Citation Nr: 1615257 Decision Date: 04/14/16 Archive Date: 04/26/16 DOCKET NO. 10-33 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), claimed as anxiety disorder. REPRESENTATION Veteran represented by: Robin E. Hood, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1980 to March 1985. This appeal is before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In February 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. In April 2013, the Board remanded the Veteran's appeal with instruction to obtain the Veteran's service personnel records, provide proper notice, and undertake the appropriate development to verify the stressors underlying the Veteran's PTSD claim. Notice was provided to the Veteran in October 2013. Attempts were made to obtain the Veteran's service personnel records, but in January 2015 the National Personnel Records Center (NPRC) notified VA that it was unable to locate the Veteran's records. In July 2015, VA issued a formal finding of a lack of information required to verify stressors in connection with the Veteran's claim. The Board is therefore satisfied that the instructions in its remand of April 2013 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT No event, injury, or disease related to an acquired psychiatric disorder occurred in service. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letters dated January 2008 and October 2013. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA medical records have been obtained, as have relevant records from the Social Security Administration (SSA). The Veteran has not been provided with a VA examination. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As explained below, the Board finds that there was no event, injury, or disease related to an acquired psychiatric disorder that occurred in service, and VA therefore has no duty to provide a medical examination. Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Merits The Veteran claims service connection for an anxiety disorder. 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). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as psychosis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for PTSD requires: (1) a diagnosis of the disorder made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-5); (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), 4.125(a). 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 a veteran's fear of hostile military or terrorist activity, with appropriate medical evidence. 38 C.F.R. § 3.304(f). Lay evidence may 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). In determining whether service connection is warranted for a disability, 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records do not reflect any mental health symptoms or diagnoses, although in October and November of 1984 the Veteran sought advice concerning a custody problem and counseling for marital issues in the mental health clinic. A July 1983 treatment record reflects that the Veteran was treated for a blow to the left side of the head after being hit by a motorized tricycle. VA treatment records reflect that in September 2005 the Veteran reported emotional problems going back 20 years to divorce, and more acutely within the past four years. He said he had nightmares about dealing with trauma victims when he was stationed in the Philippines. He was diagnosed with alcohol and cannabis abuse, chronic major depression, probable psychosis, and probable panic disorder. In October 2005, he reported rapid heartbeat, inability to sleep, and auditory hallucinations. He reported flashbacks of his military service, specifically difficult times working with civilians in the Philippines. He was diagnosed with major depression and substance abuse, rule out PTSD. In November 2005 his addiction therapist diagnosed alcohol dependence, history of cannabis abuse, major depression, PTSD, and panic disorder. At a November 2005 psychiatric consultation, the Veteran reported that while in the Philippines he was tied up and robbed at gun point by members of the New People's Army; the police chased them off and he was flown out that night. He also reported that a man who broke into his house in the Philippines was killed by the police and hung over his fence as an example to others. He further reported a stressor of performing an autopsy on a ten-year-old girl while in the Philippines. His psychiatrist diagnosed alcohol dependence; panic disorder with agoraphobia, rule out substance induced versus independent; dysthymia, rule out substance induced versus independent; bereavement; and rule out PTSD. VA treatment records further reflect that the Veteran next sought mental health treatment in April 2006, requesting a new psychiatrist after skipping several prior appointments. He reported panic attacks and that he does not like being around people. He reported that he had been unemployed and homeless since being discharged from prison one year prior. He was diagnosed with panic disorder with agoraphobia and alcohol dependence in early remission. In May 2006, he was diagnosed with moderate major depressive disorder, panic disorder with mild agoraphobia, and alcohol dependence in early remission. In his January 2008 claim, the Veteran reported that his anxiety disorder began in September 1984. VA treatment records show that in June 2008, the Veteran sought a Valium prescription, reporting fighting sleep for fear of nightmares and hearing threatening voices. In September 2008 he reported sleep difficulties and being haunted by the autopsy he performed while in the Philippines, as well as guilt over something he had done in the past. He was diagnosed with PTSD with panic attacks, depression, psychosis, and generalized anxiety disorder. In a statement accompanying his July 2009 notice of disagreement, the Veteran reported that he was stationed in the Philippines when it was under martial law. He stated that American troops were being killed by the New People's Army, and they were instructed not to wear their uniforms off base. He stated that two thirds of the island was "black flagged" and not allowed for travel. His duty was advanced trauma support and plastic surgery, which involved going through those areas, where he witnessed death. He stated that the Filipino police killed a burglar in his house and hung him over his fence. He also said he saw a ten-year-old girl with her head cut off. He reported that one day he was held up at gunpoint by Filipino gang members who broke into his house for money. The Filipino police ran the gang members off, according to the Veteran, and the American military police then picked him up and flew him to Hawaii that night. In his June 2010 substantive appeal, the Veteran stated that much of his service medical records were kept with his flight medical files due to his duties in the field, and had therefore not been obtained by VA. VA treatment records reflect a gap in treatment until September 2011, at which time the Veteran reported PTSD with nightmares, flashbacks, and social isolation. He was diagnosed with PTSD. In October 2011 the diagnosis was updated to PTSD with anxiety, insomnia, and flashbacks. Symptoms were unchanged in February and April of 2012. At his February 2012 hearing, the Veteran reported that the incident in which he was held up at gunpoint in the Philippines occurred in 1985. He could not be more specific when pressed, stating that he could not remember when. Later in the hearing, however, he stated that he served in Mississippi for one year after returning from overseas, which would put the incident in late 1983 or early 1984. The Board notes that the Veteran was in the Philippines in May 1984 but transferred to Mississippi by August 1984, according to his service treatment records. At his hearing, the Veteran further stated that he received medical treatment in Luzon after the incident before being flown to Hawaii. He stated that he was evacuated from the Philippines because there was a risk that his assailants would come back and kill him. VA treatment records reflect that the Veteran reported a worsening of symptoms in November 2012, attributed in part to the recent death of his brother, and was diagnosed with increased depression and anxiety due to poor medication compliance. VA treatment records reflect that in November 2013 the Veteran returned seeking treatment. He reported experiencing trauma in the Philippines, but his psychiatrist noted that he was not clear what the trauma was. He stated he was hit on the head multiple times by guerilla fighters. He reported intrusive thoughts, daily nightmares, hypervigilance, easy startle, and insomnia. His psychiatrist found symptoms suggestive of PTSD, psychotic disorder, and anxiety disorder, and noted that depression symptoms may be secondary to hypothyroidism. There was no subsequent treatment until June 2014, at which time the Veteran requested prescriptions. When confronted with his current prescriptions, he walked out of the appointment. His psychiatrist diagnosed benzodiazepine dependence. In July 2015, VA issued a formal finding on a lack of information required to verify stressors in connection to the Veteran's PTSD claim. Specifically, VA found that the Veteran had been requested to provide date ranges and locations for his claimed stressors which occurred in the Philippines, but he had provided no response. VA noted that efforts had been made to obtain the Veteran's service personnel files, but they were unable to be located. The evidence on record thus did not provide sufficient detail to warrant a request to JSRRC. In a September 2015 appellate brief, the Veteran's representative argued that the Veteran's stressor was related to his fear of hostile military or terrorist activity, and that his lay testimony alone was sufficient to establish the stressor along with a PTSD diagnosis by a VA psychiatrist under 38 C.F.R. § 3.304(f)(3). The representative supported this argument with detailed information about the terrorist situation in the Philippines during the time of the Veteran's service. Alternatively, the representative argued that if the assault claimed by the Veteran does not constitute terrorist activity, he is entitled to review under a claim for PTSD based on personal assault under 38 C.F.R. § 3.304(f)(5). The representative claimed that the Veteran's marital troubles and transfer to Mississippi constitute markers of the stressful incident. As a third alternative, the representative argued that the Veteran's psychiatric disability may be secondary to his in-service head injury. In a statement accompanying his September 2015 appellate brief, the Veteran again described his claimed assault incident. He stated that the New People's Army took over his home, kept him hostage, duct taped him, tormented him, and beat him. He stated he was hit in the head with the butt of an M-16 rifle about a half dozen times until he lost consciousness. His friend came by that evening and knew that something was wrong, and called the police. One of his abductors was killed, one arrested, and the third got away. American military police then arrived, took him for medical help, and flew him to Hawaii that evening. The Board finds that the evidence weighs against a finding that an event, injury, or disease related to an acquired psychiatric disorder occurred in service. Specifically, the Board finds that the Veteran's statement regarding the stressors he experienced in the Philippines are lacking in credibility. The accounts of the incident in which he was attacked in his home are inconsistent, where in some versions the assailants are members of the New People's Army and in other versions they are Filipino gang members. Furthermore, the Board finds it highly unlikely that the Air Force would feel the need to evacuate a medic from the country because they feared for his life after the occurrence of what was supposedly a random robbery. The Board recognizes that the Veteran's service personnel records were unable to be located, but his service treatment records appear to have detailed accounts of his treatment while he was stationed in the Philippines. Nowhere do the records support the occurrence of such a traumatic incident, despite the Veteran's claims that he received medical treatment after the incident, and his inability to remember such details as time and place of this incident do not bolster his credibility. The general vagueness of his other stressors, including the autopsy and the other burglar killed by police, is such that the Board likewise finds the accounts to lack credibility. The Veteran's representative argues that his lay statements are sufficient to establish such stressors under 38 C.F.R. § 3.304(f)(3), but the regulations do not mandate that the Board finds such statements credible. Likewise, the markers of a stressful incident cited by the Veteran's representative - marital troubles and transfer to Mississippi - do not bolster the credibility of the Veteran's account of his assault, be it by gang members or terrorists. The Board likewise finds the evidence weighs against a finding that any acquired psychiatric disorder is related to the Veteran's in service head injury. As discussed above, the Board does not find credible the Veteran's statements that he was struck on the head by members of the New People's Army. His service treatment records, however, do indicate an acute head injury. There is no indication of lasting symptoms in the records, though. Furthermore, the Veteran has been diagnosed by numerous VA psychiatrists, all of whom attribute the Veteran's mental health problems unrelated to in-service physical trauma. The evidence supports such etiology. To the extent mental health professionals ascribe the Veteran's psychiatric symptoms to the Veteran's claimed in-service stressors unrelated to physical trauma, the Board also emphasizes that it does not find such claimed stressors credible. For these reasons, the Board finds that the evidence weighs against a finding that an event, injury, or disease related to an acquired psychiatric disorder occurred in service, and service connection must therefore be denied. ORDER Service connection for an acquired psychiatric disability, to include PTSD, claimed as anxiety disorder, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs