Citation Nr: 1306495 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 09-24 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to April 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for PTSD. This case was previously before the Board in December 2010, and again in April 2011, and was remanded on each occasion for additional development of the record and/or to ensure due process. As the requested actions have been accomplished, the case is again before the Board for appellate consideration. The Board notes the Veteran submitted a claim for service connection for PTSD in May 2008. In Clemons v. Shinseki, 23 Vet. App 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that an appellant's diagnoses which arise from the same symptoms for which he is seeking benefits, do not relate to entirely separate claims not yet filed by the appellant. Rather, these diagnoses should be considered to determine the nature of the appellant's current condition relative to the claim he did submit. Thus, the Board will consider any diagnosed psychiatric disability the Veteran has. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran does not have PTSD that can be causally linked to an event or incident in service. 2. An acquired psychiatric disability, if present, was initially manifested many years after service, and there is no competent evidence linking it to service. CONCLUSION OF LAW An acquired psychiatric disability, to include PTSD, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in May 2008 and September 2011. The claim was readjudicated in a January 2013 supplemental statement of the case. , 444 F.3d at 1333. VA also has a duty to assist the Veteran in the development of the claim. The claims folder contains the service treatment records, service personnel records, lay statements, information from the U.S. Joint Services Records Research Center (JSRRC), and the Veteran's testimony at a hearing before the undersigned. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest there is any additional outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. A VA examination was conducted in December 2012, and an opinion regarding the Veteran's psychiatric disability was obtained. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is adequate, as it is based on an examination of the record and a review of the claims folder. The opinion considered the pertinent evidence of record, to include statements of the Veteran regarding his symptoms. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evaluation, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The Board notes that on July 13, 2010, VA published a final rule that amended its adjudication regulation governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. The revisions add to the types of claims the 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. 38 C.F.R. § 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 establish the occurrence of the claimed in-service stressor. VA later amended 38 C.F.R. § 3.304(f) to also authorize VA to accept the statements of Veterans who are former prisoners-of-war, as well as those with an in-service diagnosis of PTSD, as sufficient to establish occurrence of an in-service stressor if such statements are consistent with the places, types, and circumstances of service. If a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist , or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances 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)(3). If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include evidence of behavior changes following the claimed assault. Examples of behavior changes that may constitute credible evidence of a stressor include deterioration in work performance and episodes of depression, panic attacks, or anxiety without an identifiable cause, or unexplained economic or social behavioral changes. 38 C.F.R. § 3.304(f)(5) also provides that VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. The Federal Circuit recently held that under 38 C.F.R. § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). As will be discussed, because the most probative evidence indicates the Veteran does not meet the diagnostic criteria for PTSD, the amended regulation does not impact this decision. The Veteran asserts service connection is warranted for an acquired psychiatric disability, to include PTSD. He states a good friend of his died in a parachuting accident in service, and that he witnessed it. The evidence supporting the Veteran's claim includes his statements and some of the findings of record. VA outpatient treatment records disclose the Veteran was seen in the mental health clinic in April 2008. He appeared distraught and had tears running down his cheeks as he told the examiner about an event that occurred in service. He stated that the image of his sergeant being killed in a jump accident is constantly on his mind. He described the incident, noting he was the first out of the plane. His sergeant jumped and his chute did not open. The Veteran related he was able to position himself under the sergeant and attempted to catch him. The other chute caught on his boots, and he reached to try to get hold of the chute. He claimed he had it in his hands, but could not hold it. He asserted he landed about 50 feet from where the sergeant landed. Several days later, the Veteran maintained he could not quit thinking about his major being killed, and that he could still hear him screaming all the way to the ground. The Veteran was seen for a psychiatric evaluation in May 2008. He again described the in-service accident in which his master sergeant was killed when his parachute got tangled up in a number of cords. It was stated that the Veteran's good friend was killed instantly, and his leg bones were driven up through his abdomen and through the top of his shoulders. The Veteran added he landed about 30 away, and has not been able to get that thought out of his mind since then. He related he has nightmares about it almost every night, and this has been going on ever since the event occurred. He had finally gotten to the point where he had agreed to try and seek help for it. The examiner indicated the Veteran broke down in tears as he was describing the event. He concluded the Veteran appeared to meet the criteria for PTSD, dating to his experience in service. In a statement received in February 2009, the Veteran related that in December 1963, he and his good friend, master sergeant W. were loaded on a C-130 for Operation Swift Strike. He again described the incident, noting that sergeant W.'s parachute did not open. In a statement dated January 2011, D.L., a counselor, related he served in the same squad as the Veteran. He maintained that in early December 1963, their company made a jump, and this was the day in which sergeant W.'s parachute had a major malfunction, which resulted in his death. He stated the Veteran was "freaked out" when he saw the sergeant. He claimed the Veteran was never the same and often cried in the night. The Veteran was hospitalized by the VA in February 2011. The assessments were major depressive disorder and PTSD. VA outpatient treatment records show the Veteran was seen by a social worker in March 2011. The examiner stated the Veteran's recounting of the events that took place when sergeant W. was killed had remained remarkably consistent over the four years he had been seeing the Veteran. He believed it was more likely than not that sergeant W. was killed with a malfunctioning parachute, despite the Veteran's efforts to save him. He opined the Veteran had PTSD as a result of this event. Statements were received from two individuals in June 2011. R.H. related he had known the Veteran for six years and had witnessed him having many flashbacks of a jump from a plane when sergeant W.'s chute did not open. R.A.G. noted he knew the Veteran for seven years and he told him stories of sergeant W. who fell to his death when his parachute did not open. He said he observed the Veteran display deep, depressed moods that were triggered by the in-service accident. Pursuant to the Board's remand, the Veteran was afforded a VA psychiatric examination in December 2012. The diagnosis was PTSD. It was indicated the Veteran did not have another diagnosis of a mental disorder. The examiner, who reviewed the claims folder, noted that the Veteran's descriptions of the in-service incident had been consistent over the years. During the examination, the Veteran described a post-service lift-threatening incident. He stated that he was attacked by two men in 1979 or 1980. They slit his throat, and he then killed both of them. He said he was not charged with a crime, because a bystander witnessed the attack and it was determined to be self-defense. The examiner noted the Veteran was calm when he described this assault, but whenever the parachute incident was mentioned, he became tearful, shaky, and very visibly distressed. He stated the death of the Veteran's sergeant was adequate to support the diagnosis of PTSD. Finally, the examiner commented that the Veteran experiences symptoms that meet the criteria for PTSD, and that the disorder is, more likely than not, related to the Veteran's alleged stressor of losing his sergeant in a parachuting accident in 1963. The evidence against the Veteran's claim includes the service treatment records, the post-service medical records and information from official sources relating to the Veteran's alleged stressor. Personnel records reflect the Veteran was stationed at Ft. Bragg from July 1963 to April 1965. His principal duty was rifleman. The discharge certificate shows he was awarded the parachutist badge. The service treatment records are negative for complaints or findings pertaining to any psychiatric disability. On a report of medical history in February 1965, the Veteran denied nightmares, trouble sleeping and nervous trouble. A psychiatric evaluation on the separation examination was normal. A psychiatric evaluation on a VA general medical examination in October 1983 revealed the Veteran was alert, oriented and cooperative. On VA general medical examination in August 1999, there was no evidence of psychosocial adjustment problems. VA outpatient treatment records show the Veteran was seen in February 2009. He related he had been informed by a widow of a man he served with that sergeant W. had died in December 1963. The examiner accompanied the Veteran to a meeting with his service officer. He noted as the Veteran was describing the accident, he became emotional, and gave great detail of the experience of watching his friend die. He commented the details had remained constant with other times he told the story. The Board notes, however, that on this occasion, the Veteran related that sergeant W. had jumped out of a different plane. When seen in February 2010, the Veteran asserted he was in a helicopter in service and had a hold of his commander and tried to pull him in, but was unable to do so and the commander fell to the ground. In June 2009, the Center for Unit Records Research (subsequently renamed the Joint Services Records Research Center (JSRRC)) indicated it had researched military casualty reports for 1963. It was noted the reports did not document that a Mr. W. died as a result of non-hostile action in 1963. It was further noted it did not maintain morning reports for the Veteran's unit, and they could be requested from the National Personnel Records Center to verify if Mr. W. had died as a result of a non-hostile action in December 1963. It was further stated that there might be a criminal investigation report files on the incident in which a Mr. W. died as a result of non-hostile action in December 1963 at Ft. Benning. The RO was directed to contact the United States Crime Records Center for documentation of this incident. By later dated June 2009, the RO contacted the United States Crimes Records Center, seeking information on the death of sergeant W. in a parachuting accident in December 1963. A response was received the following month stating that the records requested were outside the 40-year retention period for Army Crime Records. The Veteran submitted a September 2009 letter to him from a museum technician at the 82nd Airborne Division Museum, Fort Bragg. He had apparently requested information concerning Exercise Swift Strike. It was stated that during the exercise, there was only one jump fatality, and 20 jump injuries that were not fatal during the exercise. The information did not list names or units. The Board notes the references to the year in the letter appear to have been altered to reflect "1963." In November 2011, the JSRRC reported it was able to document that Operation Swift Strike occurred during the period from July to August 1963. The operation was a massive war game exercise involving over 100,000 military personnel, and it resulted in five soldiers dying in aircraft crashes, four in motor vehicle accidents, and three in drownings. There were no parachute accidents during the operation. It was also noted that a lieutenant W. (a different last name from the sergeant the Veteran has named) was one of the helicopter crash victims. It was indicated the reports did not document that a Mr. W. died as a result of non-hostile action in 1963. A November 2011 email from a museum technician of the 82nd Airborne Division Museum related that Operation Swift Strike was a major exercise that took place over several months and involved the 82nd Airborne and the 101st Airborne. It was noted there were no fatalities due to the airborne operation. It was also indicated the jump occurred in South Carolina, and not at Fort Bragg. By letter dated December 2012, the National Archives and Records Administration responded to a request from the VA for morning reports or daily journals. It was stated it had very few Army unit records during the period between the Korean and Vietnam wars, and the records consisted mostly of unit organizational histories and a few general orders. Morning reports were in the custody of the National Personnel Records Center. The issue of service connection for PTSD turns on whether the Veteran was exposed to a stressor. Despite the references in the record from medical providers to the effect that the Veteran's story of his stressor has remained constant, there are sufficient inconsistencies to question his credibility. Initially, the Board notes the Veteran has generally asserted that he witnessed the death of his sergeant in service. However, he stated in April 2008 that his friend who was killed was a major. In addition, the Veteran reported in May 2008 that sergeant W. jumped right after he did. Yet, he claimed in February 2009 that his sergeant had jumped from a different plane. The Veteran asserted in February 2009 that his sergeant had died while they were participating in Operation Swift Strike. However, information from the JSRRC establishes that this Operation took place from July to August 1963. Thus, it ended well before sergeant W. was alleged to have died during his Operation. In addition, contrary to the Veteran's allegations, the JSRRC researched military casualty reports for 1963 and there was no documentation of a Mr. W. having died in 1963 of non-hostile action. While there was some reference to a Mr. W. having died at Fort Benning, the Veteran has been adamant in claiming that the death occurred at Fort Bragg. The Board also notes the Veteran has maintained he has been unable to get this incident out of his mind since it occurred. He provided a statement from D.L. who stated the Veteran was never the same after the sergeant died. In this regard, however, it is significant to observe that the Veteran specifically denied any psychiatric problems, including nightmares and sleep problems, at the time of his separation from service. VA examinations in October 1983 and August 1999 did not find any psychiatric abnormalities. Finally, the Veteran's credibility is further undermined by the fact that he has described his sergeant as his good friend and someone who was "like a second dad to me." Yet, when asked by the undersigned at the hearing in March 2011, the Veteran was unable to provide sergeant W.'s first name. Thus, although VA medical providers have concluded the Veteran has PTSD, these have been predicated on a stressor that has not been verified. It is not within examiner's purview to establish the existence of a stressor. In the absence of such verification, these opinions are of limited probative value. In light of the numerous inconsistencies in his statements, the Veteran is not found to have presented credible lay assertions in this case. Although the Veteran is competent to report his symptoms, the Board does not find him to be credible in this regard as the contemporaneous findings in service demonstrated normal findings at the separation examination, without indication of any psychiatric difficulties. The Veteran maintains he has PTSD. As a lay person, the Veteran is not competent to diagnose, or render an opinion as to the cause or etiology, of PTSD as that requires medical expertise which he is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). With respect to the claim for service connection for a psychiatric disability other than PTSD, the Board notes the service treatment records are negative for complaints or findings pertaining to a psychiatric disorder. In fact, there is no indication for many years following service of any complaints or findings pertaining to a psychiatric disability. The record is devoid of any complaint or finding relative to a psychiatric disability for many years following service. Evidence of a prolonged period without medical complaint is for consideration. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000). While the fact that a psychiatric disorder was initially documented many years after service is not dispositive, it is crucial evidence and, combined with the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). In light of any indication of a psychiatric disability for so many years after service, the Board finds that the objective medical evidence of record outweighs the credibility of his reported onset and continuity of symptomatology. Such records are more reliable, in the Board's view, than the Veteran's unsupported and contradictory assertions of the onset of his symptomatology. See 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]; see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. The Board concludes, therefore, that the medical findings are of greater probative value than the Veteran's allegations regarding the existence of PTSD, as well as the relationship of any other acquired psychiatric disability to service. Accordingly, the Board finds the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disability, to include PTSD. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for an acquired psychiatric disability, to include PTSD, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs