As well, there is no probative (competent and credible) evidence otherwise linking any current acquired psychiatric disorder to his military service - including especially to the specific incidents alleged. CONCLUSION OF LAW The Veteran's acquired psychiatric disorder - irrespective of the specific diagnosis, was not incurred in or aggravated by his military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION In the interest of clarity, the Board will initially discuss whether the claim has been properly developed for appellate review. The Board will then address the claim on its underlying merits, providing relevant VA case law, regulations and statutory provisions, the relevant factual background, and an analysis of its decision. I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant 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). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court could conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id. The Veterans Court held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), since overturned on other grounds in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). In this case, letters satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in January, March and June 2006, so prior to initially adjudicating his claim for service connection in August 2006, which is the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). The letters informed him of the evidence required to substantiate this claim and of his and VA's respective responsibilities in obtaining this supporting evidence. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of this claim that is obtainable. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained his service treatment records (STRs), VA treatment records, and any relevant lay statements. He also had a VA compensation examination in March 2006, and as already explained the RO also arranged for two additional VA compensation examinations in June and July 2008, both to identify or confirm all current diagnoses and for a medical nexus opinion concerning their etiologies - including, in particular, in terms of whether any or all disorders are attributable to his military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). And it is worth reiterating that, once the RO was informed of his address change following the scheduling of that June 2008 examination, his examination was rescheduled in July 2008, but he unfortunately again failed to report and did not provide any reason or explanation, including that he had not received notice of this rescheduled examination. The duty to assist him with his claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board is satisfied that VA has provided all assistance required by the VCAA and that appellate review may proceed without prejudicing him. II. Entitlement to Service Connection for an Acquired Psychiatric Disorder, Including Mood Disorder, Adjustment Disorder, Depression and PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Psychoses will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish entitlement to service connection, there generally, though not always, must be: (1) a medical diagnosis of a current disability; (2) medical or, in some cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus, i.e., etiological link between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Service connection for PTSD, in particular, requires: [1] a current medical diagnosis of this condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV) (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor), [2] credible supporting evidence that the claimed in-service stressor(s) actually occurred, and [3] medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A "clear" diagnosis of PTSD is no longer required. Rather, as mentioned, a diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f). The Court has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128, 140-141 (1997). In adjudicating a claim for PTSD, the evidence necessary to establish the occurrence of a stressor during service varies depending on whether the Veteran "engaged in combat with the enemy." Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is shown through military citation or other appropriate evidence that a Veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the Veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence of their actual occurrence, provided the testimony is found to be satisfactory, e.g., credible and "consistent with the circumstances, conditions, or hardships of such service." In such cases, no further developmental or corroborative evidence is necessary. 38 C.F.R. § 3.304(f)(2). See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d). On the other hand, under prior regulations, if there is no combat experience, or if there was a determination that the Veteran engaged in combat but the claimed stressor was unrelated to that combat, then there needs to be independent evidence corroborating the Veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). His testimony, by itself, could not, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The record instead needed to contain service records or other corroborative evidence substantiating or verifying his testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD did not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997). That is to say, proof of the actual occurrence of a claimed stressor could not consist solely of after-the-fact medical nexus evidence. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). Just because a physician or other health professional accepted appellant's description of his or her experiences as credible and diagnosed appellant as suffering from PTSD did not mean the Board, in turn, was required to grant service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board was not required to accept an appellant's uncorroborated account of his or her active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). All of that said, however, a stressor need not have been corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). See, too, Pentecost v. Principi, 16 Vet. App. 124 (2002). Moreover, rather recently, as of July 13, 2010, VA amended its rules for adjudicating disability compensation claims for PTSD contained at 38 C.F.R. § 3.304(f) to relax the evidentiary standard for establishing the required in-service stressor in certain cases. See 75 Fed. Reg. 39843 (July 13, 2010). This revision adds to the types of claims that VA will accept through credible lay testimony, alone, as being sufficient to establish the occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. VA's specific PTSD regulation, § 3.304(f), previously only authorized VA to accept statements from Veterans who served in combat, as denoted by combat-related awards or decorations or other evidence sufficient to establish participation in combat, as sufficient to accept the occurrence of the claimed in-service stressor. VA later amended its PTSD regulations to also accept the statements of Veterans who are former prisoners-of-war (POWs) and those with an in-service diagnosis of PTSD as sufficient to establish occurrence of an in-service stressor if they are consistent with the places, types, and circumstances of service. Still another amendment was to relax the type and amount of evidence needed to substantiate a claim that is predicated on personal or sexual assault. Indeed, in these latter type claims, there is an exception to the rule announced in Moreau, permitting after-the-fact medical nexus evidence to etiologically link a PTSD diagnosis to an incident during the Veteran's military service. See YR v. West, 11 Vet. App. 393, 399 (1998) and Patton v. West, 12 Vet. App. 272, 279-280 (1999). The Board also is required to consider evidence of behavior changes, etc., as credible indications a claimed personal or sexual assault stressor occurred. The primary result of the most recent amendment of 38 CFR § 3.304(f)(3) is the elimination of the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The new regulatory provision requires that: (1) a VA psychiatrist or psychologist, or contract equivalent, confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. This regulation amendment, however, has no impact on PTSD stressors experienced during combat (38 C.F.R. § 3.304(f)(2)) or while interned as a POW (subpart (f)(4)), or as the result of personal/sexual assault (subpart (f)(5)). There equally is no application to cases where there was a diagnosis of PTSD during service (subpart (f)(1)). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, there are exceptions to this general rule. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumption period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97 (1997). So medical evidence is not always or categorically required when the determinative issue involves either medical etiology or diagnosis, but rather such issue may, depending on the facts of the case, be established by competent lay evidence under 38 U.S.C. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, i.e., about evenly balanced for and against the claim, with the Veteran prevailing in either event. Conversely, the claim must be denied if the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All reasonable doubt concerning any issue material to the determination is resolved in his favor. 38 CFR § 3.102. Turning now to the facts of this particular case. There is no disputing the Veteran has the required diagnosis of an acquired psychiatric disorder, including mood and adjustment disorders, depression, and PTSD, as documented in a January 2007 VA treatment record. So the question then becomes whether any or all of these diagnoses are the result of his military service and, especially, the incidents alleged. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See also Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The determination as to whether these requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). And here, unfortunately, there simply is no probative (meaning credible and competent) evidence of record establishing the required correlation between any of these current psychiatric diagnoses and the events the Veteran says occurred during his military service. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In statements he submitted in July 2006, the Veteran alleged that the first stressful incident in question occurred in May 2004 while he was stationed in Mosul, Iraq. He said his convoy was hit with an improvised explosive device (I.E.D.), killing a soldier in his convoy. The second stressor reportedly occurred shortly thereafter, in June 2004, when another unit convoy was attacked by a suicide bomber, killing one soldier and injuring another. The third and final claimed stressor reportedly occurred while he was working in a warehouse and operating a forklift, when he says a mortar exploded near him. The Veteran's military personnel records, including his DD Form 214, do not list any of the commendations or awards typically considered indicative or conclusive evidence of involvement in combat during service. See VA Adjudication Procedure Manual (M21-1), at Part VI, Change 112, para 11.37(b)(1) (March 10, 2004). 38 U.S.C.A. § 1154(b), and the implementing VA regulation 38 C.F.R. § 3.304(d) and (f), require that he have actually participated in combat with the enemy - meaning participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply if he only served in a general "combat area" or "combat zone" but did not himself engage in combat with the enemy. See VAOGCPREC 12-99 (Oct. 18, 1999). So there is looming uncertainty over whether he engaged in combat, as alleged, which, if he did not, precludes application of 38 C.F.R. § 3.304(f)(2). In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of a claimed disability, including during service, even where not corroborated by contemporaneous medical evidence such as treatment records (STRs, etc.). But the Federal Circuit Court went on to also hold in Buchanan that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. And for non-combat Veterans providing non-medical related lay testimony regarding an event during service, Buchanan is distinguishable; the lack of documentation in the service records must be weighed against the Veteran's statements. So, here, even considering alternatively the potential application of the revised subpart (f)(3) - to the extent the Veteran may have had the type of "fear of hostile military or terrorist activity" contemplated by this most recent revision to 38 C.F.R. § 3.304, the Board must point out that his claimed proximity to the two incidents involving the deaths of fellow soldiers while in the convoys is not supported by other evidence in the file. The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In particular, a June 2007 letter from Sgt. S.S. indicates the Veteran was not assigned to any convoy missions during his time in Iraq. So he has not provided credible testimony concerning this purported service, including insofar as the events that supposedly occurred. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). See also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (indicating the Board must make an express credibility finding regarding lay evidence). A Veteran is competent to report what occurred in service because testimony regarding firsthand knowledge of a factual matter is competent. See Washington v. Nicholson, 19 Vet. App. 363 (2005). But, as explained, his lay testimony also has to be credible, not just competent, to ultimately have probative value, and these inconsistencies between his lay testimony and this evidence undermine his credibility. A Department of Defense (DoD) Army Casualty list dated in May 2004 confirms the death of a soldier in a convoy as a result of an IED explosion. Similarly, a statement from Fallen Heroes of Operation Iraqi Freedom confirms this soldier's death. But Sgt. S.S. clarifies that, while a soldier was killed in the suicide bomber attack, as described in the second incident, he similarly was not assigned to the convoy. Sgt. S.S. further clarifies that, although there were mortar explosions in the warehouse as the Veteran described, the mortars landed at a great distance from the forklift and there were no shrapnel fragments in its vicinity. Sgt. S.S. also states the Veteran had left the warehouse in search of cover and a second mortar hit the forklift. And even accepting these claimed events occurred, at least in some measure (though perhaps not exactly as the Veteran has alleged), it still has not been established that he has any psychiatric disorder as a consequence, including PTSD. In attempting to determine the etiology of his acquired psychiatric disorders, and specifically any possible relationship or correlation between these disorders and the events he alleges occurred during his military service, the RO twice attempted to have the Veteran undergo a VA compensation examination for a medical nexus opinion. The scheduling of these VA compensation examinations, incidentally, would not have been required had the RO not accepted as credible at least a portion of his lay testimony concerning these alleged incidents. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). But he failed to report for both of these scheduled VA compensation examinations. And, as explained, the new regulatory provision 38 C.F.R. § 3.304(f)(3) requires that: (1) a VA psychiatrist or psychologist, or contract equivalent, confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. As a result of his failure to report for these two VA compensation examinations, he does not have this required confirmation of the necessary linkage between his PTSD diagnosis and the events in service, again, even assuming they occurred as alleged even to some limited extent. His prior VA compensation examination in March 2006, as mentioned, did not result in a diagnosis of any psychiatric disorders, including PTSD. It therefore was unnecessary for that VA compensation examiner to render a medical nexus opinion because there were no diagnosed mental disorders to attribute to the Veteran's military service. There equally are no additional sources of evidence providing this necessary after-the-fact confirmation of this purported linkage between any of the psychiatric disorders since diagnosed and the Veteran's military service. The only medical evidence of record possibly addressing this determinative issue of causation is his VA treatment records from January 2005 to August 2008. And although the January 2007 record, in particular, lists these several clinical diagnoses mentioned, these diagnoses were based on the Veteran's self-reported symptoms and not, in turn, etiologically linked to the specifically claimed events during his military service - at least to the events that have been shown to actually have occurred as alleged. The finding of a mental health care provider as to the occurrence of a claimed stressor is undercut when, as here, questions abound as to whether the claimed event actually occurred as alleged. See again Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996); Cohen v. Brown, 10 Vet. App. 128 (1997). The January 2007 diagnosis of PTSD was based on the first two stressful incidents alleged involving the deaths of fellow soldiers, as opposed to the mortar attack that has been verified, and there is no evidence of record placing the Veteran in the immediate vicinity when those claimed events are said to have occurred. In fact, to the contrary, Sgt. S.S. clarified the Veteran was not there at all. Generally speaking, the mere fact that the Veteran was stationed with a unit that was present while those enemy attacks occurred strongly suggests that he was, in fact, exposed to those attacks. See Pentecost v. Principi, 16 Vet. App. 124 (2002) (base subjected to rocket attacks during time the Veteran was stationed at the base). In other words, his presence with the unit at the time those attacks occurred tends to corroborate his statement that he experienced those attacks personally. But this is not the case when, as here, there is other evidence in the file from Sgt. S.S. expressly refuting this notion. So when all is said and done, there simply is no competent and credible (so no probative) medical or other evidence of record etiologically linking the Veteran's current acquired psychiatric disorders to his military service and, again, specifically to the claimed incidents. Unfortunately, for the reasons and bases already discussed, despite at least two attempts to have him undergo additional VA compensation examinations, he failed to appear for his evaluations, even after notifying the RO of a new address and the RO rescheduling his examination as a consequence. So, as an unfortunate consequence, there simply is no competent and credible medical or other evidence in the file of the required nexus or relationship between the time he spent in service and his current psychiatric disorders. Jones v. Brown, 7 Vet. App. 134, 137 (1994). See also Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). The file contains additional lay statements from several others, including his wife and two fellow soldiers who served with him. But these statements primarily serve to reaffirm that he suffers from various mental disorders, as previously diagnosed, a fact the Board is not contesting. The more determinative issue is whether these disorders are traceable to the specific events alleged to have occurred during his military service, and it is regarding this equally critical issue that the evidence is far less supportive of his claim insofar as establishing the actual occurrence of these claimed events. Accordingly, the Board finds that the preponderance of the evidence is against the claim. So there is no reasonable doubt to resolve in his favor, and his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The claim for service connection for an acquired psychiatric disorder is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs