Citation Nr: 1602264 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 12-05 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty from May 1980 to May 1983, with subsequent service in the Army National Guard. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The claim was previously before the Board in December 2013, at which time the Board found the Veteran had submitted new and material evidence sufficient to reopen his claim of service connection. The Board granted his petition to reopen and remanded the claim for additional development. Along with the paper claims file, this appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. A review of the Virtual VA system shows VA treatment records dated from April 2000 through October 2013. VBMS contains a November 2015 appellate brief. The remaining documents are either irrelevant or duplicative of documents contained within the physical claims file. Any future consideration of this case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. There is no credible, verified or verifiable in-service stressor on which a diagnosis of PTSD can be based. 2. A psychiatric disorder is not related to service. CONCLUSION OF LAW The criteria for a grant of entitlement to service connection for a psychiatric disorder, to include PTSD and major depressive disorder, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a) , 5103A; 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Compliant VCAA notice was provided in January 2009 prior to initial adjudication. The letters informed the Veteran of the information and evidence needed to substantiate his claims for service connection and notified him of the division of responsibilities in obtaining such evidence. The letters also explained how disability ratings and effective dates are determined. Therefore, the duty to notify has been met. Furthermore, the Veteran has not alleged any prejudice due to the timing or content of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as all identified and available post-service medical records, are in the claims file and were reviewed by both the RO and the Board in connection with this claim. The Veteran has not identified any additional available, outstanding records pertinent to the claim on appeal. The Veteran's service personnel records, including his National Guard records, are associated with the claims file. Additionally, all efforts made in order to obtain the information necessary to verify his alleged stressful events and his alleged service in the Persian Gulf. Regarding his alleged stressors, the AOJ sent the Veteran letters in January 2009, February 2009, April 2009, and May 2009 that requested information regarding his stressors. Although the Veteran provided information, the AOJ determined that submission to the United States Army and Joint Services Records Research Center (JSRRC) and/or the Marine Corps' or National Archives and Records Administration (NARA) records was not required as there was not enough information upon which to base meaningful research. In February 2011, the Veteran was contacted to clarify the dates of his National Guard service. The report of contact shows that the Veteran stated that he went to Saudi Arabia with the Illinois Army Reserves and that his unit no longer exists. The Veteran then stated that he was not on active duty when he was in the Persian Gulf and was not given a DD214 for that period. Furthermore, the AOJ obtained the Veteran's service personnel records from his National Guard service. The AOJ also contacted the Iowa National Guard to confirm Persian Gulf service. An August 2009 Report of Contact indicated that the National Guard did not find evidence of such service. Likewise, in in September 2009, the National Personnel Records Center (NPRC) also found there was no evidence of such service. The Veteran has not been afforded a VA examination. However, neither PTSD nor any other psychiatric disorder, nor symptoms thereof were shown in service, and there is no competent and credible evidence verifying his claimed in-service stressor. Significantly, the Veteran does not allege that his psychiatric disorder is due to any incident of service other than the claimed stressors, nor does he claim that he experienced symptoms of any psychiatric disorder during service. Accordingly, a VA examination and opinion is not required as there would be no incident during service to which an examiner could link any current psychiatric disorder. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Walker v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every Veteran's disability case"). The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claims on appeal. The Board also notes that actions requested in the prior remand have been undertaken. Additional VA treatment records were obtained and the case was readjudicated. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). II. Law and analysis Generally, service connection may be established for 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). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f) (2015). There are several avenues to document an in-service stressor, other than obtaining verification from the Joint Services Records Research Center (JSRRC) or other government records repository: an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; lay evidence of personal assault with appropriate corroboration; and a stressor related to Veteran's fear of hostile military or terrorist activity, with appropriate medical evidence. 38 C.F.R. § 3.304(f) (2015). Lay evidence may establish an alleged stressor may where: 1) the stressor is related to the Veteran's fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted 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; 3) the stressor is consistent with the places, types, and circumstances of the Veteran's service; and 4) there is no clear and convincing evidence to the contrary. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010), corrected by 75 Fed. Reg. 41 ,092 (July 15, 2010). Fear of hostile military or terrorist activity occurs where 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. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852. Lay evidence may also establish an in-service stressor if the evidence establishes that a 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. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(2). If there is no combat experience, or if there is a determination that the veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). A layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). A layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran alleges that he has PTSD due to combat experience. Specifically, in a February 2009 statement, the Veteran reported that he was around missile fire and a very stressful environment. He stated this his unit rolled through an area with a lot of dead and charred bodies. In a March 2009 statement, the Veteran reported high stress. He stated that he could see enemy vehicles in the distance, and that while observing movements, missiles came close to his positions. He stated that he could hear the missile coming in but could not tell from where. The Veteran stated that a round hit behind him, and he could only hear ringing. He stated that he made kills on enemy and that the blood and guts was too much. In a May 2009 statement, the Veteran reported that in January 1991, on the border of Saudi Arabia and Kuwait, while he was with the infantry battalion, he was ordered into position observing enemy movement. He stated that they began taking missile fire and then moved to a hidden position where they took heavy fire along the way which was so close it rocked the Hummer. The Veteran stated that no one was injured and that they got to position and returned fire per orders. The record, however, shows that the Veteran served on active duty from May 1980 to May 1983. He subsequently served with the Army National Guard from October 1984 to March 1992. However, an August 2009 formal finding by the Joint Services Records Research Center (JSRRC) coordinator shows that the Veteran did not join the infantry battalion unit until March 1992 and that there was no evidence of the Veteran serving in Southwest Asia. An Army National Guard annual statement shows that between September 28, 1990 and September 27, 1991, the Veteran served a maximum of 13 days on active duty. The NPRC and the National Guard indicated that the records did not support that the Veteran served in the Persian Gulf. VA has taken all necessary steps to verify the Veteran's dates of service and assignments. Despite these efforts, the evidence indicates that the Veteran did not serve in Saudi Arabia or anywhere in the Persian Gulf, either during January 1991 or at any other point during his military service. Additionally, the September 2011 report of contact shows that the Veteran's own statements have been inconsistent, in that he stated he was not on active duty when in Saudi Arabia. The record also contains diagnoses of PTSD related to the Veteran's claimed stressors. Post-service treatment records show that the Veteran has diagnoses of PTSD and major depressive disorder (MDD). In February 2010, a physician noted that the Veteran was a combat veteran of Desert Storm and was diagnosed with PTSD. An April 2010 treatment record shows that the Veteran reported military service from 1980-2001, with active duty from 1980-83, and then Guard service until 2001. The Veteran reported that he was activated for Gulf War in 1990 for 50 days serving in Iraq as a missile gunner, blowing up tanks and looking for survivors. The Veteran reported having distressing memories due to seeing a lot of blood and guts but he has difficulty specifying details. In a June 2010 treatment record, the Veteran reported nightmares and flashbacks of his Desert Storm experience. The Board finds that there is no in-service incident, to include the Veteran's alleged stressors. As noted above, the evidence of record demonstrates that the Veteran did not serve in the Persian Gulf. Furthermore, the Veteran's statements regarding the alleged stressors are competent, but not significantly credible. Although he stated that his stressors occurred while on active duty, this contradicts the objective evidence of record that he did not serve in the Persian Gulf. Additionally, the lay statements have diminished credibility as the Veteran reported both that he was activated for this service, but also that he was not activated and did not receive a DD-214 for this period of service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (noting that the Board can weigh conflicting statements of the veteran against a veteran's lay evidence); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (providing that the credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). The Board recognizes that the Veteran's VA treatment records show diagnoses of psychiatric disorders due to his claimed Gulf War service. Although the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993)(a medical opinion based on an inaccurate factual premise has no probative value). Therefore, although the Veteran has diagnoses of PTSD and depression, as his only claimed stressor or in-service event has not been substantiated and is found to be not credible, there is no basis for a finding of service connection. The Board has found the Veteran's claimed in-service stressor is inconsistent with the objective evidence of record and is also internally inconsistent. Accordingly, the Veteran has not shown a credible, verified or verifiable in-service stressor on which diagnosis of PTSD or major depressive disorder can be based. The Board has considered whether service connection is warranted absent verification of the claimed stressors. The Veteran's service treatment records are devoid of any evidence of complaints, diagnoses, or treatment for a mental health disorder, to include PTSD or depression. Additionally, the Veteran has not stated that he had any symptoms during service or that any other incident caused a psychiatric disorder. Therefore, there is no in-service event or injury to substantiate the Veteran's claim. Based on the evidence of record, the Board concludes the preponderance of the evidence is against the claim, and service connection must be denied. In reaching the above conclusion, 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 in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. 49, 55-56. ORDER Service connection for a psychiatric disorder, to include PTSD and depression, is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs