Citation Nr: 1334341 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 08-00 010A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The appellant served on active duty from October 23, 1969 to December 16, 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In November 2011, the Board remanded the appellant's claim for additional development. The case is once again before the Board for appellate review. The Board notes that the appellant's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claim currently on appeal. FINDINGS OF FACT 1. The appellant did not engage in combat with the enemy, and there is no credible supporting evidence to corroborate his report of an in-service stressor upon which a diagnosis of PTSD was based. 2. The preponderance of the evidence is against finding that the appellant has an acquired psychiatric disorder that is related to active military service or events therein. 3. The appellant served less than 90 days of active duty; the regulations allowing for presumptive service connection for a psychosis are not for application. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by service, and a psychosis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in correspondence dated in February 2006 and March 2006 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability evaluations and effective dates are assigned. The case was most recently readjudicated in July 2012. VA fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. There is no evidence that additional records have yet to be requested, or that additional examinations for these issues are in order. As noted, in November 2011 the claim was remanded for additional development. The Appeals Management Center contacted the U.S. Army and Joint Services Records Research Center, and their April 2012 response has been associated with the claims file. In September 2013, the appellant's representative submitted a written brief presentation which asserted that VA had not sufficiently attempted to verify the appellant's stressor event because the information request sent to the U.S. Army and Joint Services Records Research Center asked for a search for a soldier with the last name of Winston, and did not request that they also consider that the name provided by the appellant could have been the soldier's first name. The Board notes, however, that the appellant clearly indicated in his December 2005 claim that the soldier whose death he witnessed was named "Private Winston," and he has at no time indicated that Winston could have been the soldier's first name. Moreover, the Joint Services Records Research Center reported that they were unable to locate a person named "Winston" as a casualty. The Joint Services Records Research Center did not state that they limited their search to last names only. The Board therefore finds that all necessary evidence has been acquired, there has been substantial compliance with the remand directives, fulfilling the duty to assist, and the case is now ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). Relevant Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of active duty, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128 (1997). The diagnostic criteria, including those related to stressors, set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV) for mental disorders have been adopted by the VA. 38 C.F.R. § 4.125 (2013). A diagnosis of PTSD requires exposure to a traumatic event and a response involving intense fear, helplessness, or horror. A stressor involves exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and the person's response involved intense fear, helplessness, or horror. See Cohen, 10 Vet. App. 128. The sufficiency of a stressor is a medical determination and is presumed by a medical diagnosis of PTSD. Id. The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether a veteran engaged in "combat with the enemy" as established by official records. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). For stressors unrelated to combat, credible supporting evidence is necessary in order to grant service connection. "Credible supporting evidence" of a noncombat stressor may be obtained from service records or other sources. Moreau v. Brown, 9 Vet. App. 389 (1996). The Court has held that the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor." Dizoglio, 9 Vet. App. 163. Therefore, the appellant's lay testimony is insufficient, standing alone, to establish service connection. Cohen, 10 Vet. App. at 147 (citing Moreau, 9 Vet. App. at 395). When all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In determining whether documents submitted by a claimant are credible, the Board may consider internal consistency, plausibility, and consistency with other evidence submitted on behalf of the appellant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The law provides, however, that the Board is not required to accept an appellant's uncorroborated account of his active service experiences. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). The benefit of the doubt rule provides that an appellant will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the appellant prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The appellant contends that he currently has PTSD related to an in service event. Specifically the appellant reports that while in boot camp he witnessed a fellow soldier by the name of Private Winston shoot himself in the head. He wrote in March 2006 that immediately after the incident he felt "numb" and "in a fog." He has written that he has felt greatly bothered by the image of the incident ever since. The appellant's service treatment records are negative for any complaints or treatment for mental illness. The appellant's personnel records do not contain any evidence pertaining to the shooting death of a soldier during basic training. They indicate that the appellant underwent basic combat training at Fort Jackson, South Carolina. VA contacted the U.S. Army and Joint Services Records Research Center in an attempt to secure information corroborating the appellant's claimed stressor event at Fort Jackson. Their response indicated that they were unable to locate any person with the name of Winston listed as a casualty in South Carolina between September and December 1969. In April 2012 the Appeals Management Center issued a memorandum indicating that it was unable to corroborate the appellant's claimed stressor event. The appellant's private treatment records show that he has been reporting feelings of depression since June 1994 due to an inability to work. At the time the appellant was being treated for a back disorder. In September 2005, the appellant was evaluated by a VA PTSD therapist. The appellant reported that he had seen a man standing next to him on the firing line in basic training shoot himself in the head with a rifle. He stated that he has had strong intrusive memories about this for the past 10 years, and that he avoids trigger activities, such as hunting, and has nightmares about this event 4 to 5 times a week. He also reported feeling irritable, depressed, and stressed due to anxiety. He indicated that he had previously been treated for dysthymic disorder and anxiety state. The therapist diagnosed the appellant with PTSD and generalized anxiety disorder. Starting in September 2005, the appellant began individual therapy treatment for PTSD, where he expressed problems with sleeplessness, nightmares, irritability, depression, and anxiety. In October 2006, the appellant underwent a VA psychiatric examination. The appellant reported witnessing a fellow serviceman kill himself in basic training, and also reported a more recent traumatic event, the death of a close friend in 2002, which he acknowledged "might be more relevant to his levels of distress at this particular point in his life." He reported having nightmares, sleepwalking, and feeling angry, short-fused, and depressed. The examiner discussed the appellant's medical and post-service history. The examiner ultimately found insufficient evidence to justify a diagnosis of PTSD. The examiner diagnosed the appellant with major depressive disorder, secondary to multiple life issues and stressors and not service related. The appellant was also diagnosed with alcohol dependence in remission. The appellant's stressors were listed as physical disabilities, financial problems, the loss of his home, his wife's poor health, and chronic pain. The examiner found that there was substantial compensation seeking behavior, and noted that "[t]here is much more evidence that his depression and anxiety is based on things other than these events and certainly more so than the event that occurred in the military." The appellant's VA psychiatrist submitted a letter in November 2007 which indicated that the claimant was being treated for PTSD and major depressive disorder with psychotic features and that he exhibited symptoms of isolation, social anxiety, hypervigilance, auditory hallucinations, and flashbacks. In December 2007, the VA psychiatrist submitted a letter stating that the appellant's PTSD symptoms "emanate from an inordinately traumatic experience" during basic training, specifically the shooting suicide of a fellow soldier. She stated that "[a]lthough in the years following this disturbing incident, [the appellant] was able to suppress the image and thoughts evoked, in the past 10 years, the distressing details of the trauma have been plaguing him more and more." After reviewing all the evidence of record, the Board finds that there is no credible evidence supporting that the reported in-service stressor event occurred. The appellant has asserted that he was traumatized by witnessing the death of a fellow soldier during training, with no involvement of fear of hostile military or terrorist activity. As the appellant did not engage in combat with the enemy, credible supporting evidence of the stressor event is necessary in order to grant service connection, and his lay statements alone cannot, as a matter of law, establish the occurrence of the stressor. See Moreau, 9 Vet. App. 389; Dizoglio, 9 Vet. App. 163. There is no evidence of record which corroborates the appellant's claimed stressor event. The U.S. Army and Joint Services Records Research Center was not able to find any record of a person named Winston listed as a casualty in South Carolina during the time of the appellant's service. The appellant has not provided any corroborating evidence or statements supporting his assertion of witnessing a suicide in service. The only evidence indicating the occurrence of the claimed stressor event comes from the appellant himself. As noted above, his uncorroborated statements and testimony, by themselves, are not sufficient. Although he has been diagnosed with PTSD by his VA therapist, absent credible corroborating evidence that the claimed in-service stressor actually occurred, the appellant cannot meet the criteria for service connection for PTSD. The appellant also has other valid psychiatric diagnoses provided by competent medical professionals, including depressive and anxiety disorders; but these disorders are not shown by any competent medical evidence to be related to his service. The October 2006 VA examiner found that the appellant had a current diagnosis of a major depressive disorder, but this was judged secondary to multiple life issues and not related to his service. The examiner also noted that his depression and anxiety were caused by other life issues more so than his claimed military stressor event. The VA examiner reviewed the medical history and personally examined the appellant, and his findings are consistent with other evidence of record; hence, the Board accepts the opinion as highly persuasive evidence on the current issue on appeal. Without competent and probative evidence indicating that the appellant's depressive disorder was caused by or otherwise related to an injury during service, service connection is not warranted. While the appellant's treatment records indicate that he has had nightmares related to his claimed stressor event, none of his mental health treatment providers have indicated that his psychiatric diagnoses other than PTSD were caused by or otherwise etiologically related to his military service. Thus, the overwhelming preponderance of the medical evidence is against finding that the appellant has a psychiatric disorder that is connected to service. The appellant, as a layperson, is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board acknowledges that the appellant is competent to make statements regarding the stress of witnessing the death of a fellow soldier. He is also competent to report symptoms such as nightmares or feeling anxiety. Competency does not, however, equate to credibility. Here, the complete absence of any service record documenting the death of the named soldier to be very telling as to the appellant's lack of credibility. Simply put, the death of a soldier at any time, to particularly include a death during recruit training, is carefully documented by the Armed Forces. The alleged death did not occur in combat, and as such, there would be records if the event did occur. The fact that there is no documentation is a telling commentary as to the credibility of the claimed stressor. A probative medical opinion on the etiology or underlying causes of a psychiatric disorder requires the specialized training of a medical professional. In this case, as a layperson not shown to possess appropriate medical training and expertise, the appellant is not competent to render a persuasive or competent medical opinion on whether his currently diagnosed psychiatric disorder was caused by or otherwise related to his military service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Hence, his assertions in this regard do not constitute competent and persuasive evidence in support of the claim for service connection. The Board has considered whether service connection for a psychiatric disorder, such as psychosis, is warranted on a presumptive basis. As previously noted, in order to be eligible to be considered for service connection on a presumptive basis, a veteran must have served in the military for at least 90 days. 38 C.F.R. § 3.307(a)(1). The appellant in this appeal had less than 90 days of active service, having served from October 23, 1969 to December 16, 1969. Therefore, this presumption is inapplicable. In short, there is no competent and probative evidence verifying the appellant's claimed PTSD stressor event or showing that the appellant has a psychiatric disability which has been connected through competent and probative evidence to his service, either directly or presumptively. Accordingly, the preponderance of the evidence is against the claim for service connection. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs