Citation Nr: 1628239 Decision Date: 07/14/16 Archive Date: 07/28/16 DOCKET NO. 13-17 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy during peacetime from February 1986 to August 1987, including thirteen months of sea service aboard the USS Henry B. Wilson. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2010 and July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The October 2010 rating decision confirmed and continued the previous denial of service connection for PTSD and denied service connection for bipolar condition. His notice of disagreement was received in February 2011 and a statement of the case was issued in February 2013. The Veteran perfected his appeal with regard to these issues by submitting a June 2013 VA Form 9. The July 2012 rating decision denied service connection for attention deficit disorder and denied TDIU. His notice of disagreement was received in June 2013 and a statement of the case was issued in November 2013. The Veteran perfected his appeal with regard to these issues by submitting a November 2013VA Form 9. In April 2015, the Board reopened the Veteran's claim of service connection for PTSD and remanded the underlying service connection claim and the issues of service connection for an acquired psychiatric disorder other than PTSD and TDIU for further development. In a December 2015 rating decision, the Veteran was granted service connection for an acquired psychiatric disorder to include panic disorder and unspecified bipolar and related disorder (claimed as bipolar disorder and attention deficit disorder). This is a complete grant of the Veteran's claim of service connection for an acquired psychiatric disorder other than PTSD. As such, that issue is no longer before the Board. The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT None of the Veteran's claimed stressors have been verified and the Veteran's reported stressors are not consistent with the places, types, and circumstances of his service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). In the instant case, VA provided adequate notice in a letter sent to the Veteran in August 2010, with additional notice in a letter sent to him in June 2012. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, VA, and private treatment records are associated with the claims file. VA provided a relevant examination in November 2015. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation, then offered an opinion as to the nature of the claimed disability, accompanied by a rationale. Unfortunately, this opinion was based on an unverified stressor. As the Veteran's service in the Persian Gulf predates the Persian Gulf War by several years, additional evidence was sought to verify whether the claimed stressors of attacks were consistent with the places, types, and circumstances of the Veteran's service. See 38 C.F.R. § 3.2(i)(dates of Persian Gulf War). An October 2015 Report of General Information shows that the Veteran was contacted in order to determine the appropriate period for gathering deck logs form the USS Henry B. Wilson to confirm his reported stressors of (1) being attacked by an enemy speed boat loaded with dynamite, (2) an explosion in the ship's boiler room that required extensive work for three days to keep the ship afloat; and (3) sent to support a cargo ship that was attacked by Iranians forces. See also July 2010 statement. The Veteran refused, stating that he wanted a decision to be made as soon as possible and did not want his appeal delayed by asking for those records. A claimant's cooperation is essential to the development of any claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). By declining to provide any information that would allow VA to verify his claimed stressors or his later claim of exposure to indirect fire while serving in the Persian Gulf the Veteran has frustrated development of his claim. See November 2015 VA Examination. The Veteran has not adequately explained his reported fear of hostile action during active service beyond his unverified stressors. Moreover, exposure to indirect fire during peacetime is inherently inconsistent with the places, types, and circumstances of the Veteran's service. As such, corroborating evidence is necessary this can be a basis of service connection for PTSD. The Veteran has not provided corroborating evidence or additional information that would allow VA to corroborate his reports, which has frustrated the purpose of the prior remand and medical opinion. As the Board cannot verify the premise upon which the November 2015 examiner based her positive nexus opinion, this opinion is not probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) ("An opinion based upon an inaccurate factual premise has no probative value."). An additional examination is not warranted, however, as any subsequent examinations would again rely on the Veteran's unverified reports and he has demonstrated an unwillingness to cooperate with the development of his claim. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Service connection - PTSD As an initial matter, the Board notes that several of the Veteran's private treatment records state that he served in the Gulf War. See e.g., March 2010, July 2011, and July 2012 private treatment records. The Board notes that the Persian Gulf War officially began on August 2, 1990, three years after the Veteran's separation from service. See 38 C.F.R. §3.2(i). Thus, to the extent that the Veteran's diagnosis of PTSD was based on the stressor of wartime service, these records are not probative. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection for PTSD generally requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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. See Cohen v. Brown, 10 Vet. App. 128, 139-43 (1997); 38 C.F.R. § 3.304(f). The Veteran's lay testimony alone can establish the occurrence of a claimed in-service stressor related to the Veteran's fear of hostile military or terrorist activity if a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, 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, provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 38 C.F.R. § 3.304(f)(3). The Board notes that the Veteran has claimed several in-service stressors including (1) being attacked by an enemy speed boat loaded with dynamite, (2) an explosion in the ship's boiler room that required extensive work for three days to keep the ship afloat; and (3) sent to support a cargo ship that was attacked by Iranians forces. See October 2015 Report of General Information; see also July 2010 statement; January 2015 statement. These stressors have not been corroborated. See June 2013 formal finding. Likewise, the record does not contain medical evidence linking any of these claimed stressors to a diagnosis of PTSD. Instead, the record contains a diagnosis of PTSD based on exposure to indirect fire during his Persian Gulf deployment aboard the USS Henry B. Wilson and/or due to fear of hostile action during active service. See November 2015 VA examination. This satisfies both the current diagnosis and medical link requirements for service connection of PTSD. With regard to the November 2015 examiner's opinion that the Veteran's PTSD is due to fear of hostile action during active service, the question becomes whether this claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. Again, the record shows that the Veteran served during peacetime. The record does not support the Veteran's fear of hostile military or terrorist activity in the absence of verification of his named stressors. In a January 2015 statement, the Veteran reported that his service aboard USS Henry B. Wilson in the Persian Gulf included being challenged by Iranian Naval ships without authority to fire unless fired upon. The Board takes notice of the fact that Iran makes up a significant part of the coastline of the Persian Gulf. Therefore, encountering Iranian Naval ships is consistent with service in the Persian Gulf. Encountering foreign ships, however, does not automatically give rise to the existence of a stressor. The Veteran did not clarify what he meant by being challenged by these ships and did not suggest that these ships ever fired upon his ship. Therefore, the record does not contain enough information to determine that his reported stressor, upon which the PTSD nexus opinion was based, is consistent with the places, types, and circumstances of the Veteran's shipboard service from July 1986 to August 1987, including time in the Persian Gulf. Rather, a reasonable inference from the peacetime nature of his service is that his reported stressor is not consistent with the places, types, and circumstances of his service. Turning next to the portion of the opinion linking the Veteran's PTSD to exposure to indirect fire, the Board finds no credible supporting evidence of this claim. As noted above, the prior remand instructed VA to obtain deck logs for the USS Henry B. Wilson for any time period identified by the Veteran, either explicitly or implicitly, to verify his claimed stressors. The October 2015 Report of General Information shows that the Veteran refused to identify the appropriate period for gathering deck logs, stating that he wanted a decision to be made as soon as possible and did not want his appeal delayed by asking for those records. Thus, as per the Veteran's request, no deck logs were obtained and this claimed stressor could not be verified. In January 2015 the Veteran submitted an internet article showing the USS Henry B. Wilson's deployments. According to this, the USS Henry B. Wilson was deployed to "Mediterranean - Indian Ocean - Persian Gulf" during the Veteran's service. While this serves to corroborate the Veteran's claim that his ship sailed in the Persian Gulf, it does not corroborate his report of exposure to indirect fire while there. Absent credible supporting evidence that the claimed in-service stressor occurred, service connection for PTSD is not warranted. See Cohen, 10 Vet. App. 139-43; 38 C.F.R. § 3.304(f). In light of the above, without a corroborating evidence of a claimed in-service stressor or a finding that a fear of hostile military or terrorist activity was consistent with the places, types, and circumstances of his service, the in-service stressor element of service connection for PTSD has not been met. Therefore, the Board finds that the preponderance of the evidence is against the claim for service connection for PTSD. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the Veteran's claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is denied. REMAND The Veteran is also seeking TDIU. Unfortunately, the record is incomplete. Specifically, the record does not contain employment information for any position that the Veteran has held since 2012. In a March 2016 statement, the Veteran reported that he last worked in 2012. This is inconsistent with private treatment records from March 2014, which, while noting the Veteran did not have a stable job or steady income, show that the Veteran had to reschedule his case management appointment because he was called in to work to cover for other employees. His rescheduled appointment a few days later shows his report of selling a car the week before. As the Veteran has previously worked as a car salesman, this record appears to show that he had returned to work in that capacity. The record does not contain any more details on this or any other job that the Veteran may have had during the appellate period. The record as it currently stands does not contain enough information to determine that the Veteran's employment in 2014 was anything other than substantially gainful, which would be strong evidence against his claim of unemployability. Nevertheless, the characterization of this as not a stable job or steady income suggests that the Veteran's work in 2014 may have only been marginal employment and would therefore not be a bar to TDIU. Therefore, the Veteran should be given another opportunity to provide relevant employment information including a VA 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, completed by his employer in 2014. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete another VA 21-8940, Veterans Application for Increased Compensation Based on Unemployability, reflecting all employers since September 2012, specifically to include his employer in March 2014. 2. For each employer identified, obtain a VA 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. 3. After ensuring that the above development is completed and adequate, readjudicate the Veteran's claim for TDIU. If the benefit sought on appeal is not granted, the Veteran should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be (CONTINUED ON NEXT PAGE) handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs