Citation Nr: 1631521 Decision Date: 08/09/16 Archive Date: 08/12/16 DOCKET NO. 09-37 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for PTSD. 2. Entitlement to service connection for an acquired mental disorder other than PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION As a member of the U.S. Army Reserve, the Veteran served on active duty training from October 1981 to February 1982, and on active duty from February 1991 to July 1991. This appeal to the Board of Veterans' Appeals (Board) arose from September 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Cleveland, Ohio that denied entitlement to service connection for PTSD. The Veteran's claim for service connection for an acquired mental disorder is deemed to encompass all psychiatric diagnoses. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Hence, the Board has styled the issues of the case as reflected on the title page. A May 2012 rating decision granted service connection for chronic sinusitis with an assigned initial noncompensable rating, effective in October 2010, which the Veteran appealed. A September 2014 rating decision granted an initial compensable rating of 10 percent, effective November 12, 2013; and the Veteran continued his appeal for a compensable rating prior to that date, as well as a rating higher than 10 percent going forward. See AB v. Brown, 6 Vet. App. 35 (1993) (a veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise). A Statement of the Case (SOC) was issued in February 2016. There is no indication in the claims file that the Veteran perfected the appeal by submission of a Substantive Appeal. See 38 C.F.R. § 20.200 (2015). Further, the RO has not certified the issue to the Board. Hence, the issue of the initial rating for chronic sinusitis is not before the Board and will be addressed in the decision below. In May 2016, the Veteran appeared at a Board hearing at the RO via video conference before the undersigned Veterans Law Judge. A transcript of the hearing testimony is in the claims file. The undersigned held the record open for receipt of additional evidence. To date no additional evidence has been received. The issue of entitlement to service connection for an acquired mental disorder other than PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The weight of the evidence shows that there is no verified in-service stressor to which a diagnosis of PTSD may be linked. CONCLUSION OF LAW The requirements for entitlement to service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.304(f) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There is no issue as to providing an appropriate application form or completeness of the application. Prior to issuance of the September 2007 rating decision, via a June 2006 letter, the RO provided the Veteran with time- and content-compliant VCAA notice. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 C.F.R. § 3.159(b)(1). Further, neither the Veteran nor his representative has asserted any notice error or prejudice as a result. Hence, the Board finds that VA complied with the VCAA notice requirements. See Shinseki v. Sanders, 556 U.S. 396 (2009). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs), military personnel records (MPRs), VA and non-VA treatment records are in the claims file. Neither the Veteran nor his representative asserts that there are additional records to be obtained. The Board notes that the Veteran was not afforded a VA examination in conjunction with the adjudication of his PTSD claim. Nonetheless, the Board finds no failure to assist the Veteran. VA will provide a medical examination or obtain a medical opinion where there is insufficient competent medical evidence to make a decision on the claim but: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; and, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board finds that the second elements is not present. Due to the unique proof elements of PTSD, as discussed later in this decision, the Board finds that VA's duty to provide an examination is not triggered. The fatal missing element is that the Board finds that there is no credible support evidence of an in-service stressor. See 38 C.F.R. § 3.304(f). In the absence of a in-service stressor, there is no factual basis for an allowance of service connection for PTSD. Id. Hence, a remand for an examination would serve no useful purpose. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that affects the fairness of this adjudication. Hence, the Board may consider the merits of the appeal without prejudice to the Veteran. Service connection - General Requirements To establish a right to compensation for a present disability, the evidence must show: (1) a present disability; (2) an 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); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are particular requirements in 38 C.F.R. § 3.304(f) for establishing PTSD that are separate from those for establishing service connection generally. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010) ("Simply put, while section 3.303 mandates that there be a link between a current disability and military service, section 3.304(f) sets forth the evidence necessary, in the context of claims for PTSD disability compensation, to establish that link."). Entitlement to service connection for PTSD 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. 38 C.F.R. §§ 3.304(f) and § 4.125 (requiring PTSD diagnoses to conform to the Diagnostic and Statistical Manual of Mental Disorders-5 (DSM-5) as the governing criteria for diagnosing PTSD. The Board must fully consider the lay assertions of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (stating that a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F. 3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. 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. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Discussion On his June 1991 Report of Medical History for his physical examination for demobilization, the Veteran denied any history of trouble sleeping, worrying or depression. The June 1991 Report of Medical Examination For Demobilization reflects that the Veteran's psychiatric area was assessed as normal. (08/28/2006 VBMS-STR, pp 6-12) A June 2006 private report of E.A., PhD, reflects that, based on the interpretation of the Veteran's responses on a Minnesota Multiphasic Personality Inventory-2 (MMPI-2), he was diagnosed with major depression, panic disorder without agoraphobia, and PTSD. Dr. A opined that the diagnosed disorders were secondary to the Veteran's service in Desert Storm. (06/21/2006 VBMS-Medical Treatment-Non-Government Facility) The Veteran's stressor statements on which he initially based his claim asserted that in March 1991 he witnessed a motorcycle accident outside Ft. Campbell, Kentucky in which a friend he had just met was decapitated. (08/28/2006 VBMS-VA 21-0781). Following the private diagnosis in 2006, the Veteran started private therapy. The notes of the overseeing psychiatrist and the therapist reflect that the Veteran reported the pressure he served under while in active service. He reported that there were individuals who were out to get him, and that he was brought up on charges for an offense he did not commit. The notes reflect that the Veteran's reports were vague and lacked reasons for the claimed wrongs he reported. (08/28/2006 VBMS-Medical Treatment-Non-Government Facility). The Veteran included similar information in a statement submitted in support of his claim. (08/28/2006 VBMS-VA 21-4138). In May 2007, the Veteran provided the name of the friend reportedly killed in KY. (05/18/2007 VBMS-VA 119). The RO's research revealed that the named friend was in fact killed in a motor vehicle accident, but the accident occurred in Saudi Arabia, not KY. Further, the friend was killed when the Humvee he was in collided head-on with a tractor-trailer. (08/13/2007 VBMS-Military Personnel Record) In response to a RO inquiry, the U.S. Army and Joint Services Records Research Center (JSRRC) reported that its search of available records revealed two fatal accidents in KY in March 1991: a staff sergeant in early March 1991, and a major in late March 1991. The report noted only that the accidental deaths occurred in KY. It did not indicate that they occurred near Ft. Campbell. (09/24/2007 VBMS-DPRIS) At the hearing, the Veteran testified that his primary military stressor was being court-martialed for an offense he did not commit. He testified further that his trial was part of pressure to silence him because he was aware that certain individuals had stolen lumber. Thus, according to the Veteran, he was told that "they were out to get him." The Veteran testified that certain persons in his chain of command told him that "they" could put him out of the service if they wanted to, and that he was punished for disciplinary infractions while others went unpunished. The Veteran testified that after he was told that "they" were out to get him, he purchased a handgun, and he slept with a knife and a gun under his pillow. He lived in the barracks. The Board finds three facets of the Veteran's testimony salient. First, the Veteran testified that he witnessed the first accident, the one in which his friend was killed, from a distance. It was later that someone told him that the person he had not been long ago met was killed. Second, the Veteran was vague about the second accident, even in response to the undersigned's question to ascertain the source of the claimed trauma. Third, the Veteran never explained just how he was to be gotten. The undersigned specifically asked the Veteran if he was threatened with violence by anyone. He responded that he was threatened with disciplinary action to not talk about the lumber-stealing incident. (05/20/2016 VBMS-Hearing Testimony, pp. 9, 16) The Veteran was convicted by special court-martial in May 1991 of a one-day AWOL and disobedience of a superior noncommissioned officer. He was reduced in grade, ordered to forfeit pay for one month, and restricted to the limits of his company area and the place of worship for a specified period. (04/18/2007 VBMS-Military Personnel Record, p. 13) The stress of awaiting trial by court-martial, or the trial itself, is not a traumatic stressor. See DSM-5. In August 2009, the Veteran submitted a receipt for purchase of a .380 caliber weapon in April 1991. (08/09/2009 VBMS-Financial Actions) The Board also notes the Veteran's submission of what appears to be a diary of instances of troops being disciplined or committing infractions and not being disciplined. (08/28/2006 VBMS-Correspondence) Nonetheless, due to the inherent inconsistences in the Veteran's reports, and the vagueness of responses, the Board finds that the Veteran's lay assertions are outweighed by the other evidence of record. Despite his protestations of innocence, he was in fact convicted by the court-martial. As noted earlier, the Veteran's claimed death of a friend occurred in Saudi Arabia. He could not have witnessed it, as he never left the CONUS during his tour of active duty in 1991. When given the opportunity to connect the "second accident" with his claimed stressors at the 2016 Board hearing, the Veteran responded with vagueness-"it seemed like every month something was happening." (Tr. at 9.) As concerns Dr. A's nexus opinion, the opinion states in part that the Veteran's diagnoses were connected with his service in Desert Storm. The Board notes that, until late in the development of the Veteran's claims, if his written submissions were not read closely, it appeared that he asserted that he served in Southwest Asia (SWA) during his 1991 tour. His unit deployed, but he did not. He confirmed that he did not serve in SWA, and he reported that he based a claim of entitlement to service connection for Gulf War Illness on the immunizations he received for his activation in 1991. (05/06/2013 VA 21-0820) In light of the foregoing, the Board finds that this non-combat Veteran's lay statements, when weighed against the other evidence of record, does not credibly support his claimed in-service stressors. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (stating that a non-combat veteran's lay statements must be weighed against other evidence, including the absence of military records supporting the veteran's lay assertions). In sum, the Board finds that the preponderance of the evidence is against the verification of the Veteran's claimed stressors. As such, the in-service incurrence of a disease or injury element for service connection has not been established; service connection for PTSD is not warrented. 38 C.F.R. §§ 3.303, 3.304(f). ORDER Entitlement to service connection for PTSD is denied. REMAND Although the Board found the Veteran's claimed in-service stressors for PTSD are not verified, there still is lay and medical evidence of a causal nexus between the Veteran's diagnosed depression and panic disorder and his active service. Hence, the Board finds that VA's duty to provide an examination has been triggered as to those acquired mental disorders. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159(c). Additionally, any relevant VA treatment records on remand should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain all relevant treatment records generated since the February 2016 Supplemental SOC (SSOC). 2. After the above is complete, regardless of whether records are added to the file, arrange an examination of the Veteran by an appropriate mental examiner. The examiner is asked to identify all current psychiatric diagnoses, including personality disorders. In identifying all current psychiatric diagnoses, please consider medical and lay evidence dated both prior to and since the filing of the May 2006 claim for service connection for a psychiatric disorder. Is there at least at least as likely as not (a 50-percent or greater probability) that any currently diagnosed acquired mental disorder other than PTSD is etiologically related to the Veteran's active service? [Please noted that a June 2006 private report of E.A., PhD, reflects that, based on the interpretation of the Veteran's responses on a Minnesota Multiphasic Personality Inventory-2 (MMPI-2), he was diagnosed with major depression and panic disorder without agoraphobia. As such, an opinion must be provided for each of these psychiatric disorders.] The lay evidence of record must be considered. A comprehensive rationale for all opinions rendered must be provided. 3. After all of the above is complete, readjudicate the issue considering all relevant evidence. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a SSOC. Then, return the case to the Board. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ PAUL SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs