Citation Nr: 1707428 Decision Date: 03/10/17 Archive Date: 03/17/17 DOCKET NO. 12-05 796 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from May 1985 to November 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an July 2010 rating decision of the VA RO. Although a Veteran may only claim service connection for a particular psychiatric disorder, the claim cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board will consider entitlement to all psychiatric diagnoses raised by the record, and it has recharacterized the issue on appeal accordingly. The issues of entitlement to a rating in excess of 10 percent for a right hand disability and a rating in excess of 20 percent for a back disability were raised by the record in January 2017, but these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2016). FINDINGS OF FACT 1. The Veteran does not have a corroborated service stressor event to support a diagnosis of PTSD. 2. The Veteran's acquired psychiatric disorders did not originate in service, and are not otherwise etiologically related to service. CONCLUSION OF LAW An acquired psychiatric disability, to include PTSD, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has certain notice and assistance obligations to claimants. 38 U.S.C.A. § 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). In the instant case, the Veteran was provided with all appropriate notification in May 2010. The Veteran has not alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to this claim for benefits. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, private treatment records, and VA treatment records have been obtained. The Veteran has not been afforded a VA examination addressing his acquired psychiatric condition. No such examination is required. When determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2016). In this case, as discussed in greater detail below, there is no competent or credible evidence corroborating his claimed in-service stressors. There is no competent or credible evidence otherwise establishing a relevant event in service. A VA examination, which would be based on the examiner's consideration of the Veteran's claims file and the Veteran's own contentions, could not provide the corroboration necessary in order to verify the Veteran's claimed stressors. Accordingly, the Board finds that referral for a VA medical examination is not warranted. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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 for an Acquired Psychiatric Disorder The Veteran contends that he suffers from a psychiatric disability, to include PTSD, as a result of in-service incidents that will be discussed in greater detail below. As noted above, in order to establish service connection for a claimed disorder on a direct basis, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). More specifically, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (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) (2016). The evidence required to establish a claimed in-service stressor depends on the nature of both the stressor and the Veteran's service. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, the veteran's lay statements alone may establish occurrence of the claimed in-service stressor, in the absence of clear and convincing evidence to the contrary, as long as the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (2016); Zarycki v. Brown, 6 Vet. App. 91 (1993). Even without combat participation, if the Veteran's claimed stressor is related to "fear of hostile military or terrorist activity," and a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and 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 claimed in-service stressor. 38 C.F.R. § 3.304(f)(3) (2016). 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. 38 C.F.R. § 3.304(f)(3) (2016). If the claimed stressor does not involve either combat or the fear of hostile military or terrorist activity, then the Veteran's claimed stressors must be corroborated by evidence other than the claimant's own testimony or the diagnosis of PTSD itself. 38 C.F.R. § 3.304(f) (2016); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The occurrence of an event alleged as the stressor upon which a PTSD diagnosis is based, as opposed to the sufficiency of the alleged event to cause PTSD, is an adjudicative determination, not a medical determination. Zarycki v. Brown, 6 Vet. App. 91 (1993). Turning to the facts in this case, the Veteran has, since the time of his April 2010 claim, indicated that four stressors caused him to develop PTSD. The Veteran stated that he witnessed people getting shot while trying to climb the Berlin Wall. The Veteran stated that he was present at the April 5, 1986, bombing of the La Belle discotheque in West Berlin. The Veteran stated that he was present at a December 26, 1987, grenade attack at a U.S.O. Club in Barcelona, Spain. The Veteran lastly stated that he was present at the August 28, 1988, air show disaster at the Ramstein Air Base near the city of Kaiserslautern, West Germany. Upon review of the Veteran's service treatment and personnel records, the Board notes that the Veteran enlisted in active duty in the United States Air Force (USAF) in May 1985. In a May 1986 performance report, it was noted that the Veteran served as a Security Entry Controller with the 4393rd Security Police Squadron in Vandenberg Air Force Base, California, from May 1985 to May 1986. In a September 1986 performance report, it was noted that the Veteran served as a Security Entry Controller with the 4393rd Security Police Squadron in Vandenberg Air Force Base (AFB), California, from May 1986 to September 1986. The Veteran sought medical treatment throughout 1986, and consistent with the Veteran's personnel records, the treatment providers were from the Vandenberg AFB. In a September 1987 performance report, it was noted that the Veteran served as a Close Boundary Sentry with the 690th Electronic Security Wing in Tempelhof Central Airport in West Berlin from September 1986 to September 1987. The Veteran was on a temporary duty assignment at the 6914th Electronic Security Squadron at Sembach Air Base in Sembach, Germany from October 21, 1987, to November 4, 1987. In December 1987, the Veteran began training with the 7350th Security Police Squadron's Emergency Service Team. In an August 1988 performance report, it was noted that the Veteran served as a Close Boundary Sentry with the 690th Electronic Security Wing in Tempelhof Central Airport in West Berlin from September 1987 to August 1988. In an August 1989 performance report, it was noted that the Veteran served as a Security Specialist with the 690th Electronic Security Wing in Tempelhof Central Airport in West Berlin from August 1988 to August 1989. The Veteran's November 1989 service separation document shows that he received the USAF Achievement Medal, the USAF Good Conduct Medal, the USAF Longevity Service Award Ribbon, the Small Arms Expert Marksmanship Ribbon with One Device, the Occupation Medal, the USAF Training Ribbon, the USAF Outstanding Unit Award, the USAF Organizational Excellence Award, and the USAF Overseas Ribbon. Following service, in a December 1989 VA examination, the Veteran denied experiencing any psychiatric symptoms. While the Veteran described experiencing in-service incidents, such incidents are unrelated to the Veteran's current claim. The Veteran did not mention any of his currently-claimed stressors. Turning to an analysis of these facts, with respect to the Veteran's claimed stressor of witnessing the April 5, 1986, bombing of the La Belle disotheque in West Berlin, the Board notes that this stressor involves the fear of hostile terrorist activity. The Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. The Veteran's personnel records indicate that he was stationed in California from May 1985 to May 1986. The claimed stressor, which occurred in West Berlin when the Veteran was stationed in California, is thus inconsistent with the place of the Veteran's service in California, and it may not be established based on lay testimony alone. The Veteran has otherwise offered no evidence corroborating his presence at the April 1986 terrorist bombing. Similarly, with respect to the Veteran's claimed stressor of witnessing the December 26, 1987, grenade attack in Barcelona, Spain, the Board notes that this stressor involves the fear of hostile terrorist activity. The Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. In this case, the evidence indicates that the Veteran was stationed in West Berlin in December 1987, and the Veteran himself claims that he witnessed this event while on leave. The claimed stressor is thus inconsistent with the place of the Veteran's service at Tempelhof Central Airport in West Berlin, and it may not be established based on lay testimony alone. The Veteran has otherwise offered no evidence corroborating his presence at the December 1987 grenade attack. The Veteran's claimed stressors of witnessing the shooting of East Germans attempting to climb the Berlin Wall and the August 28, 1988, air show disaster at Ramstein Air Base involve neither combat nor the fear of hostile military or terrorist activity. These stressors must therefore be corroborated by evidence other than the Veteran's own testimony or the diagnosis of PTSD itself. In this case, the Veteran has not offered evidence corroborating his stressors, nor do his service treatment records refer to the claimed incidents or to psychiatric difficulties generally. The Board is unaware of any evidence VA can develop to show the Veteran's presence at the referenced events. Without any corroboration, the Board finds that the Veteran has not demonstrated that the claimed in-service stressors actually occurred. The Veteran is competent to give evidence regarding what he experienced in-service, such as recounting events that he witnessed or feelings that he experienced. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465 (1994). While the Veteran is competent to provide such evidence, in this case, the Veteran's stressors must be corroborated by evidence other than his own testimony. The Veteran has not offered corroborating evidence. Furthermore, even without such corroboration, the Board finds the Veteran's account of witnessing these events in-service to be implausible. The Board, as the fact finder, must determine the credibility of lay evidence. Culver v. Derwinski, 3 Vet. App. 292 (1992). It would be highly unlikely for the Veteran to have been present for three newsworthy events in-service (namely the April 1986 explosion, the December 1987 grenade attack, and the August 1988 Ramstein airshow disaster), particularly when none of the events occurred where he was stationed. Had the Veteran indeed been unfortunate enough to be present at these three events, the Board finds it to be unlikely that the record would be devoid of any evidence corroborating his presence. Merely knowing of the events, all of which are events covered by news agencies at the time, does not suffice to establish the Veteran's presence. The Board notes that the record contains a June 2010 opinion from a VA clinician linking the Veteran's PTSD to his in-service experiences. The question of whether the Veteran was exposed to a stressor in service under these facts is a factual one, however, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991). Whether a claimed stressor is of sufficient gravity to cause or support a diagnosis of PTSD is a decision that is medical in nature. Whether a claimed stressor actually occurred is a question of fact for adjudicators. The June 2010 VA opinion that suggests that the Veteran experienced an in-service trauma is based on the Veteran's own account of in-service stressors that are otherwise unverified. The VA opinion does not identify any specific supporting evidence corroborating the assertion that the Veteran witnessed the events that he has claimed to have seen. The Board therefore does not find that the opinion lends additional credibility to the Veteran's accounts of an in-service stressor. The Board accordingly finds that the Veteran has not demonstrated the existence of an in-service stressor. Therefore, the Veteran has not shown any in-service event, disease, or injury resulting in a disability that would be the precursor to establish service connection. The Veteran's claim for service connection for a psychiatric disability therefore fails on that basis. With regard to presumptive service connection based on the diagnosis of a psychosis within one year following separation from service, the Veteran was not diagnosed with any such disability within one year of separation from service. Accordingly, presumptive service connection is not warranted for any psychiatric disability. Accordingly, upon review of the entirety of the evidence of record, the Board finds that the weight of the evidence is against a finding that the Veteran experienced an in-service disease or injury. The Veteran's account of his in-service experiences is not credible. The evidence is against a finding that the claimed in-service stressful events occurred. Therefore, the Veteran's claim for service connection for a psychiatric disability, to include PTSD, fails on that basis alone. The Board finds that preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs