Citation Nr: 1753534	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  09-25 106	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. R. Watkins, Associate Counsel







INTRODUCTION

The Veteran served on active duty from June 1968 to June 1970 and from May 1975 to October 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  Original jurisdiction now resides with the Atlanta, Georgia, RO. 

In September 2012, the Board denied the claim for service connection for an acquired psychiatric disorder.  The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  In March 2013, the Court granted a Joint Motion for an Order Vacating the Board Decision that vacated and remanded the Board's September 2012 denial.

In January 2015, the Board granted service connection for an acquired psychiatric disorder, other than PTSD, and remanded the issue of entitlement to service connection for PTSD.  In August 2016, the Board again remanded the issue of entitlement to service connection for PTSD to verify the Veteran's claimed stressors. 


FINDING OF FACT

There is no diagnosis of PTSD based on a claimed credible stressor, the Veteran did not engage in combat with the enemy, and there is no credible evidence corroborating any of the Veteran's alleged in-service stressors.


CONCLUSION OF LAW

PTSD was not incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Law and Analysis

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things:  (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 

Service connection may also be granted for a disease first diagnosed after discharge when all of 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 for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally.  Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010).  Service connection for PTSD requires:  medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2017); 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 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the DSM-V).

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, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f)(1); see 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d) (pertaining to combat veterans).  A finding that the veteran engaged in combat with the enemy, however, requires that the veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy.  See VAOPGCPREC 12-99 (October 18, 1999).  

Prior to a recent amendment to the regulations, where a determination was made that a veteran did not "engage in combat with the enemy," or the claimed stressor was not related to combat, the veteran's lay testimony alone was insufficient to establish the occurrence of the alleged stressor.  See Moreau v. Brown, 9 Vet. App. 389, 395 (1996).  In such cases, service records or other corroborative evidence were required to substantiate or verify the veteran's testimony or statements as to the occurrence of the claimed stressor.  See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994).  Effective July 13, 2010, however, 38 C.F.R. § 3.304(f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity.  See 75 Fed. Reg. 39843-01 (July 13, 2010), codified at 38 C.F.R. § 3.304(f)(3).  The amendment provides that, if a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary.  Id.  "Fear of hostile military activity" is defined to mean 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, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  Id.  The list of examples of such an event or circumstance specifically includes attack upon friendly military aircraft, vehicle-imbedded explosive devices, and incoming artillery, rocket, or mortar fire.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Initially, the Board notes that the Veteran had active service during a period of war.   However, the Veteran's personnel records indicate that he did not have service in the Republic of Vietnam (Vietnam) or combat service.  The evidence does not suggest that he engaged in combat with the enemy.  Therefore, neither the combat provisions of 38 U.S.C. § 1154 nor the rule relating to combat stressors are applicable.

The Veteran contends that he has PTSD that is related to service.  In an August 2006 Statement in Support of Claim for Service Connection for PTSD, the Veteran described two in-service stressors.  In approximately May 1969, the Veteran asserted he witnessed a soldier accidentally shot and killed on the rifle range.  The second stressor occurred around January 1970.  The Veteran indicated that he saw a soldier run over by a tank during a training exercise.

Here, the Veteran's September 2013, June 2014, and August 2016 VA Examinations provided diagnoses of depressive disorder not otherwise specified and unspecified depressive disorder.  The VA examiners were unable to provide a diagnosis of PTSD.  The VA treatment records contain notations for PTSD.

Assuming, without conceding, that the diagnosis of PTSD is adequate, there is, nevertheless, a need to corroborate the claimed stressors.  
A stressor involves exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and the person's response involved intense fear, helplessness, or horror.  See Cohen v. Brown, 10 Vet. App. 128 (1997).

The evidence necessary to establish the occurrence of an in-service stressor varies depending on whether or not the veteran engaged in combat with the enemy.  Gaines v. West, 11 Vet. App. 353, 358 (1998).  If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressor is related to combat, the veteran's lay testimony, alone, is sufficient to verify the claimed in-service stressor.  38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d), (f). 

VA was unable to verify the Veteran's claimed in-service stressors after numerous attempts.  In September 2017, VA summarized the efforts that were taken to verify the claimed accidental shooting and tank accident.  However, the appropriate agencies were unable to verify either of these stressors.

If a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, and a VA psychiatrist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary.  38 C.F.R. § 3.304(f)(3).  
"Fear of hostile military activity" is defined to mean 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, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  The list of examples of such an event or circumstance specifically includes attack upon friendly military aircraft, vehicle-imbedded explosive devices, and incoming artillery, rocket, or mortar fire.  See 38 C.F.R. § 3.304(f)(3).

The Board finds that the relaxed standard based on fear of hostile military activity does not apply in the instant case as such claimed stressors are not based on a fear of hostile military activity.  Instead, the Veteran's stressors relate to military activity by his own troops, which is not hostile military activity.

If a claimed stressor is not related to combat or fear of hostile or military activity, as is the case here, a veteran's lay statements alone are not sufficient to establish the occurrence of the alleged stressor.  Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).  Rather, the record must contain service records or other corroborative evidence substantiating the veteran's testimony or statements as to the occurrence of the claimed stressor.  See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). 

In this case, the Veteran's accounts of what happened simply are not supported by any actual evidence of record.  Specifically, no credible corroborating evidence has been able to be found in support of his contentions.  As the Veteran's lay statements alone are not sufficient to verify his claimed stressors, the claim for PTSD must be denied.  Moreau, 9 Vet. App. at 395-396; Dizoglio, 9 Vet. App. at 166.

However, the Board notes that although the claim for service connection for PTSD is being denied, the Veteran is in receipt of a 100 percent evaluation for unspecified depressive disorder.  


ORDER

Entitlement to service connection for PTSD is denied.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs