Citation Nr: 1410171 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 12-05 694 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for an innocently acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a December 2009 rating decision issued by the RO. The Veteran testified before the undersigned Veterans Law Judge in May 2013. He also testified at a hearing with a Decision Review Officer (DRO) at the RO in June 2011. FINDINGS OF FACT 1. The Veteran is shown to have been administratively discharged from service due to primary drug abuse. 2. The Veteran is not shown to have manifested complaints or findings referable to an innocently acquired psychiatric disorder including any manifested by depression during service or for many years thereafter. 3. The Veteran is not shown to have diagnosis of PTSD that can be linked to documented or verified stressor that happened during his period of active service or is caused by his fear of hostile military or terroristic activity incident to his service in Germany. 4. The Veteran is not shown to have an innocently acquired psychiatric disorder including any manifested by depression that had its clinical onset during service or otherwise can be related to an event or incident of his military service. CONCLUSION OF LAW The Veteran does not have an innocently acquired psychiatric disability manifested by PTSD or depression due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants with substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements of VCAA apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the duty to notify was satisfied by an August 2009 letter that was sent to the Veteran, which provided all of this information. Additionally, with regard to the duty to assist, the Board obtained all relevant evidence identified, including service treatment records, service personnel records, electronic and paper VA treatment records, written statements submitted by the Veteran and his relatives, and the transcripts of the Veteran's testimony at his June 2011 and May 2013 hearings. There is no indication that additional evidence exists that pertains to the Veteran's claim. The Board notes that service connection for PTSD in most cases requires both a diagnosis and a verified stressor. The Veteran's representative asserts that the duty to assist has not been fulfilled because insufficient steps were taken to attempt to verify the Veteran's alleged stressors. However, the Veteran has only generally identified four alleged stressors. First, he claims seeing a fellow service member attempt suicide, but does not know the name of this individual or whether he actually died. When he provided a name or partial name for searches, including searches of casualty lists, no information was found that corroborated the Veteran's account. The Veteran also reported that another soldier, possibly named "Fernandez," was shot and perhaps killed by a sniper while on guard duty. Again, searches were done, but no corroborative information could be found. The Veteran reported seeing another soldier being beaten to death, but was unable to provide any specifics whatsoever about this incident to enable any attempt to be made at verification. Finally, the Veteran reported being in Munich during the Olympic Games when Israeli athletes were shot by terrorists. However, on review, the Veteran's service personnel records clearly show that he did not arrive in Germany until after the summer 1972 Olympic Games had ended. The Veteran's representative argues that, because the Veteran was unable to identify the soldier who attempted suicide or was shot on guard duty, his unit records should be searched for references to these incidents in addition to checking casualty lists. However, a February 2012 memorandum from the RO clearly states that the Joint Services Records Research Center (JSSRC) had coordinated with the National Archives Records Administration (NARA) and was unable to locate copies of unit records pertaining to the Veteran's unit for the applicable time period. Under these circumstances, the Board finds that the effort made to verify the Veteran's claimed stressors, including reviewing service personnel records and casualty lists, as well as coordinating JSSRC and contacting with the US Army Crime Records Center for information were sufficient given the vague nature of the Veteran's statements. The efforts made to corroborate the vague and changing details supplied by the Veteran were exhaustive in this case. Absent additional specific information by the Veteran, the Board finds that any additional action that could be taken by VA to identify the Veteran's claimed stressors would be unavailing. The Board therefore finds that the duty to assist was satisfied in this regard. The Board also acknowledges that the Veteran has not been provided with a VA examination with respect to his case. However, there is no reasonable possibility that an examination would help in any way to substantiate the Veteran's claim given the current record. Duenas v. Principi, 18 Vet. App. 512 (2004). To the extent that the Veteran is claiming service connection for PTSD, there is no evidence other than the Veteran's own lay assertion to show that he experienced any traumatic event or documented stressor that would support a diagnosis of PTSD. Id. Lay testimony or statements alone are insufficient to establish the occurrence of a stressor that is unrelated to documented combat or fear of hostile military or terrorist activities in this case. See Dizoglio v. Brown, 9 Vet. App. 163 (1996). Moreover, while there is a medical opinion of record identifying a diagnosis of PTSD, it is shown to be based on the Veteran's unsubstantiated lay assertions about events in service. Id. To the extent that the diagnosis of PTSD is premised on his reported fear of hostile military or terroristic activity in connection with the Munch Olympics, obviating the need for a verified stressor, the Veteran's assertions cannot be substantiated because he was not present in Germany to witness any events as described. Accordingly, absent a verified or documented stressor in this case, an examination could not substantiate the Veteran's claim of service connection for PTSD. While service connection for mental disorders other than PTSD do not require stressor verification, as will be discussed, the Veteran's assertions about his service experiences to lack credibility and probative weight to relate the onset of any innocently acquired psychiatric to service. When the Board makes a finding that the lay evidence regarding an in service event is not credible, a VA examination is not required. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Thus, based on this record, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board thus finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of these claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection The Veteran contends that he developed PTSD and/or another innocently acquired psychiatric disorder as the result of his active service in Germany. He testified that he was traumatized by witnessing the attempted suicide of another soldier, by learning that a soldier on guard duty had been shot by a sniper, by witnessing a soldier getting beaten to death, and by having fear of terrorist attacks in connection with the Olympic games in 1972 in Munich. He also asserts becoming depressed because he suffered frostbite during service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, in the case of the chronic diseases set forth in 38 C.F.R. § 3.309, the requisite nexus may also be provided by evidence of continuity of symptoms. Walker v. Shinseki, 708 F.3d 1331 (2013). Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 CFR § 4.125(a), medical evidence linking current symptoms to an in service stressor, and, in some circumstances, credible supporting evidence that the claimed in service stressor actually occurred. 38 C.F.R. § 3.304(f). Prior to July 2010, the evidence necessary to establish that an in service stressor actually occurred depended upon whether the Veteran "engaged in combat with the enemy." 38 C.F.R. § 3.304(f); See also Hayes v. Brown, 5 Vet. App. 60, 66-67 (1993). If the evidence showed that the Veteran engaged in combat with the enemy or was a prisoner of war (POW) and the claimed stressor was related to those experiences, 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, his lay testimony alone was sufficient to establish the occurrence of the claimed in service stressor. If, however, the Veteran did not engage in combat with the enemy and was not a POW, or the claimed stressor was unrelated to the Veteran's combat or POW experiences, some evidence corroborating the Veteran's lay statements is required in order to establish that an in service stressor actually occurred. 38 C.F.R. 3.304(f)(2) (2009). The only other exception to the requirement for verification of an in-service stressor in effect at that time involved cases when the Veteran was diagnosed with PTSD during service and the claimed stressor is related to that service. In such cases, the Veteran's lay testimony alone are sufficient to establish the occurrence of the claimed stressor, absent clear and convincing evidence to the contrary, provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service. 38 C.F.R. 3.304(f)(1) (2009). However, in July 2010 the exceptions to the stressor verification requirement were changed. The current 38 C.F.R. § 3.304(f)(3) states: 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 or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support the diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and 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 in service stressor. For purposes of this paragraph, 'fear of hostile military or terrorist activity' means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. As noted previously, the Veteran's claim must fail because he does not have a verified stressor. To the extent that his contentions about the summer Munich Olympics constitutes fear of hostile military or terrorist activity, his statements are inherently not credible because the Olympics in Munich took place in 1972, prior to when the Veteran arrived in Germany, and not in 1973 as he claimed. The stressor most prominently identified by the Veteran is the alleged suicide or attempted suicide of another member of his unit. However, his description of this event has been inconsistent over time. Initially, when the Veteran filed his claim, he claimed that he was in another room when he heard shots and ran with other personnel to discover that a soldier had shot himself. Subsequently, in 2009, he told his treating psychiatrist at VA that he saw the soldier enter the barracks and shoot himself twice. At the time of his DRO hearing in June 2011, the Veteran testified that he spoke to the other soldier and did not know whether the other soldier was going to shoot him. He added that the soldier looked at him and then shot himself in the chest. It is clear that Veteran continued to embellish the story after he initially told it, and for this reason, as well as the Veteran's lack of veracity in other matters such as his claims about the Olympics, the statements are found to be of limited credibility. The Veteran also asserts that another soldier possibly named Fernandez was shot by a sniper while on guard duty and possibly died. However, searches by the RO of casualty lists did not find any "Fernandez" who died at the time and place specified by the Veteran. Later, the Veteran reported that he was not sure of the name or whether the soldier died. As noted, his reports have not been verified. Additionally, the Veteran first asserted that he was just upset that someone in his unit was shot, but later added that this person had replaced him on guard duty the night that he was shot. The Veteran also claims that he saw an unnamed soldier being beaten to death during service. However, he has provided virtually no details about this event, and to the extent that the story was rarely repeated, he did not address it with his treatment providers. If the Veteran had in fact witnessed a murder, this story in all likelihood would have been as prominent as his accounts about the alleged suicide and sniper incident. In any event, as previously noted, none of these reported incidents have been corroborated by action taken by the RO or independently verified by the Veteran himself. The Board acknowledges that his treating psychiatrist diagnosed PTSD related to military events, specifically the suicide or suicide attempt in service, but the credible supporting evidence of such a stressor cannot consist solely of after the fact medical nexus opinion. Moreau v. Brown, 9 Vet. App. 389 (1996). Rather, the record must contain service records or other corroborative evidence substantiating the Veteran's testimony or statements as to the occurrence of the claimed stressor. West (Carlton) v. Brown, 7 Vet. App. 70 (1994). Since none of the Veteran's claimed stressors can be found to be verified on this record, the criteria for the grant of service connection for PTSD cannot be met in this case. The Veteran is also diagnosed with depression that he tends to relate to events of service, including suffering frostbite of the feet in service. The Veteran's secondary service connection allegation is easily disposed of because he is not service connected for any disability related to the claimed instance of frostbite. With respect to the Veteran's claim that his depression started in service, the Board finds that the Veteran's current testimony about his in service experiences is not consistent with earlier statements made by him during service. The Board need not accept a non-combat veteran's lay statement that an event (as opposed to medical symptoms) actually occurred, even though there is no affirmative documentary evidence proving otherwise. Rather, all the evidence of record, including the absence of documentation, must be weighed. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, consistency with other evidence, malingering, monetary gain, and demeanor. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran's statements here are either facially implausible, consistent with stories that were embellished over time, or are so devoid of specifics as to lack credibility. Significantly, the Veteran had a psychiatric examination in service in November 1973, in connection with his administrative discharge. At that time, his behavior was normal, and he was noted to be fully alert and oriented with a level mood, clear thought processes, and normal thought content. There was no significant mental illness found. Significantly, the Veteran's medical records clearly document his abuse of illicit drugs during his period of active duty. A November 1973 document noted that "even though [the Veteran] ha[d] had extensive counseling on drug abuse, he continually use[d] it. Along with his drug abuse he ha[d] become a hazard to the military mission in his company and it [was] the opinion of his company commander and [the examiner] that he should be considered a rehabilitation failure." Later, it was stated that his staff sergeant "[felt] that he ha[d] given [the Veteran] every opportunity to change his drug habits. [It was felt] that [the Veteran] [would] not change and should be classified as a rehabilitation failure due to his recalcitrant attitude." Four positive urinalysis results were noted. When interviewed in December 1973, the Veteran reported that he began to use heroin in service two to three months after arriving in Germany. The diagnosis was that of drug abuse-opiates. In September 1973, the veteran had earlier admitted to using drugs prior to and during service. He told a health care provider that he thought he would quit opiates but that he would continue to use "hash." Significantly, the Veteran denied having depression or excess worry on his discharge examination in November 1973. His discharge examination noted numerous needle marks on both forearms. The Veteran reported that he still used drugs. It is significant to note in connection with the Veteran's reports of developing depression during service that primary substance abuse is not a disability for which service connection may be granted. 38 U.S.C.A. § 105, 1110; 38 C.F.R. § 3.1. While service connection for drug abuse may be granted on a secondary basis, the Veteran in this case is not service connected for any disability. The Board acknowledges the statements submitted by the Veteran's family members that, for the most part, discuss his behavioral changes that took place long after service. To the extent that the Veteran's sister stated that the Veteran was different after service because he was not as interested in going out and would stare at walls, this statement alone is not sufficient to relate the Veteran's behavior during and after service to anything other his primary abuse of drugs. Certainly, none of the lay evidence establishes that he developed an innocently acquired psychiatric disability manifested by depression during service. The Board has considered the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. ORDER Service connection for an innocently acquired psychiatric disorder, including PTSD and depression, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs