Citation Nr: 1337663 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-04 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a) (2) (West 2002). The Veteran served on active duty with the United States Navy from November 1952 to October 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Nashville, Tennessee, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to service connection to PTSD and depression as separate disability entities. The Board has recharacterized the appeal to reflect that the Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The psychiatric disabilities have been combined into a single claim. For this same reason, a May 2011 rating decision denying service connection for anxiety is subsumed by the ongoing appeal. The Veteran and his wife testified at a March 2013 hearing held before the undersigned via videoconference from the RO; a transcript of the hearing is associated with the Virtual VA paperless claim file. At that time the Veteran also submitted a stressor statement, along with a waiver of initial RO consideration. When this case was most recently before the Board in May 2013, it was remanded for additional evidentiary development; it has since been returned to the Board for further appellate action. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy, and there is no credible supporting evidence to corroborate the Veteran's report of in-service stressors upon which a diagnosis of PTSD was based. 2. Any currently present acquired psychiatric disorders were not manifest in service and are unrelated to service. CONCLUSION OF LAW The Veteran's acquired psychiatric disorders, to include PTSD, were not incurred in or caused or aggravated by his military service, and a psychosis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects the Veteran was provided VCAA notice in March 2010 (and in March 2011 for the claim regarding anxiety), prior to the initial adjudication of the claims, that also included notice regarding the disability-rating and effective-date elements of his claims. The Board also finds VA has complied with its duty to assist the appellant in the development of his claims. In this regard, the Board notes that service treatment records (STRs) and pertinent post-service medical records have been associated with the electronic claims folder. As noted above, the Veteran testified before the undersigned in March 2013. Any deficiencies in development were addressed in the subsequent Board remand in May 2013. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that the Veterans Law Judge who conducts a hearing fulfill the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked). The Veteran has not been afforded a VA examination in regards to the etiology of the claimed disabilities on appeal, but as explained in detail below he has not presented a prima facie case for service connection and examination is accordingly not required at this point. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c) (4). See also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam). To present a prima facie case for service connection, requires (1) competent medical or objective lay evidence of a current disability and (2) competent medical or lay evidence of a disease or injury during military service. The claim at issue here turns on the question of whether there is an in-service stressor that may be verified. In response to the Board's remand, the Veteran was asked in August 2013 to submit additional information to allow development of his stressor allegations. The Veteran did not reply. Accordingly, a VA medical examination to determine the nature and etiology of the Veteran's claimed acquired psychiatric disorders is not necessary in this case. 38 C.F.R. § 3.159(c) (4). The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. Neither the Veteran nor his representative has indicated that there are any available, additional pertinent records to support his claim. The Board also is unaware of any such outstanding evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests a psychosis or neurological disorder to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), (f). At the outset, the Board notes the record does not establish the Veteran's participation in combat. Thus, the Board finds that the provisions of 38 U.S.C.A. § 1154(b) (West 2002) do not apply. The Board observes that effective July 12, 2010, the regulations governing adjudication of service connection for PTSD were liberalized, in certain circumstances, with respect to the evidentiary standard for establishing the required in-service stressor. However, the amendment does not apply to the Veteran's claims as he has not indicated fear of hostile military or terrorist activity. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the Veteran's electronic file. 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis The Veteran contends that he is entitled to service connection for his acquired psychiatric disorders as related to several alleged incidents during his service aboard the U.S.S. Monterey (CVL-26), a light aircraft carrier, from June 1954 to January 1956. He has reported observing deaths on the flight deck from propellers; seeing pilots miss the arresting wires and ditch into the sea, where some were killed as the ship passed; and hearing the screams of men trapped below decks when something struck the ship. Service treatment records are negative for any diagnosis, complaint, or abnormal finding pertaining to the Veteran's psychiatric health. A separation examination in October 1956 shows that the Veteran's psychiatric clinical evaluation was normal. The Veteran and his wife testified at a March 2013 hearing held before the undersigned via videoconference. The Veteran stated that he served as a yeoman in service and witnessed the in-service stressors described above while standing watch. As noted above, VA treatment records show that the Veteran has been diagnosed with depression, anxiety disorder, adjustment disorder, and in a July 2010 VA psychiatry medication management note "PTSD related to military trauma-- non-combat but witnessed multiple horrific accidents when working on aircraft carrier". Assuming, without conceding, that the diagnoses are adequate, there is, nevertheless, a need to corroborate the claimed stressors. 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 v. Brown, 10 Vet. App. 128 (1997). It bears emphasis that the sufficiency of a stressor is a medical determination and is presumed by a medical diagnosis of PTSD. Cohen. Nevertheless, the occurrence of a stressor is an adjudicatory determination. "Credible supporting evidence" is necessary to verify noncombat stressors and must be obtained from service records or other sources. 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 v. Brown, 9 Vet. App. 163, 166 (1996). Service medical records provide no evidence that the Veteran had poor psychiatric health. Moreover, as noted above, the Veteran was unable to furnish any specific details or accompanying time frames as to when the stressful events occurred and did not respond to specific requests in August 2013 to submit additional information to allow development of his stressor allegation. For the foregoing reasons, the Board finds that there is no credible corroborating evidence of the Veteran's claimed in-service stressors. In the absence of a verified stressor, diagnoses of PTSD are not sufficient to support the claim. An opinion by a mental health professional based on post-service statements by the Veteran cannot be used to establish the occurrence of the kind of stressors reported by the Veteran. The Board is not required to accept an unsubstantiated diagnosis that the alleged PTSD was related to military trauma. West v. Brown, 7 Vet. App. 70, 78 (1994). Since the Veteran's claimed stressors have not been verified, the diagnosis of PTSD was based on an unsubstantiated history that is inadequate for rating purposes, and may not be relied upon by the Board. Id. at 78. The Board has considered the Veteran's statements and acknowledges that he is competent to diagnose and report on simple conditions, to include psychiatric symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competency must be distinguished from credibility, and, in this instance, the Board finds that the Veteran's reports of developing a chronic psychiatric disorder as the result of service are not credible. In that regard, the Board acknowledges that the service treatment records are negative for any diagnosis, complaint, or abnormal finding pertaining to the Veteran's psychiatric health. He did not receive treatment until many years following service. In summary, there is no credible evidence of a chronic psychiatric disorder in service, and no credible evidence of a continuity of symptomatology since service. The reasonable doubt doctrine is not applicable in this case as the evidence is not evenly balanced. See 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs