Citation Nr: 1334694	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  10-12 674	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel




INTRODUCTION

The Veteran served on active duty from August 1971 to March 1973.         

This matter comes before the Board of Veterans' Appeals (Board) on appeal from   a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

The Veteran was scheduled for a Board hearing in Washington, D.C.                                  in August 2012, but he did not appear at the hearing or indicate any desire to reschedule.  The prior hearing request is therefore deemed withdrawn.                          See 38 C.F.R. § 20.702(e) (2013). 

The Board remanded this case in September 2012 for further development, comprising a new VA Compensation and Pension examination pertaining to the etiology of his bilateral hearing loss condition, and additional measures to assist with the independent corroboration of alleged stressors in furtherance of claimed service connection for PTSD.  The requested development was completed (though the Veteran cancelled the scheduled VA exam), and the RO (through the Appeals Management Center (AMC)) continued the denial of the case pursuant to a                June 2013 Supplemental Statement of the Case (SSOC).  Upon return of this case to the Board again, the Board requested an advisory medical opinion from a Veterans Health Administration (VHA) audiologist, from whom in September 2013 the opinion sought was obtained.


FINDINGS OF FACT

1. There is competent medical opinion evidence causally associating the Veteran's bilateral hearing loss with in-service noise exposure as a boiler technician.

2. The Veteran does not have a verified stressor in furtherance of a clinical diagnosis of PTSD.  There is also no indication that any other mental health disorder is etiologically related to service. 

CONCLUSIONS OF LAW

1. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for a bilateral hearing loss.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2013).

2. The criteria are not met to establish service connection for a psychiatric disorder, to include PTSD and major depressive disorder.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist the Veteran

The Veterans Claims Assistance Act of 2000 (VCAA), codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  The implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application, inform the claimant of any information and evidence not of record:  (1) that is necessary to substantiate the claim; (2) that he is expected to provide; and (3) that VA will obtain on his behalf.  A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 C.F.R. § 3.159(b)(1) (2013).  

The United States Court of Appeals for Veterans Claims (Court) has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

As indicated below, the Board is granting the benefit sought on appeal of entitlement to service connection for bilateral hearing loss.  Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter, and need not be further discussed.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). 

Regarding the claim for service connection for a psychiatric disorder including PTSD, through VCAA notice correspondence dated in December 2008, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R.  § 3.159(b).  The VCAA notice further advised the Veteran of the responsibilities for providing supporting evidence, that VA and the Veteran had joint obligations to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records.  See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).   The Veteran also received notice as to the downstream initial disability rating and effective date elements of his claim for service connection.  

The relevant notice information must have been timely sent.  The U.S. Court of Appeals for Veterans Claims (Court) in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  The VCAA correspondence in this case preceded issuance of the rating decision on appeal, and thus met the standard for timely notice.  

The RO/AMC has taken appropriate action to comply with the duty to assist the Veteran with his claim through obtaining records of VA outpatient treatment, service treatment records (STRs) and service personnel records.  Pursuant to a prior Board remand directive, the RO/AMC has also taken appropriate measures to further assist the Veteran with attempting to independently corroborate his claimed in-service stressors in support of service connection for PTSD, contacting the appropriate Federal records depositories for a review of unit history records as to whether these records substantiate the incidents claimed.  While no VA Compensation and Pension examination has been completed with reference to this claim, the Board finds that no such examination is necessary.  The Veteran has been diagnosed with PTSD by his VA treatment providers, however, he does not have a currently verified or verifiable in-service stressor, following several attempts at corroboration of the alleged incidents.  There is no possibility that PTSD may be etiologically linked to a confirmed stressor from service, and thus, no basis for ordering a VA examination on this claim.  Indeed, the prior remand made obtaining a VA examination conditional upon initial confirmation of an in-service stressor, and in the absence of any current verified stressor, an examination is not warranted as to the claim insofar as the claimed condition of PTSD.  Nor is there any indication that a psychiatric disorder other than PTSD may be associated with service.  See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Charles v. Principi, 16 Vet. App. 370 (2002).  Meanwhile, in furtherance of his claim, the Veteran has provided several personal statements, and copies of additional personnel records, and private treatment records.  He previously requested a hearing before the Board's Central Office hearing in this matter, but failed to appear and  has not since rescheduled the hearing.  There is no indication of any further relevant evidence or information that has not already been obtained.  

In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations.  That is to say,                      "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim."  Conway v. Principi, 353 F. 3d. 1369  (Fed. Cir. 2004).  Accordingly, the Board will adjudicate the claim on the merits. 

Governing Law, Regulations and Analysis

Service Connection for Bilateral Hearing Loss

Under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013).  Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).

The elements of a valid claim for direct service connection are as follows:                   (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

Under 38 C.F.R. § 3.385, impaired hearing will be considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are             26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.

Regarding direct service connection, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim.  38 C.F.R. § 3.303(b).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a).

The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection.  In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.

Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service (again, subject to the limitation that a "chronic" disease is involved as defined under 38 C.F.R. § 3.309(a)).  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 

The Federal Circuit further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of        38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition.  However, as also observed by the Federal Circuit, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). 

Service treatment records reflect that at service entrance in June 1970, an audiogram indicated results of a whispered voice hearing test at 15/15 in both ears. On separation in February 1973, the whispered voice hearing test again showed 15/15 in both ears.  An audiogram revealed pure tone thresholds, in decibels,         as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
5
5
5
LEFT
15
10
10
20
5

The Veteran's Form DD-214 (Report of Separation from Service) indicates a military occupational specialty (MOS) as a Machinery Repairman.

In his initial November 2008 formal application for VA compensation benefits            (VA Form 21-526), the Veteran identified the onset of his hearing loss as being situated in the boiler room of the ship on which he was stationed.  In other correspondence, the Veteran has given a similar account of alleged in-service   noise exposure.

On VA Compensation and Pension examination of January 2010 by an audiologist, the Veteran described in-service noise exposure as a boiler tech from "climbing in boilers and punching holes out of tubes," without the use of hearing protection.   The audiogram revealed as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
20
40
40
LEFT
15
15
20
50
55

Speech audiometry revealed speech recognition ability of 100 percent in both ears.

A November 2010 addendum to the January 2010 VA examination indicates that upon review of the claims file, "[i]t is the opinion of this examiner than an opinion cannot be rendered regarding hearing loss with this information without resorting to speculation."  It was observed in this regard that audiometric thresholds were within normal limits on the Veteran's separation audiogram; however, since there were no audiometric thresholds on the enlistment examination, there was no way to determine if a threshold shift occurred during active military service.  

Thereafter, a September 2013 VHA advisory medical opinion was obtained from a VA audiologist, stating as follows:

This examiner made a full and complete review of the Veteran's C-file.  These records included his service treatment records, and DD-214 and other administrative records.  Although not part of the C-file, some information contained in the C-file was compared with the DOD  Relative Noise Exposure Report on all enlisted and officer MOSs.

The Veteran was on active duty in the U.S. Navy from August 15, 1971 to March 2, 1973.  According to his DD-214, he served thirteen months sea service during this time.  His MOS was Series 44 - machinery repairman, a rating which has a high probability of excessive levels of noise.  His last job performance ratings for period September 2, 1972 to February 21, 1973 indicated that he was "involved in upkeep and repair  of boilers and evaporators."  

This reviewer examined two Reports of Medical Examination, dated  June 9, 1970 and February 6, 1973, near the time of [the Veteran's] release from active duty.  In the entrance examination when he entered naval reserve, it was reported that his  hearing was "15/15" for the whispered voice test.  When he was released from active duty, his hearing was within normal limits (i.e., thresholds were 20 dB hearing loss or better).  The only thresholds at 20 dB were at 3000 and 6000 Hz in the left ear.  Hearing loss associated with acoustic trauma was 4000 Hz, and to a lesser degree, 3000 and 6000 Hz.  The threshold at 4000 Hz in the left ear was 5 dB hearing loss.  Significantly better hearing at 4000 Hz in the presence of poorer thresholds at the adjacent frequencies is not commonly seen with noise-induced hearing loss.  

Medical Opinion - The Veteran's hearing loss is at least as likely as not (50% probability or greater) caused by or a result of an event in military service.

Rationale - The Veteran was assigned to a work environment that has a high-probability of noise, but he did not appear to show evidence of a noise-induced hearing loss.  The Whisper Test is not a valid measurement of frequency thresholds and cannot be compared with a pure tone audiogram.  Absent frequency-specific information about his hearing at the time of enlistment prevents a direct determination of significant threshold shifts due to military service.  However, because he worked in an area with high likelihood of excessive levels of noise, the Veteran's hearing may have been significantly better at time of entrance to service.  Although he exhibited normal hearing in both ears at time of separation, he did show worse hearing in some higher frequencies associated with acoustic trauma at least in one ear.  
 
Based on the foregoing, service connection for hearing loss will be granted.  It is readily apparent that the Veteran manifests a current bilateral hearing loss disability as that condition is defined for VA purposes under 38 C.F.R. § 3.385.  As to the question of etiology of bilateral hearing loss, there is minimal information upon which to resolve this matter based on service records alone.  This notwithstanding, the September 2013 VA audiologist's opinion on the matter ascertains the likelihood of a causal linkage between hearing loss and service on the grounds of the limited information which is provided on the Veteran's separation audiogram, as well as taking into account his own competent assertions of excessive noise exposure as a technician in a ship's boiler room.  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (an absence of documented hearing loss during military service still does not preclude the claimant from establishing service connection when there is a post-service diagnosis of hearing loss, and medical evidence establishing a causal link to service).  The medical opinion proffered is competent and probative, and effectively establishes causation.

Therefore, with all key requirements having been met to demonstrate service connection, the claim will be granted.

Service Connection for a Psychiatric Disorder, Including PTSD

The specific criteria for establishing service connection for PTSD are: (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.  A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that  all psychiatric diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV).  38 C.F.R. § 3.304(f) (2013).

The evidence necessary to establish the occurrence of a recognizable 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 recognized military combat citations or other official records.  See, e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Cohen v. Brown, 10 Vet. App. 128 (1997).  If VA determines the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required provided that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service."  See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).

If, however, the veteran's stressor is unrelated to participation in combat, then his lay testimony, in and of itself, is insufficient to establish the occurrence of the alleged stressor.  Instead, the record must contain credible supporting information from an independent source that corroborates his testimony or statements, such as service records.  See Cohen, 10 Vet. App. at 146-47.  See also Moreau v. Brown,           9 Vet. App. 389, 394-95 (1996).  The available sources for corroboration of a claimed stressor are not necessarily limited to service records, but may also include other sources of evidence such as lay statements from third-party individuals.  See Cohen, 10 Vet. App. at 143 (indicating that corroborating sources need not be found only in service records, contrary to what was previously set forth under the VA Adjudication Manual, M21-1, Part VI, para 7.46(f) (Sept. 21, 1992); and M21-1, Subch. XII, para 50.45(d) (1989)).

Apart from the above provisions, there has been a regulatory change to the pertinent criteria.  Effective July 13, 2010, VA revised the regulation governing adjudication of claims for service connection for PTSD.  See 75 Fed. Reg. 39,843 (to be codified at 38 C.F.R. § 3.304(f)).  The revised regulation essentially eases the requirement that there be objective corroboration of a claimed in-service stressor.  Under the new standard, 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 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 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. 

Private treatment records include a November 2007 clinical report diagnosing      the Veteran with a "mood swing disorder."

In his November 2008 formal application for compensation benefits, the Veteran identified dates of treatment for PTSD as from August 18, 1971 to September 7, 1971, while stationed aboard the U.S.S. John R. Perry.

The Veteran's service personnel records indicate that he served aboard the                U.S.S. John R. Perry from November 17, 1971 to February 21, 1973.  Also noted in a performance evaluation report dated February 1973 is that the Veteran received a favorable review for his role in the upkeep of the ship's service boilers and evaporators, having frequently spent many off-duty hours in his working space.  The Veteran was considered highly recommended for advancement to the next grade of boiler technician.

Another document in the personnel file indicates the Veteran's signature and consent (undated) to the fact that the U.S.S. John R. Perry participated in classified special operations.

The Veteran did not respond to a December 2008 RO development letter requesting further information regarding his alleged in-service stressors. 

In response to an RO inquiry, in February 2009 the National Personnel Records Center (NPRC) indicated that there was no evidence in the Veteran's file to substantiate any service in the Republic of Vietnam.

Records of VA outpatient treatment show that on a February 2009 general medical consult, a PTSD screening was negative.  Another treatment record dated that month from a VA nurse practitioner states that "[the Veteran] has severe PTSD from time in Navy where there were many times he thought he would die working in the boiler room on a ship."  

An additional February 2009 record from the same nurse practitioner (and                   co-signed by a physician) provides a diagnosis of major depressive disorder, recurrent, severe without psychotic features; and PTSD, chronic, severe.              The impression was given of a "combat Navy veteran with PTSD from experiences on ship."  The Veteran had described as traumatic experiences from service having worked in a boiler room and gotten trapped for several hours in an enclosed space where he thought he was going to die.  He was also assigned to a body detail working with individuals who had been killed during Vietnam service.  According to the evaluating treatment provider, the Veteran endorsed all the symptoms of PTSD including flashbacks that were accompanied by panic attacks, nightmares, avoidance of things that reminded him of service, and hypervigilance.  He was also endorsing all the symptoms of major depressive disorder.  

The report of an April 2009 telephone consult with a VA psychologist indicates a diagnosis of PTSD; major depressive disorder, recurrent, not otherwise specified (NOS); and panic disorder with agoraphobia. 

A March 2010 nurse practitioner's consult indicates that the Veteran was having problems with paranoia and hearing voices.  After evaluation, the impression was of severe PTSD with some increased disorientation and psychosis.  In September 2010, the impression was of severe PTSD and possible bipolar disorder.  

The Veteran then submitted a copy of one of his personnel records, highlighted the portion indicating service from September 21, 1971 to October 5, 1971 (just prior to his assignment to the U.S.S. John R. Perry), and stated that during this time he was temporarily assigned to the U.S.S. Benewah which was then stationed in the Philippines, where he was assigned to the operation of body detail.  In May 2009 correspondence, the Veteran indicated again that from September 21, 1971 to October 5, 1971 he was put on detail with the U.S.S. Benewah involving the transport of bodies of individuals who had been killed serving in Vietnam.

Thereafter, the RO obtained a copy of the ship's history for the U.S.S. Benewah indicating that this ship was decommissioned on February 26, 1971 at Subic Bay, Philippines, then placed in service and reclassified "Miscellaneous Auxiliary"        on February 28, 1971, then finally placed out of service September 1, 1973. 

The Veteran then indicated in a May 2009 response to an RO PTSD stressor questionnaire that all pertinent information had already been given to his VA treatment providers. 

In March 2010 correspondence, the Veteran further stated as follows: "I guess we were in China seas... The crew thought we would be captured.  The 24 hours we were GQ [General Quarters] I thought I was going to be a P.O.W."  

Thereafter, the Board remanded to provide assistance with independent verification of the most recent claimed stressor, primarily to obtain or review ship's deck logs for the U.S.S. John R. Perry to determine whether the ship was in hostile waters, including in the waters off the coast of Vietnam, during the Veteran's assignment to this vessel from November 1971 to February 1973.  

In October 2012, the National Archives and Records Administration (NARA) responded in the negative, after reviewing the deck logs for the U.S.S. John R. Perry, stating that the ship operated only in the area of Pearl Harbor, Hawaii, during the time period in question.

In March 2013, the U.S. Joint Services Records Research Center (JSRRC) responded based on its research, that a 1972 command history for the U.S.S. John R. Perry was not maintained by the Naval History and Heritage Command (NHHC).  However, since the ship had just returned from a Western Pacific (WESTPAC) deployment on December 9, 1971 it was doubtful it would be back in WESTPAC  in January 1972.  A review of the 1971 command history revealed that the ship departed from Pearl Harbor, Hawaii WESPAC deployment on August 2, 1971.   The history further revealed that the ship arrived in Cam Ranh Bay, Republic of Vietnam on August 25, 1971.  The ship conducted Operation Market Time missions in Patrol Area 5B, along the coast of Vietnam, during the period August 25, 1971 through September 7, 1971.  The ship pulled back into Cam Ranh Bay to pick up a new commanding officer on September 7, 1971.  The ship then departed for Yokosuka, Japan and did not return to the Vietnam area of operations in 1971.  The U.S.S. John R. Perry conducted Special Operations (SPECOPS) missions in contact and surveillance of Russian ships in the Pacific Ocean, off the coast of Japan, during the periods September 7-13, September 24 through October 6, and November 3-13, 1971.  The ship returned to homeport, Pearl Harbor, Hawaii on December 9, 1971.  The ship was moored at Pearl Harbor, Hawaii on January 1, 1972 through February 20, 1973 when it was decommissioned. 

The Board has considered the evidence in its entirety, and finds that the record    does not allow for an award of service connection for a psychiatric disorder, including PTSD.  First, the Board will focus upon the condition of PTSD, as this is the primary basis for the Veteran's claim.  To begin with, the Board is readily aware that one or more VA treatment providers have diagnosed the Veteran as having PTSD.  Whether these diagnoses were definitively made by qualified mental health treatment providers and in accordance with the provisions of the DSM-IVR, the Board will not address, as there is sufficient preliminary indication of the potential likelihood of a PTSD diagnosis.  This have been established, however, pursuant to applicable law at 38 C.F.R. § 3.304(f) the Veteran's PTSD must also be etiologically linked to a verified or verifiable stressor, as none of his claimed stressful incidents are related to participation in combat nor is combat service objectively verified anywhere in the record.  The only other exception to the verification criterion is for stressors premised on a fear of hostile terrorist or enemy activity, where consistent with the circumstances of service.  It is essential that a claimant seeking service connection for PTSD for stressors unrelated to combat set forth a verified stressor, or at minimum one which corresponds to the revised regulation for a stressor premised on fear of hostile military activity.  Notwithstanding what the Veteran himself has averred to the contrary, the diagnosis of PTSD in and of itself is not sufficient to meet the complete requirements for a claim under 38 C.F.R. § 3.304(f).  

On this subject, the Board has closely reviewed the background and circumstances regarding the Veteran's alleged stressors.  As to the claimed incident of the Veteran having been frightened and thinking he would die while working in the boiler room of the ship, unfortunately, this incident by itself is not readily amenable to independent verification.  Given that it would not be documented in unit history records, and that STRs do not reflect a concern for this during service, other sources of evidence such as contemporaneous lay witness testimony might prove valuable, but there is none available or submitted by the Veteran.  In any event, this type of incident is inherently very difficult to verify objectively.  Nor is it ostensibly related to a fear of hostile military activity.  Therefore, it cannot substantiate a clinical diagnosis of PTSD.  

Concerning the next alleged incident of having been aboard the U.S.S. Benewah during the transport of bodies of individuals who had been killed while serving in Vietnam, the record also does not clearly substantiate this incident.  Whereas the Veteran identified the time period from September 21, 1971 to October 5, 1971            as when it occurred, the official ship's history for the U.S.S. Benewah indicates that the ship was actually decommissioned many months earlier and remained in the Philippines for at least two years afterwards, with no documentation of a return trip to the continental U.S. at any point.  There is no other objective evidence that would otherwise assist in verifying this incident.

The third alleged stressor pertains to having been in hostile waters close to mainland China during which the Veteran along with the rest of the crew of the U.S.S. John R. Perry were worried about being captured and taken prisoner.                   This stressor incident in particular does pertain to a fear of hostile enemy action, but nonetheless the Board finds, still does not belong within the purview of the revised regulation relaxing the requirement of objective stressor verification, given that the incident according to unit history records is inconsistent with the nature and circumstances of the Veteran's service.  Indeed, records inquiries with both the NARA and JSRRC have confirmed that at least during the time the Veteran was aboard the U.S.S. John R. Perry the ship was docked at Pearl Harbor, Hawaii (the only exception being a brief time period between November 17, 1971 and December 9, 1971, notably after a time spent patrolling the waters off Japan).  There is simply no evidence of service in the waters near China, or close offshore of Vietnam.  Consequently, the Board has little indication before it of service consistent with the circumstances that the Veteran has described in connection with this stressor.  Nor does the personnel record signed by the Veteran acknowledging that the ship participated in covert operations provide specific and credible indication of having traversed dangerous waters roughly as described by                       the Veteran, when the actual unit history documentation strongly suggests otherwise for the time period the Veteran was stationed aboard.  It follows that the foregoing incident does not provide a stressor in furtherance of a clinical diagnosis of PTSD.

In the absence of an objectively verified or otherwise qualifying in-service stressor, the claim for service connection for PTSD cannot be substantiated.  

The Board has still considered the possibility that the Veteran has one or more other present mental health conditions that may be causally related to an incident of military service, including his diagnosed bipolar disorder, major depressive disorder and/or panic disorder, but finds that there is no evidentiary basis upon which to associate any of these conditions with service.  There was no mental health treatment during service, and the initial record of treatment for any psychiatric condition is dated more than 30 years post-service.  See generally, Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (the prolonged absence of medical complaints since service is amongst those factors which may be considered in determining whether a causal nexus to service is established).  Nor has the Veteran himself otherwise identified any theory under which a current mental health disorder other than PTSD is etiologically related to his service.  He has not reported experiencing symptoms of a psychiatric disorder during service or continuing since service.  There is no medical or lay evidence of record showing that any psychiatric disorder other than PTSD had is clinical onset during active service or is related to any in-service disease, event, or injury. 

For these reasons, the Board must deny service connection for a psychiatric disorder, including PTSD.  The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).   


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for a psychiatric disorder, to include PTSD and major depressive disorder, is denied.



____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs