Citation Nr: 1752003 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-33 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Anderson, Counsel INTRODUCTION The Veteran had active military service from October 1980 to October 1983. This claim comes to the Board of Veteran's Appeals (Board) on appeal from a November 2009 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge in July 2012. This claim was remanded by the Board in March 2017. The requested development was completed by the RO and with no further action necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's diagnosis of PTSD is not based upon a confirmed stressor. 2. The Veteran's currently diagnosed acquired psychiatric disabilities, other than PTSD, were not manifested in active service; any current psychiatric disabilities are not otherwise etiologically related to such service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. 1110, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2017). 2. An acquired psychiatric disability was not incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserted entitlement to service connection for an acquired psychiatric disorder, to include PTSD. During the course of his claim and subsequent appeals, the Veteran has offered several different theories of entitlement for service connection for PTSD. Service connection for PTSD, in particular, requires: [1] a current medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125 (a) (i.e., DSM-V, presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor), [2] credible supporting evidence that the claimed in-service stressor(s) actually occurred, and [3] medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304 (f); see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The Veteran provided VA treatment records showing treatment for PTSD and a major depressive disorder based on an MST since 2009. The most recent VA examination, conducted in June 2016 with an addendum opinion in June 2017, did not continue the Veteran's PTSD diagnosis and diagnosed the Veteran with unspecified anxiety disorder. The Veteran's claim for service connection for PTSD is predicated partially on sexual assault (also known as military sexual trauma (MST)). In regard to personal assault and MST, VA recognizes that, because these events are a personal and sensitive issue, many incidents are not officially reported, which in turn creates a proof problem in establishing they did. It is not unusual for there to be an absence of service records documenting the events a veteran has alleged. Therefore, evidence from sources other than a veteran's service records may corroborate an account of a stressor incident that is predicated on a personal assault or MST. 38 C.F.R. § 3.304 (f)(4) (2017). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in the mentioned sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The Court of Appeals for Veterans Claims held that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations, and are binding on VA. YR v. West, 11 Vet. App. 393, 398-99 (1998). The Veteran reported a stressor during his July 2012 Board hearing that he witnessed a motorcycle accident during service in which his friend (S.C.) died. The Veteran testified in 2012 that S.C. was killed on his motorcycle and the Veteran and another service member friend (J.F.) "were in my car" at the time. When his representative asked during the hearing, "Were you with him? You saw the accident?" the Veteran responded, "We were - yes, we were." The representative summarized shortly thereafter that there was "an accident where [the Veteran's] friend was killed and [he] witnessed that." Later, in a January 2014 statement, the Veteran described his close relationships with S.C. and J.F., but he stated, "The day he died I was told he crashed his motorcycle into a parked car...." This description directly contradicts the Veteran's initial testimony in July 2012 that he was present and saw the accident occur. In a May 2016 remand, the Board resolved doubt in the Veteran's favor, citing to certain evidence as indicated above, and found that an asserted stressor related to the death of S.C. had been verified. However, upon further review of the claims file, the Board now finds that the Veteran's reported stressor of witnessing a motorcycle accident in which S.C. was killed has not been verified and is not credible. This is in part because additional evidence may be received or reviewed after remand development. If additional pertinent evidence is obtained upon remand, as was done in this case, this finding may be revisited. The current evidence shows that the Veteran has made directly contradictory reports and objective military information conflicts with his asserted stressor. Although he is competent to make such reports, other evidence is more probative and he is not credible in this regard. Although the Veteran and S.C. were assigned to the same ship at the time of S.C.'s death, evidence of record shows that the ship was not in San Diego at the time of S.C.'s death, and there is no indication that the Veteran was on leave or in San Diego at that time. A September 2014 letter from the Naval Safety Center indicated that S.C. was killed on June 11, 1983, from injuries sustained as the driver of a motorcycle and he died at a hospital in San Diego, California. Command Histories from 1980 to 1983 for the ship to which the Veteran and S.C. had been assigned, the U.S.S. Buchanan (DDG-14), indicate that she was moored in San Diego for several months in 1982 and 1983, but the ship deployed from San Diego on March 21, 1983, was in Okinawa harbor by June 3, 1983, and was in-port at Subic Bay in the Philippines by June 30, 1983. Thus, the ship to which the Veteran was assigned was not in the San Diego area on the date of S.C.'s death of June 11, 1983, or indeed for 2-3 months prior to that date. This history would be consistent with the Veteran's 2014 report that he "was told" that S.C. had crashed and died. The Board finds the objective military records as summarized above to be more probative than the Veteran's conflicting reports for his VA compensation claim, and the currently available evidence shows that he is not credible as to having witnessed S.C.'s death or the motorcycle accident that caused that death in June 1983. As such, this stressor has been verified as being not credible and as such cannot be used as a part of a successful claim for service connection for PTSD The Veteran has described several in-service stressors, in addition to the one referenced above. In his claim received in January 2009, the Veteran asserted that he has PTSD with symptoms related to being Medevac'd off the fantail of a ship for an emergency appendectomy, which occurred in August 1983 as reflected in his service records. The Veteran also reported this stressor subsequently for his claim, along with details generally indicating that he felt out of control and very frightened of falling into the ocean as the stretcher was being taken up to the helicopter. The Veteran has also asserted at times that he was traumatized during treatment for acute appendicitis on the ship prior to being Medevac'd, in that his friend (J.F.) with whom he would "party" frequently was tasked with putting a tube down his throat, this took several attempts and was painful, and he was taken through small corridors on the ship. The Veteran has also described several stressors related to his general duties as a radioman and being at sea on a guided missile destroyer. He indicated that he was bothered or felt overwhelmed by the hectic pace on the ship and by rough seas, including always being frightened on the ship and afraid of drowning or dying. The Veteran described experiencing bad storms and waves coming onto the ship while on deck, dangerous events of refueling next to other ships in rough seas, incidents where men would roll and almost fall overboard with injuries at times, and having to climb up a small ladder in rough seas to check equipment. The Veteran also indicated that he would hear a lot of distressing news through his duties as a radioman, such as accidents, injuries, and deaths occurring on other ships, and that it bothered him not being able to talk about some of those incidents to others. The Veteran submitted incident reports as to injuries and deaths on other ships in November 1982 and June 1983, and an April 1983 notice of ship damages from high winds. In addition, the Board notes that the Veteran has referenced combat at times. An April 2009 VA treatment record reflects that he reported that he "[s]aw [a] ship in front of him get hit in combat, saw a lot of dead bodies," and more vaguely that he "had friends in the Navy and they died." A December 2009 private treatment record then reflects that the Veteran reported his ship was "being fired upon and returned fire" at the time he had acute appendicitis in August 1983. Despite these reports, the Veteran expressly denied being involved in combat at other times, he did not receive any combat-related decorations, and his service from 1980 to 1983 was entirely during peacetime. During the October 2009 VA examination, the Veteran reported "seeing bodies" on side of a road while in the Philippines and Singapore on rest and relaxation (R&R), which the examiner noted was not verifiable. Similarly, in a January 2014 email, the Veteran described an incident at some point from February to March 1982 where he saw a "dead body in a ditch" while on shore in Subic Bay in the Philippines. The last of the Veteran's asserted stressors involves military sexual assault (MST), in that he reports being harassed and/or touched inappropriately in a hospital prior to his appendectomy in August 1983. He has indicated at times that he began having PTSD symptoms after this incident. Although the Board must make the ultimate finding of fact concerning the occurrence of a stressor, VA regulation, as previously mentioned, provides that VA adjudicators may submit any evidence it receives to an appropriate medical or mental health care professional for an opinion as to whether it indicates that a personal assault occurred resulting in PTSD. 38 C.F.R. § 3.304 (f)(4). The Board also notes that, according to the special provisions of 38 C.F.R. § 3.304 (f)(4), VA may submit any evidence that it receives concerning the alleged MST to an appropriate medical or mental health professional for an opinion as to whether the evidence indicates that a personal assault occurred. See YR, 11 Vet. App. at 398-99. June 2009 is the first time of record that the Veteran sought treatment for his mental health. He gave a very detailed description of the events that occurred in service, specifically of the trauma surrounding his evacuation due to a medical emergency. At that time, the Veteran did not discuss an MST. The examiner specifically stated that his presentation was not suggestive of PTSD but rather of an anxiety disorder of some type, possibly of a specific phobia or a more generalized anxiety far in excess of situational stresses. The Board notes that the Veteran does have a diagnosis of PTSD of record. In a December 2009 record, the Veteran's private mental health provider indicated that they "discussed PTSD having roots in his military career" that was "chronic delayed but present now." Further, in a May 2016 letter, his Vet Center provider indicated that the Veteran had "PTSD related to his military service" and was being treated for "traumatic events he experienced while on a ship in the Navy, on route to a Navy hospital and while in a Navy hospital." Even as most recently as his August 2017 mental health evaluation from the Appalachian Community Health Center, the Veteran was diagnosed with PTSD by history, but his other Axis I diagnosis was major depressive disorder. In October 2009, the Veteran underwent an examination for PTSD. After interviewing and examining the Veteran, the examiner stated that the results of the evaluation clearly indicate that the Veteran did not experience a traumatic stressor which would meet the criterion A for a diagnosis of PTSD. The Veteran claimed traumatic stress from an incident that was routine and had a positive outcome, with no difficulties or complications. The examiner stated that the Veteran's accounts of the events appeared to be somewhat histrionic and possibly fabricated. Further, the examiner noted that the Veteran did make some reference to some sexual behavior while in the hospital, but it is unclear that this was not consensual, and his descriptions of this have varied somewhat, although he generally refused to talk about it in any fashion. The Veteran appeared to the examiner to be significantly and purposefully over-reporting PTSD symptomatology, most likely for secondary gain purposes. The examiner concluded by stating that no symptoms reported by the Veteran have any relationship to his military service or alleged stressors. He reported no history of impulsive or reckless behaviors and no impairment in communication or thought processes. The Veteran was afforded another VA examination in June 2016. At this time the examiner stated that for the diagnosed unspecified anxiety disorder, there was "no continuum of treatment" to suggest a link between the Veteran's current symptoms and service. However, the examiner did not consider the Veteran's assertions of having various mental health symptoms continuously since service. Lay evidence regarding in-service injury or events and the timing of symptoms may not be rejected solely due to an absence of contemporaneous medical evidence, but this circumstance may be considered with the other evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As such, in March 2017, the Board found this examination to be inadequate, primarily due to the fact that the examiner did not provide any rationale for her opinion that the reported stressors, including MST, did not meet the stressor criteria for PTSD, thereby rendering that opinion inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In an addendum opinion dated June 2017, the VA examiner noted it was less likely than not that his claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that were no markers that would support the occurrence of a MST. Moreover, the examiner remarked, that reported stressor would not meet the stressor criterion for PTSD. The examiner went on to state that the most appropriate diagnosis for this Veteran's symptoms is unspecified anxiety disorder and that the diagnostic criteria are not met for a diagnosis of PTSD. Further, that even if the stressor criterion were met, his symptoms would not be consistent with a trauma-related disorder. The examiner concluded by stating that the Veteran's current symptoms are generalized, and there is no discernible nexus among his current symptoms and his military service. The Veteran was discharged in 1983, and was not treated for mental health concerns until 2009. As such, there is no indication, according to the examiner, that his symptoms had onset during military service. While the Veteran has a PTSD diagnosis by history and has received treatment for such diagnosis at various times either through the Vet Center or other community health centers, the diagnosis is not consistent or based upon a verified stressor. In other words, without a diagnosis based upon a verified stressor service connection for PTSD is not warranted. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The Veteran's service records and lay statements for his appeal indicate that he received punishment due to substance abuse and behavioral problems at several points during service. The Veteran has asserted at times that these problems began or became worse after his reported MST and/or other asserted stressors. His service records also indicate that he was promoted and had high behavior scores at several points, and that he denied any mental health symptoms at several points. However, the Veteran's service treatment records do not carry a diagnosis of PTSD or any other acquired psychiatric disorder. In addition, a review of his post service treatment records does not show a diagnosis or treatment for an acquired psychiatric disorder until more than 25 years after service discharge. In regards to his diagnosis of other acquired psychiatric diagnoses to include unspecified anxiety disorder and major depressive disorder, there is no evidence of record that these disabilities are related to service. There is no nexus of record and there is no other evidence in the record other than the Veteran's own statement to suggest otherwise. The Board acknowledges that the Veteran believes that his mental health disabilities are related to service, specifically he states that after being discharged from the military he was in a bad place, his life continued to spiral out of control. To the extent that the Veteran has linked his diagnosed PTSD and other acquired psychiatric disability to his active military service, he is not competent to render such an opinion. While the Veteran is competent to provide evidence of symptoms or report a contemporaneous diagnosis provided by a physician, the Veteran here would be self-diagnosing his condition as well as giving an etiology of his currently diagnosed disabilities. 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Diagnosing an acquired psychiatric disability and providing an opinion as to the etiology is a complex medical question requiring knowledge of the mental health and psychiatric symptoms and interpretation of diagnostic tests and pathology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) The Board finds that a preponderance of the evidence is against the Veteran's claim and as the benefit of the doubt rule does not apply and entitlement to service connection is denied. 38 C.F.R. §§ 3.303, 3.307, 3.309, 5107. Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 3.156(a), 3.159, 3.326(a). VA's duty to notify has been satisfied through a notice letters that fully addressed all notice elements. This letter informed the Veteran of what evidence was required to substantiate his claims and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C. § 5103A (d); see also 38 C.F.R. § 3.159 (c)(4) (2017). The Veteran was provided a VA examination in June 2016 and the addendum opinion was provided in June 2017, which is adequate for the purposes of determining service connection as it involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an etiological opinion with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Entitlement to service connection for an acquired psychiatric disorder to include PTSD is denied. ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs