Citation Nr: 1300418 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-09 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a previously denied service-connection claim for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from November 1961 to September 1965. This matter is before the Board of Veterans' Appeals (the Board) on appeal of an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Procedural history The Veteran first filed a service-connection claim for PTSD with VA in May 1993, which the RO subsequently denied in an unappealed April 1994 rating decision. The RO has denied the Veteran's subsequent requests to reopen this PTSD claim on multiple occasions since April 1994. Ultimately, the Board denied the Veteran's last request to reopen in an unappealed July 2004 decision. In May 2007, the Veteran submitted another request to reopen his previously denied service-connection claim for PTSD. The RO denied this request in the above-referenced October 2007 rating decision. The Veteran disagreed with the RO's determination, and perfected an appeal as to that issue. The Veteran testified at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge at the St. Petersburg RO in August 2010. A transcript of the hearing has been associated with the Veteran's VA claims folder. During this hearing, the Veteran submitted additional evidence directly to the Board, accompanied by a waiver of initial consideration by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2012). Clarification of issues on appeal As will be discussed in detail below, the Board is reopening the Veteran's PTSD claim herein. Although the Veteran originally developed his service-connection claim for PTSD alone, the Board is expanding the issue to include consideration of whether the Veteran is entitled to service connection for any acquired psychiatric disability. Indeed, the United States Court of Appeals for Veterans Claims (the Court) has determined that a PTSD claim cannot be limited to a PTSD diagnosis alone, but "must rather be considered a claim for any mental disorder that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record demonstrates that the Veteran has been diagnosed not only with PTSD, but also depressive disorder, generalized anxiety disorder and alcohol dependence. The Board is therefore reopening and expanding the issue on appeal at this time, and will consider whether service connection may be awarded for any acquired psychiatric disability to include PTSD, as instructed by the Court in Clemons. FINDINGS OF FACT 1. In July 2004, the Board denied the Veteran's request to reopen his previously-denied service-connection claim for PTSD. The Veteran did not appeal this decision. 2. The evidence associated with the claims folder subsequent to the Board's July 2004 decision has not been previously submitted to agency decisionmakers, and when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service-connection for PTSD. 3. The evidence of record is against a finding that the Veteran engaged in combat, or served in or around Vietnam during the Vietnam War. 4. There is no credible supporting evidence of an in-service stressor. 5. The evidence of record is against a finding that the Veteran has a current acquired psychiatric disability, to include PTSD, that is related to his active duty military service. CONCLUSIONS OF LAW 1. The Board's July 2004 decision which denied the Veteran's request to reopen his service-connection claim for PTSD is final. 38 C.F.R. § 20.1100 (2012). 2. Since the Board's July 2004 decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for PTSD. Therefore, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. An acquired psychiatric disability, to include PTSD, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (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 v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided the Veteran with notice under the VCAA and Dingess regarding his PTSD claim in a letter dated in July 2007, to include notice of the evidentiary requirements to substantiate a service-connection claim for any psychological disorder generally [see the July 2007 VCAA letter, page 9], and examples of evidence the Veteran may submit that could corroborate his claimed PTSD stressors in particular. Although this notice letter did not advise the Veteran of the bases for the previous denial of his claim as is required by Kent v. Nicholson, 20 Vet. App. 1 (2006), the Board is reopening the claim herein. As such, the Veteran is not prejudiced by any inadequacy in Kent notice. In October 2007, the RO adjudicated the Veteran's PTSD claim in the first instance, and the Veteran filed a timely appeal as to the RO's determination. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to this claim. Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, service personnel records, post-service VA treatment records [to include from VA medical facilities in Lyons, NJ, Hampton, VA, Martinsburg, WV, and Augusta, Georgia], his lay statements of argument, and records form the Social Security Administration (SSA) have been obtained. The Veteran has not identified any outstanding evidence, to include any other medical records, that are available and could be obtained to substantiate his claim. Indeed, at the August 2010 hearing, the Veteran noted that he only receives medication for his mental health disability, and no longer reports for therapy. See the August 2010 hearing transcript, pages 5, 11 and 12. The Veteran's representative also reviewed the Veteran's claims file in July 2009 and indicated that the claim was ready to certify to the Board. See the Veteran's representative's July 2009 Pre-Certification Review. Although the Veteran's service treatment records and personnel records are of record and appear to be complete, the Veteran has at times during the appeal suggested that some of his service treatment records are missing. He has based this assertion solely on correspondence he received from VA dated December 24, 1992, which he claims states that some of his medical records are lost. See the December 2008 RO hearing transcript, page 17. The Board has reviewed this December 1992 letter, which was sent to the Veteran immediately upon filing his first compensation claim with VA. The letter specifically states that "[b]ecause of the long period of time that has elapsed since your discharge from military service, your service medical records may be difficult if not impossible to obtain. Therefore, it will be necessary for you to submit additional evidence to support your claim in the event that we are unable to obtain these records." See the December 24, 1992 letter to the Veteran from VA [Emphasis added by the Board]. This letter in no way suggests that any portion of the Veteran's service records were actually lost or missing. Rather, the letter merely served to inform the Veteran that it was possible his records would be unavailable, and advised him to submit any additional evidence he may have in support of his claim. As noted above, the Veteran's complete service medical and personnel records were requested and obtained by VA, and are currently associated with his VA claims folder. The Veteran has been amply informed of the type of evidence or information that could be helpful in verifying his stressors in the above-referenced July 2007 VCAA letter, and in numerous prior letters and VA adjudications, and he has had the opportunity to submit any evidence in his own possession that may support his claim. In light of the fact that the Veteran has not provided any corroborating evidence other than his own statements of recollection as to either of his claimed stressors discussed below, coupled with the Board's current finding that the Veteran's stressor statements are in fact, not credible, the Board believes that any further efforts taken on the Veteran's behalf to verify his claimed in-service stressors, to include obtaining deck logs, would amount to exercises in futility. Indeed, VA will make attempts to obtain records in the custody of a Federal department until it is determined that the records do not exist, or that further efforts would be futile. 38 C.F.R. § 3.159(c)(2). So it is in this case. The Board observes that the Veteran was afforded a VA mental health examination in June 1998, at which time he was diagnosed with "Post-Traumatic Stress Disorder, combat-related." See the June 1998 VA examiner's report, page 3. Since the Veteran filed his request to reopen his service-connection claim in May 2007, VA has not scheduled the Veteran for another VA examination. Indeed, in the absence of new and material evidence of record, this duty to assist a veteran through the scheduling of a VA examination or obtaining a medical opinion is not triggered. See 38 C.F.R. § 3.159(c)(4)(C)(iii). As alluded to above, the Veteran has in fact submitted new and material evidence sufficient to reopen his PTSD claim, and the Board is reopening and expanding the claim herein. The Board is aware of the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), which held that an examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In this case, a medical examination or opinion addressing the etiology of the Veteran's claimed acquired psychiatric disability or disabilities, to include PTSD, is unnecessary. As discussed in more detail below, the evidence of record is against a finding that the Veteran experienced any of his claimed in-service stressors, to include any stated to have occurred just off the shores of Vietnam or during boot camp. Indeed, the Veteran has provided non-specific and contradictory information about the circumstances of his service that cannot be used to verify his claimed stressors. Further, there is no other credible evidence of record demonstrating that the Veteran complained of, sought treatment for, or was diagnosed with any mental health condition in service or for years thereafter, and the Veteran's lay assertions that he has experienced a continuity of symptoms since service are also deemed to be not credible. As there is no credible evidence that the Veteran experienced an in-service "event, injury or disease" as required by McLendon element (2) to support his service-connection claim for an acquired psychiatric disability, a remand to afford the Veteran a mental health examination is not necessary. See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) [finding that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service]. Finally, with respect to the Veteran's April 2011 hearing, the Court held in Bryant v. Shinseki, 23, Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)( 2) requires that the RO official or Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the August 2010 hearing, the presiding VLJ fully complied with these requirements, clearly indicating to the Veteran why his previous claim was denied [lack of corroborated stressors], and eliciting testimony to flesh out information about the Veteran's claimed stressors. See the August 2010 hearing transcript, pages 14 and 15. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's acquired psychiatric disability claim has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the issues on appeal were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2012). He has retained the services of a representative, and testified before the undersigned in August 2010. Claim to reopen Legal criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). In general, VA rating decisions or Board decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.1100, 20.1103 (2012). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2012). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of her claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has recently stated that the language of VA regulations does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. See Shade v. Shinseki, 24 Vet. App 110 (2011). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis The question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding any favorable decision as to this matter which may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) [before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant]. The RO denied the Veteran's original service-connection claim for PTSD in an unappealed rating decision dated in April 1994 . The Board subsequently denied the Veteran's last request to reopen his claim in a July 2004 decision. The Veteran did not appeal this denial, and it became final. See 38 C.F.R. § 20.1100 (2012). In essence, the Board denied the Veteran's claim based on a finding that the record contained no new and material evidence corroborating the Veteran's claimed in-service stressor. At the time, the Veteran's only claimed stressor involved witnessing fellow soldiers sustain an attack just off the Vietnam shore in 1963 or 1964. Since the Board's July 2004 decision, the Veteran has alleged for the first time that his in-service stressors included not only this combat-related trauma, but also trauma associated with an in-service sexual assault. See the Veteran's August 2007 Statement in Support of Claim. The Board finds that the Veteran's August 2007 identification of a second in-service stressor based on in-service sexual assault constitutes new and material evidence as to the previously denied issue on appeal. Such an account was not of record prior to the last final denial of the Veteran's PTSD claim in July 2004, and relates to an unestablished fact necessary to substantiate that claim. As noted above, the credibility of the Veteran's lay statements, although not their weight, is presumed for the narrow purpose of determining whether sufficient evidence has been submitted to reopen the previously disallowed claim for service connection. See Justus, supra. Accordingly, there is sufficient new and material evidence to reopen the Veteran's claim of entitlement to service connection for PTSD. See 38 C.F.R. § 3.156 (2012). As noted above, the Board has expanded the issue to include consideration of any acquired psychiatric disability. The Board wishes to make clear that although there may be of record new and material evidence sufficient to reopen the Veteran's service-connection claim, this does not mean that the claim must be allowed based on such evidence. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. Bernard considerations 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, the Board 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. In the present case, the RO has in fact considered the Veteran's PTSD service-connection claim on a de novo basis, and the Veteran's presentation has not been limited to the matter of submission of new and material evidence. Further, with respect to the now-expanded claim of entitlement to service-connection for any acquired psychiatric disability, as discussed above, the Veteran has been amply apprised of what is required to establish service connection for PTSD and "any other psychological disorder" [see the July 2007 VCAA letter, page 9], and the Veteran has set forth his contentions as to why he believes that service connection should be granted on numerous occasions. Further, all relevant records have been associated with the claims folder. The Veteran testified before the Board in August 2010, and suggested that his disability may have been diagnosed not as PTSD, but as another disability in years past. See the August 2010 hearing transcript, page 11. Thus, there is no prejudice in the Board's consideration of this claim on the merits. Entitlement to service connection for an acquired psychiatric disability, to include PTSD Legal criteria In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012). See also Cohen v. Brown, 10 Vet. App. 128 (1997). 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). If the evidence establishes the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided 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. 38 C.F.R. § 3.304(f)(2); see also 38 U.S.C.A. § 1154(b). The regulations pertaining to PTSD were recently amended, and 38 C.F.R. §3.304(f)(3) no longer requires the verification of an in-service stressor if the Veteran was in a location involving "fear of hostile military or terrorist activity." Rather, lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations. The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must 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. Id. The liberalizing criteria contained in the new § 3.304(f)(3) will be applied to PTSD service connection claims that are pending as of the effective date of the regulation [July 13, 2010] as in this case, and to claims filed on or after this effective date. Where a PTSD claim is based on an in-service personal assault, credible supporting evidence that the claimed stressor actually occurred is still required. Significantly however, evidence from sources other than the Veteran's service records may corroborate the account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5); see also Patton v. West, 12 Vet. App. 272 (1999). VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(5). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In essence, the Veteran contends that he currently has an acquired psychiatric disability, to include PTSD, as a result of stressful combat-related experiences occurring off the coast of Vietnam, and as a result of an in-service personal assault occurring during boot camp. It is undisputed that the Veteran has been diagnosed with PTSD, as well as with other mental health disabilities, to include alcohol dependence, depressive disorder and generalized anxiety. See, e.g., the Veteran's March 20, 2003 VA Attending Progress Note from Dr. G.W.B.; see also the Veteran's July 23, 1993 VA Progress Note from Dr. R.H.K. Thus, current mental health disability including PTSD is demonstrated by the medical evidence of record, and element (1) of both the Shedden test and 38 C.F.R. § 3.304(f), outlined respectively above, is indeed satisfied. Moving next to the Veteran's claimed in-service injuries, the Veteran has essentially described two different stressor experiences which he believes caused him to develop his current mental health problems, one combat-related and one based on an alleged in-service sexual assault. He states that his combat-related stressor occurred during active service on board the USS Talladega in 1964. He recalls that after the USS Talladega departed from Taiwan on route to Okinawa, it sailed into the South China Sea off the coast of Vietnam. He claims that from the deck of the USS Talladega, he witnessed an armored personnel carrier take enemy fire and explode, killing a number of marines. See the Veteran's October 9, 2002 VA Form 9; see also the December 2008 RO hearing transcript, pages 6-9, and the August 2010 hearing transcript, page 9-10, 14-15. He also claims he received treatment for anxiety and was prescribed medication at Camp Pendleton subsequent to this event in 1964 or 1965. See the December 2008 RO hearing transcript, pages 7, 10 and 12 [indicating that he returned to Camp Pendleton after the above-described incident, and received medication for being withdrawn and antisocial during service between 1964 and 1965]. The Veteran is certainly competent to attest to his own observable symptoms and in-service experiences. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court of Appeals for Veterans Claims has made clear that the Board cannot determine that competent lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran has competently described witnessing a combat-related stressor, and then receiving in-service treatment for withdrawn and antisocial symptoms at Camp Pendleton prior to his separation from active duty service that is not documented in his service treatment records. Crucially however, as will be discussed below, the Veteran's service records contain information that specifically contradicts his current assertions that he received in-service treatment for mental health symptomatology. In fact, his service records fail to demonstrate that the Veteran served in or around Vietnam at any time during his active duty service, and the Veteran himself has provided various inconsistent accounts of this in-service combat related incident and mental health treatment history. Thus, the Board finds that the Veteran's current contention that he witnessed a combat-related event off the coast of Vietnam and subsequently received in-service treatment and medication for mental problems having to do with this stressor to be not credible. The Board initially notes that the Veteran's service treatment records include no notation indicating that the Veteran ever complained of or sought treatment for any mental health symptomatology during his period of active duty service. Instead, as noted above, the Veteran's service medical records contain information that directly contradicts the Veteran's current assertion that he experienced such problems in service. Indeed, the Veteran's psychiatric evaluation was "normal" upon separation from service in September 1965. See the Veteran's September 7, 1965 Report of Medical Examination. Further, and more significantly, on his own September 1965 Report of Medical History the Veteran specifically denied experiencing frequent trouble sleeping, frequent or terrifying nightmares, depression or excess worry, loss of memory or amnesia, bed wetting, nervous trouble of any sort, and any excessive drinking habit at any time during his period of active service See the Veteran's September 9, 1965 Report of Medical History, page 2. Over twenty-five years later, upon discharge from a VA hospital in 1991, the Veteran again denied experiencing any prior psychiatric problems or treatment other than having participated in an alcohol rehabilitation program in 1986. See the Veteran's November 4, 1991 VA hospital discharge summary. It was not until he started receiving regular psychiatric treatment in early 1993 when he began discussing experiencing an in-service trauma in Vietnam with PTSD symptoms. See the Veteran's February 22, 1993 VA Progress Note. Concerning the Veteran's claimed in-service combat stressor, the Board notes that the Veteran's service personnel records do in fact show that the Veteran served as a bulk fuel man on the USS Talladega in February and March 1964 [departing from Okinawa, Japan on February 25, 1964 and arriving at Red Beach, Taiwan on March 4, 1964, and departing Red Beach, Taiwan on March 12, 1964, returning to Okinawa on March 14, 1964]. See the Veteran's Sea and Air Travel Embarkation Slips and his Record of Service. Crucially however, these records do not indicate that the USS Talladega diverted from its route at any time during these two maneuvers to partake in any combat-related operations hundreds of miles away in the South China Sea off the coast of Vietnam. In fact, the Veteran's service medical and personnel records include no notation that the Veteran ever served in Vietnam, or that he or his ship was involved in any combat operations during his period of active duty service. He was not awarded any combat awards, or any other award indicative of Vietnam service, to include the Vietnam Service Medal or the Vietnam Campaign Medal. In addition, the Board finds the Veteran's assertions that he witnessed combat-related stressors off the coast of Vietnam to be not credible because he himself specifically denied experiencing in-service combat stressors to treating physicians in November 1991, upon discharge from his above-referenced hospitalization. See the Veteran's November 4, 1991 VA hospital discharge summary, page 2 [identifying a history of one tour in Vietnam, "noncombat"]. The Board does not concede that the Veteran served in Vietnam at any time, but does find it highly relevant that at one point, in describing his claimed Vietnam service to a treating physician, the Veteran indicated that such service did not include combat experience. As noted in the Introduction above, the Veteran originally filed a service-connection claim for PTSD in 1993, which the RO denied in April 1994. During the long period of time within which the Veteran has attempted to have this claim reopened since 1994, he has supplied inconsistent accounts as to the circumstances of his claimed in-service combat stressor which further undermine his credibility. Indeed, in May 1993, the Veteran reported that he served on temporary duty assignments in Vietnam while stationed in Okinawa in 1964, but was "unable to recall specific traumas." He showed a picture of himself with three friends who he claimed died, but he had "blocked out the incident." See the Veteran's May 3, 1993 VA Consultation Sheet. In a subsequent statement received on May 28, 1996, the Veteran provided more details, indicating that he served on board a Navy landing ship "LST-D" where he saw two of his friends "blown and burnt up while trying to go ashore" on an amphibious personnel carrier. Later, in an April 3, 1998 statement, the Veteran asserted that in December 1963, "three of [his] buddies were blown up in a landing vehicle," and while bringing fuel hoses to shore he saw many dead bodies of American and Vietnamese soldiers. He also submitted a photo of these three friends with this statement. In a statement received on May 16, 2000, the Veteran specified that he was onboard an anchored LST in South Vietnam when he saw fire in the water and a number of marines dismembered and burned. The Veteran clarified that the "friends" he previously saw killed were "not 'friends' in the sense that I knew their names," but merely fellow marines. It was not until October 2002 when the Veteran clarified that he was watching this explosion from the deck of the "USS Talladega APA 208" on route from Taiwan. See the Veteran's October 2002 VA Form 9. Although the Veteran has at times indicated that he did not recall why the explosion he witnessed occurred, he did note at his August 2010 hearing that his ship was actually under heavy enemy fire. See the August 2010 hearing transcript, page 10. At his December 2008 RO hearing, the Veteran added that his ship was actually one of what appeared to be 50 ships involved in the incident. See the December 2008 RO hearing transcript, page 9. As demonstrated above, the Veteran has provided varied and inconsistent accounts as to the circumstances of his claimed combat-related Vietnam stressor, first admitting that he had no combat experiences in November 1991, and ultimately recalling participation in a 50 ship combat operation in the South China Sea in December 2008. Although the Veteran's stressor statements have ultimately become specific enough to identify his ship [the USS Talladega], and his route [from Taiwan to Okinawa], and although the Veteran's service personnel records confirm service on the USS Talladega on that route, they also demonstrate that the USS Talladega made this trip in only two days, embarking on March 12, 1964 and disembarking on March 14, 1964. The Board finds it wholly improbable that over the span of two days, the USS Talladega was able to travel hundreds of miles south of Taiwan into the South China Sea to the Vietnam coast, participate in a 50 ship combat operation, and return to Japan by March 14. In the same vein, even if this detour to Vietnam occurred during the USS Talladega's prior trip from Okinawa to Taiwan, such would have had to occurred in the span of 9 days, from February 25, 1964 to March 4, 1964, including a leap year day. Based on the facial implausibility of these maneuvers, coupled with the Veteran's own prior admission that he had noncombat service while on active duty, the Board believes that any further development, to include requesting the USS Talladega's deck logs from February and March 1964, would not yield any relevant information supportive of the Veteran's stressor statements, as the Veteran has so suggested on his October 2002 VA Form 9 and in a January 2003 Appellate Brief. The Veteran has not submitted any other evidence that could corroborate combat service in Vietnam at any time, to include lay statements of fellow servicemembers or family members. In light of his the Veteran's prior inconsistent statements to medical professionals [both in-service and post-service] and to VA concerning his history of mental health symptoms described above, his own admissions in 1991 that he experienced no combat during service and had no mental health problems or treatment prior to 1986, the variations in his claimed combat-related stressor history as VA has adjudicated his claim over the past two decades, his unsupportive service personnel records showing only sea service in Taiwan and Okinawa, Japan, and the fact that the Veteran was awarded no medals demonstrating service in Vietnam or in combat, the Board finds the Veteran to be an unreliable historian, and in turn finds no credible evidence of record demonstrating that the Veteran served in or around the Republic of Vietnam at any point during his period of active duty service. See Caluza v. Brown, 7 Vet. App. 498 (1995) [in determining whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of a veteran]; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. The Board adds that on one occasion in May 1993 in the Veteran stated to a VA physician that he observed a marine behead a Vietnamese person during active service. See the Veteran's May 28, 1993 VA Progress Note. As above, the Veteran has not provided any supporting evidence corroborating this incident, and he did not mention it again to any treating physician or to VA at any time in the last 19 years. The Board has already determined that the Veteran is an unreliable historian, and that the evidence of record is against a finding that the Veteran served at any time in Vietnam. As such, the Board does not find his account of this in-service stressor credible either. In this connection, because the evidence of record supports a finding that the Veteran had no Vietnam service, no combat service, nor has he ever served in a location involving "fear of hostile military or terrorist activity," the liberalizing criteria contained in the new § 3.304(f)(3), and the combat presumptions outlined in 38 C.F.R. § 3.304(f)(2) are not applicable in this case. The Veteran's lay assertions that he observed wounded soldiers and received combat fire during service, in and of themselves, do not establish the occurrence of an in-service stressor. As noted above, the Veteran has also claimed that his current acquired psychiatric disability, to include PTSD, is due to an in-service sexual assault. The Veteran asserts that while in boot camp at Parris Island, a drill instructor ordered him to perform a sexual act, which he did not do. Since that time, he claims has had problems with authority and continuing mental health disability symptomatology. As above, the Veteran has submitted no evidence other than his own lay assertions to corroborate his claimed in-service personal assault stressor. The Veteran was advised in the above-referenced July 2007 VCAA letter that evidence from sources other than his own service records, or evidence of behavior changes may constitute credible supporting evidence of the stressor. The letter provided specific examples of such evidence, and the Veteran was afforded the opportunity to furnish this type of evidence to VA, or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(5). The Veteran's service personnel records demonstrate that the Veteran was stationed at Parris Island, South Carolina for basic training in 1961. There is no indication that any he exhibited any immediate behavioral change following this period of training. The Veteran was promoted to Lance Corporal in July 1963. Although the Veteran was demoted in April 1964 back to a Private First Class due to being absent without leave (AWOL) a few hours on two different days, it appears that he passed promotion tests to Lance Corporal in February and June 1965 before his separation from service. See the Veteran's Promotions and Reductions, Administrative Remarks and Offenses and Punishments. He was discharged in September 1965 for college enrollment. See the Veteran's September 7, 1965 Endorsement. His September 1965 discharge certificate pertinently included the following notation: "The enclosed discharge certificate is furnished as a fitting testimonial of service with honor. It bears witness to the fact that you have served your country and Corps with a record of proficient and industrious performance of duty." As noted above, although the Veteran contends he sought treatment for mental health syptomatology in service, he specifically denied experiencing problems such as depression, anxiety and nervousness upon separation from service, and was given a "normal" psychiatric clinical evaluation. In 1991, he denied experiencing psychiatric problems other than alcohol dependency, and denied any treatment prior to 1986. See the Veteran's November 4, 1991 VA hospital discharge summary. Significantly, the Veteran specifically denied "any history of physical or sexual abuse" at his November 1991 VA hospital discharge, and again upon discharge from the VA hospital in Lyons, NJ on September 23, 1994. Indeed, although the Veteran has pursued service-connection for PTSD claim with VA since 1993, the Veteran did not mention any account of any in-service assault prior to the date of his claim to reopen in May 2007. While the Veteran is competent to attest to his in-service experiences and observable symptoms, in light of the evidence discussed immediately above, to include the Veteran's own statements to VA physicians for treatment purposes years ago indicating he never experienced any physical or sexual trauma, and his more recent statements to the contrary to VA in support of his claim for monetary benefits, the Board finds the Veteran's assertions that he was sexually assaulted by a drill instructor during boot camp to be not credible. The Veteran has not submitted any corroborating evidence to include statements from family members, roommates, fellow service members, or clergy, or evidence demonstrating an immediate change in behavior during service. The Board in no way doubts that the Veteran's representative is convinced that the Veteran's description of sexual trauma and symptoms of PTSD have been "consistent and unwavering" since they met over two years ago. The Board however finds that the Veteran's current lay testimony conflicts with testimony he presented to VA treating physicians approximately 20 years ago, and the Veteran has not "told the same story consistently for over 20 years" as his representative so suggests. See the Veteran's representative's August 2010 Statement in Support of Claim. The Board accordingly finds that the Veteran's claimed in-service stressors are not verified. Element (2) of 38 C.F.R. § 3.304(f) is unsatisfied, and the Veteran's claim for PTSD fails on this basis. With respect to the Veteran's service-connection claim for any other psychiatric disability, as discussed above and contrary to the Veteran's current contentions, the Veteran did not complain of, or receive treatment for any mental health symptomatology during his period of active duty service or for years thereafter. Although the Veteran subsequently reported an escalation in alcohol abuse during service in November 1991 [see the Veteran's November 4, 1991 VA hospital discharge summary], his contemporaneous service records demonstrate that he specifically denied an excessive drinking habit, or any other mental health disability symptoms upon separation from service, and was noted to have a "normal" psychiatric evaluation in 1965. In 1991, he also denied any treatment prior to 1986, and it was not until 1993 when he first alleged he experienced in-service combat trauma. It was not until 2007 when he first alleged he experienced in-service sexual assault. For the reasons discussed in detail above, the Board finds that the Veteran's accounts of his in-service injuries and, in turn, his assertions that he has experienced continuous symptoms of mental health problems since his time in service to the present day to be not credible. As such, element (2), in-service disease or injury, is not satisfied, and the Veteran's expanded service-connection claim for any acquired psychiatric disability fails on this basis as well. For the sake of completion, with respect to nexus statements, the Board recognizes that multiple VA physicians have linked the Veteran's current mental health disabilities, to include PTSD, to his claimed in-service combat experience. In particular, the Veteran has specifically highlighted the opinion of Dr. G.W.B., who on March 20, 2003 VA indicated that the Veteran's PTSD symptoms stem from his experiences in the Marine Corps. Significantly, Dr. G.W.B. admitted that he could not confirm the Veteran's claimed in-service stressor. See the Veteran's March 20, 2003 VA Attending Progress Note of Dr. G.W.B. Indeed, the Veteran's in-service stressors are not corroborated, and his lay accounts of such in-service injuries are not credible. In so far as Dr. G.W.B.'s opinion and all other positive medical nexus opinions of record link the Veteran's current disability to the Veteran's claimed in-service traumas, such are afforded no probative value. The Board notes that although it may not disregard a medical opinion solely on the rationale that it was based on a history given by the Veteran, in evaluating medical opinion evidence, the Board may reject medical opinions that are based on facts provided by a veteran that have been found to be inaccurate, or because other facts present in the record contradict the facts provided by him that formed the basis for the opinion. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). So it is in this case. As there is no credible evidence of record linking a current PTSD diagnosis to a verified in-service stressor, and no credible evidence linking the Veteran's other current mental health disabilities to service, to include the Veteran's own assertions that he has experienced a continuity of symptoms since his separation in 1965, element (3) of both the Shedden test and 38 C.F.R. § 3.304(f), outlined respectively above, also remain unsatisfied. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not for application, and the benefit sought on appeal is denied. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for PTSD is reopened. Service connection for an acquired psychiatric disability, to include PTSD, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs