Citation Nr: 1334429 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 08-30 194A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1979 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The case was certified to the Board by the RO in Newark, New Jersey. In May 2012 and June 2013, the Board remanded the Veteran's claim for additional development. The case is once again before the Board for appellate review. A review of Virtual VA reveals that it contains no additional documents relevant to this claim. Further, this appeal was processed using the Veterans Benefits Management System paperless claims processing system. Accordingly, any future consideration of the appellant's case should be applied to this electronic record. 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's statements regarding his in-service stressor are of minimal probative value and raise grave questions as to his credibility. 2. The Veteran has not been diagnosed with PTSD based on an independently verified in-service stressor. 3. The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder that is related to active military service or events therein, and there is no evidence of a compensably disabling psychosis within one year following discharge from active duty. 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. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 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 Veteran in correspondence dated in February 2007 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 2013. VA fulfilled its duty to assist the Veteran 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 May 2012 and June 2013 the claim was remanded for additional development. In April 2013, the Veteran was afforded a VA psychiatric examination, the report of which has been associated with the record. VA treatment records were acquired and associated with the electronic record, and further attempts were made to verify the Veteran's claimed stressor event. VA also sought clarification of the Veteran's current address and mailed all correspondence to the address provided by his wife in June 2013. Although the July 2013 supplemental statement of the case was returned to VA as undeliverable, the Board notes that while VA has a duty to assist the appellant in the development of his claim, that duty is not limitless. In the normal course of events, it is his burden to keep VA apprised of his whereabouts. If he does not do so, there is no burden on the VA to "turn up heaven and earth" to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). There has therefore 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). The Board has reviewed all the evidence in the Veteran's claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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. § 1131; 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); Pond v. West, 12 Vet. App. 341 (1999). 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 such service, 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 (2012). 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 the 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 Veteran's lay testimony is insufficient, standing alone, to establish service connection. Cohen, 10 Vet. App. at 147 (citing Moreau, 9 Vet. App. at 395). The regulations governing PTSD were amended, effective July 13, 2010. 75 Fed. Reg. 39843 -52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a claimed stressor is related to a 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 PTSD and that the veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. Id. Beyond the above, following the point at which it is determined that 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 veteran are credible, the Board may consider internal consistency, plausibility, and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The law provides, however, that the Board is not required to accept a veteran's uncorroborated account of his or her active service experiences. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the veteran 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 Veteran contends that he currently has PTSD related to a flight deck accident during service, during which he was blown overboard from his ship, the USS Nimitz. His wife has submitted statements describing the Veteran's current mental instability and unpredictable behavior. The Veteran's service treatment records are negative for any evidence that he was blown overboard at any time during service. The Veteran stated at his May 2007 VA examination that the event happened in 1983, and later statements from his representative indicate that the appellant had been incorrect regarding that date, and that the event happened later, during the appellant's second enlistment period, between 1983 and 1987. The Veteran's service treatment records do show that on December 19, 1986, he presented to the infirmary on the USS Nimitz with complaints of soreness to his right leg, right hip, and right elbow after being blown down by an A-7 on the flight deck the night before. The representative has asserted that this service treatment record is in fact evidence of the Veteran's claimed stressor event. There is no suggestion, however, based on the account contained in this record, that the appellant was blown into the sea. Following a physical examination the assessment was a soft tissue injury to right lower buttocks, right elbow, and right knee. At a follow up evaluation on December 22, 1986, the assessment was resolving muscular strain secondary to trauma to right knee, back, and elbow. VA contacted the US Army and Joint Services Records Research Center requesting the command history of the USS Nimitz, in order to corroborate the Veteran's assertion that he was thrown overboard during service in 1986. The US Army and Joint Services Records Research Center responded that the command history and deck logs of the USS Nimitz did not contain any documentation of any man overboard incidents in December 1986 as described by the Veteran. Deck logs indicated that the ship conducted air wing carrier qualifications and man overboard drills in December 1986 off the coasts of North Carolina, Virginia, and Florida. In March 2013, VA issued a formal finding of lack of information required to corroborate the Veteran's claimed stressor event. The Veteran's VA treatment records indicate that he has been receiving regular in- and out-patient mental health treatment and psychotherapy since at least August 2007. The Veteran reported feeling depressed since approximately 2004. In a December 2007 mental health note, the Veteran stated that he had been blown off the deck of a ship during service, and that he now had nightmares related to that incident. The Veteran also discussed this event with his psychiatrist in September 2008 a social worker in March 2011, who diagnosed the Veteran with PTSD. The Veteran has received diagnoses of depressive disorder, PTSD, polysubstance/alcohol dependence in remission, adjustment disorder, substance induced mood disorder, mental disorder affecting medical condition (diabetes), and pathological gambling. None of the Veteran's treating medical professionals provided an opinion regarding the relationship of his psychiatric diagnoses other than PTSD and his service. In May 2007, the Veteran underwent a VA PTSD examination. At that time, he reported that in 1983, while serving aboard an aircraft carrier, he was accidently blown off of a tractor and into the Mediterranean Sea. He reported that he had no idea what happened after he was blown off the ship and into the sea, and that he woke up in the infirmary and was informed what happened to him. The examiner opined that the level of traumatic stress exposure was high and that the Veteran met the criteria for a diagnosis of PTSD. The examiner also diagnosed the Veteran with panic attacks and partner relational problems, but did not provide an opinion regarding their relationship to service. In April 2013, the Veteran was afforded an additional VA examination. The examiner reviewed the claims file and VA treatment records. The examiner discussed the Veteran's personal history. The examiner noted the Veteran's treatment for several years for depression due to situational issues, unemployment, and financial strain. The Veteran discussed his current problems with his family, finances, and homelessness, but notably did not allege that any stressful event occurred to him during service. The Veteran denied any interpersonal problems or problems performing his duties in the military. He denied ever getting seriously sick or having any adverse effects from his military experience, and stated that he "liked everything about it." The examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD. The examiner also noted that the Veteran had continued to perform training activities and receive positive performance reviews in the weeks immediately following the incident in December 1986, indicating that his performance was not affected by any accident. The examiner diagnosed the Veteran with a depressive disorder and alcohol abuse in remission. The examiner opined that both diagnoses were less likely than not related to active military service. After reviewing all the evidence of record, the Board finds that there is no credible evidence supporting that the reported in-service stressor event actually occurred. The Veteran has asserted that he was traumatized by being blown overboard during service while serving in a non-combat position. At the time he was not involved or in fear of hostile military or terrorist activity. Therefore, the recent amendments to 38 C.F.R. § 3.304 described above are not for application. Because the Veteran was not engaged in combat with the enemy, credible supporting evidence of the stressor event is necessary in order to grant service connection, and the appellant's 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. Service records show only that the Veteran suffered minor injuries when he fell on a flight deck in December 1986. There is no indication, however, in the service records that the Veteran was blown overboard into the sea as alleged. Ship records from the USS Nimitz do not contain any record of a man overboard as the Veteran described, nor do they even indicate that the ship was in the Mediterranean Sea at the time of the alleged December 1986 injury. Furthermore, the Veteran has not provided a consistent or credible account of the event that he claims led to PTSD. While the Veteran described the accident which led to his being blown overboard at his May 2007 VA examination, in April 2013 he denied any serious problems occurring to him at any time during his service, and remarked that he had done well and enjoyed his time in the service. Taken together, the evidence preponderates against a finding that the alleged stressor actually occurred. The only evidence to the contrary comes from the Veteran, and he has since contradicted his own story. As noted above, his uncorroborated statements and testimony, by themselves, are not sufficient to establish an independently verifiable in-service stressor. Based on the Board's findings regarding the Veteran's credibility, the findings of the May 2007 VA examiner and his VA treating psychiatrist and social worker, which were based solely on the appellant's uncorroborated account of being blown overboard in service, are of limited probative value. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) (a medical opinion based upon an inaccurate factual premise is not probative). Absent credible corroborating evidence that the claimed in-service stressor actually occurred, the appellant cannot meet the criteria for service connection for PTSD. Regarding the question of entitlement to service connection for a psychiatric disorder other than PTSD, per the April 2013 VA examination, the Veteran suffers from a depressive disorder and alcohol abuse. The April 2013 examiner reviewed the medical history and personally examined the Veteran, 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 Veteran's psychiatric disorders were caused by or otherwise related to an injury during service, service connection is not warranted. To the extent that the Veteran and his wife have asserted that his other psychiatric disorders are due to an event in service, the Board is unable to assign any probative weight to these assertions. The Veteran and his wife, as laypeople, are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a probative medical opinion on the etiology or underlying causes of a psychiatric condition requires the specialized training of a medical professional. As laypeople not shown to possess appropriate medical training and expertise, the Veteran and his wife are not competent to render persuasive or competent medical opinion on whether any currently diagnosed psychiatric disorders were 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. Hence, their assertions in this regard do not constitute competent and persuasive evidence in support of the claim for service connection. The Board also considered whether service connection for a psychiatric disorder is warranted on a presumptive basis. A psychosis shall be presumed to have been incurred in service when a veteran has served continuously for 90 days or more and it manifests to a degree of 10 percent or more within one year from termination of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this case, there is no evidence that the Veteran had a compensably disabling psychosis within one year of his separation from active duty. The appellant has not alleged that he had any medical treatment for a psychiatric disorder at that time in-service or within a year of separation from active duty. Therefore, this presumption is inapplicable in the current case. In short, there is no competent and probative evidence verifying the claimed stressor event or showing that the Veteran 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 Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107. 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