Citation Nr: 1336776	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  10-15 288	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran, his spouse, D. R., and R. R.


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1973 to August 1977.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

The issue of entitlement to service connection for an acquired psychiatric disability, including PTSD, was previously characterized as entitlement to service connection for just "PTSD."  The United States Court of Appeals for Veterans Claims (Court) has held that such claims encompass claims of entitlement to service connection for all psychiatric disabilities.  Clemmons v. Shinseki, 23 Vet. App. 1, 5 (2009).   

In April 2013, the Veteran, his spouse, D. R., and R. R. testified at a Board hearing held before the undersigned Veterans Law Judge in Indianapolis, Indiana.  A copy of the transcript is of record on the "Virtual VA" system.  During the hearing, the Veteran requested that the record be held open for 60 days, so that additional evidence could be submitted.  In April 2013, he submitted additional evidence and personal statements with a waiver of initial RO consideration.  38 C.F.R. § 20.1304(c) (2013).

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system and the "Virtual Benefits Management System (VBMS)" to ensure a total review of the evidence.  


FINDINGS OF FACT

1.  All relevant evidence necessary to decide the Veteran's appeal has been obtained.

2.  The Veteran has a diagnosis of PTSD, depressive disorder not otherwise specified (NOS), major depressive disorder, depression, adjustment disorder, and anxiety NOS.

3.  The current acquired psychiatric disability, including PTSD, did not have its onset during active service nor is related to active military service, to include alleged stressor events.  


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disability, including PTSD, have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that service connection is warranted for his PTSD as due to traumatic events during active military service.

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Particular to service connection for PTSD, there must be (1) medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).

In making all determinations, the Board must consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

An acquired psychiatric disability, including PTSD, is currently shown by the evidence of record during the appeal period.  Specifically, an August 2008 VA examination report for mental disorders lists the Axis I diagnosis of depressive disorder NOS.  VA outpatient treatment records from August 2007 to April 2011 document the Veteran's psychiatric diagnoses of PTSD, major depressive disorder, depression, adjustment disorder, and anxiety NOS.  

Review of the service treatment records reveal his orders to serve at the Marine Barracks in London from March 24, 1974 to December 23, 1975, as well as physical treatment in London in March 1974, November 1974, and November 1976.  An October 1975 in-service examination report notes "increasing anxiety lately, not specifically job related."  

On the October 1975 Report of Medical History, the Veteran reported "nerve problems occasionally" and marked "yes" for having or ever having had nervous trouble of any sort.  His DD Form 214 also reflects his military occupational specialty (MOS) as rifleman.  The Board has taken this into careful consideration.  

During the course of this appeal, the Veteran has repeatedly asserted he experienced traumatic events during active military service in England, Africa, Brazil, and Afghanistan, in the 1970's, as explained in personal statements and at the April 2013 Board hearing.  

The Board particularly acknowledges the Veteran's testimony that his stressors include the attempted assassination of Benjamin Netanyahu (an order which, the Veteran contends, was countermanded), the current Prime Minister of Israel, in Afghanistan, in the 1970's, as well as other stressors cited at the hearing held before the Board.

The Board finds there is no competent medical evidence of record that relates the Veteran's acquired psychiatric disability, including PTSD, with his military service in general, or his alleged stressor events specifically.  The only evidence that relates the Veteran's acquired psychiatric disability, including PTSD, to his military service consists of the Veteran's own statements.  The Board does not doubt that the Veteran sincerely believes his acquired psychiatric disability, including PTSD, is related to his traumatic events during active military service; however, without any competent accurate indication of record of such a relationship, the Veteran's claim must be denied.  

Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Nonetheless, the Board notes that the question of causation, in this case, involves a complex medical issue (the etiology of his acquired psychiatric disability, including PTSD).  There is no indication that the Veteran or his friends and family have the requisite knowledge of medical principles which would permit them to render an opinion regarding a matter involving medical etiology.  See Jandreau, 492 F.3d at 1376-77.

The Board had the opportunity to review the Veteran's statements at hearing, in person, and those of his friends and family, at length, and in detail, as requested by the Veteran and his representative.  In this regard, it is important to note that none of the people who testified witnessed the events the Veteran has indicated occurred during his military service.  The Veteran cited many stressor in service, including being sent into military action/combat in Brazil, in the 1970's, being sent to Dafur/Sudan, in Africa, to battle a genocide from a leader who the Veteran believed was Cuban [Transcript at page 18 of hearing before the Board] along with combat in Afghanistan, all within a period of several months [transcript at page 30]. 

The Board, after hearing the Veteran's statements, does not doubt the deep sincerity of his current beliefs.  However, this does not mean he is an accurate historian of events that occurred during service from many years ago.  Simply stated, based on a review of the Veteran's testimony, and statements, the events the Veteran recalls did not, in fact, occur, and there is no event that the VA may confirm, because they did not occur.  The Board finds that the Veteran's recollection of events is simply empirically faulty.  Reference to the current Prime Minister of Israel training "jihad trainers" in Afghanistan in the 1970's, with the Veteran's order to assassinate him by the United States, only confirm such findings, among other statements from the Veteran, which the Board believes it does not need to recite at this time. 

The Board has considered whether it is possible that some of the Veteran's less eccentric stressors may be possible, therefore possible confirmation of these stressors or other action may be required under the duty to assist, but a detailed review of the record clearly indicates this not to be the case.  Any effort to confirm any of the Veteran's stressors would end in failure.  Any effort to attempt to associate the Veteran's clear current problem with his service in the 1970's in light of his testimony and statements would also end in failure in light of the Veteran's inability to provide an factual accurate history.  The Board finds that the Veteran's recollections of events from the 1970's are simply not correct.  The Board has also considered the service treatment records, however, these records do not provide the basis to find that the Veteran's current problem may be reasonably associated with the events the Veteran has cited in service.   

With regard to any other acquired psychiatric disability, other than PTSD, the record indicates no problem until decades after the Veteran was discharged from service, providing highly probative evidence against this claim.  While silence over a long period of time is not a basis to deny generally under VA law, the Veteran's testimony only provides evidence against his claim that his current problem can be reasonably associated with events in service from the 1970's.

For these reasons and bases discussed above, the Board finds that the evidence is against the claim for service connection for an acquired psychiatric disability, including PTSD.  As a result, this claim must be denied and the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Board finds that the duty to notify has been satisfied by a January 2008 letter.  

Regarding the duty to assist, the evidence of record includes personal statements from the Veteran and his friends and family, VA outpatient treatment records, private treatment records, and Social Security Administration (SSA) records.  

At hearing, the Veteran was given time to obtain other records which would support his claim.  At that time, the Board indicated that if we did not hear from him we would assume he was unsuccessful and no other records were available.  The discussion on this point was detailed.  The Veteran and his representative agreed.  No additional pertinent records have been submitted beyond the ones cited.  There is no indication that additional records exist or, if they did, that they would provide a basis to grant this claim. 

The Veteran was also provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge in April 2013.  The Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  See Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

The Veteran was not afforded a VA examination or medical opinion in connection with the claim on appeal, but none is required.  As discussed above, the only evidence that the Veteran's claimed acquired psychiatric disability, including PTSD, is related to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence.  See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1277-79 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006);

As noted above, the Veteran served on active duty from August 1973 to August 1977.  It is highly unclear, in light of the Veteran's inability to recall the accurate facts that occurred during this time frame, and others, what a VA examination could assist the VA in determining regarding the critical issue in this case:  A connection between the Veteran's current problem and his military service more than 30 years ago.  It would place the examiner in the position of fact finding.  The Board must make such a determination in this unique case.    

The Board finds no further assistance to the Veteran with the development of evidence is required.  See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).


ORDER

Service connection for an acquired psychiatric disability, including PTSD, is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs