Citation Nr: 1800259 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-03 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1984 to December 1986 in the United States Navy. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The record reflects diagnoses of anxiety disorder and depression. As such, the Board has expanded the Veteran's claim to include the matter of entitlement to service connection for an acquired psychiatric disorder other than PTSD, and has recharacterized the issues accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue of entitlement to service connection for an acquired psychiatric 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 Veteran's diagnosed PTSD has not been linked to a verified in-service stressor event. CONCLUSION OF LAW The criteria for the establishment of service connection for PTSD are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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). II. Merits of the Claim The Veteran asserts that he has PTSD as a result of an incident during a period of active duty in early 1986. Specifically, the Veteran claims that he currently suffers from PTSD due to the explosion of a nearby building while he was on shore leave from the USS LANG in Panama City, Panama. Generally, service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor occurred actually varies depending on the circumstances of the stressor and the nature of a Veteran's service. With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish the claimed stressor varies depending on the circumstances of the stressor and the nature of a veteran's service. The veteran's lay testimony alone may establish the occurrence of the claimed in-service event in four cases: if the evidence establishes that the veteran was diagnosed with PTSD during service and the claimed stressor is related to that service; if the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat; if the claimed stressor is related to a fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and the veteran's symptoms are related to the claimed stressor; or if the evidence establishes that the veteran was a prisoner-of-war under 38 C.F.R. § 3.1(y) and the claimed stressor is related to that experience. 38 C.F.R. § 3.304(f)(1), (2), (3), and (4). 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 Veteran. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Turning to the record, the Veteran was first assessed with PTSD at a VA treatment facility in September 2011. A November 2012 letter from a VA psychiatrist indicated that the Veteran was being treated for PTSD at that time but provided no further information. The same psychiatrist signed a form for the City of Long Beach Housing Authority indicating that the Veteran had PTSD (Third Party Correspondence, December 2012). Therefore, the record supports that the Veteran has a diagnosis of PTSD. The Veteran has stated that his PTSD stressor event was a bombing that took place when a nearby building exploded during his shore leave at Rodman Naval Station or in Panama City, Panama (Statement in Support of Claim, April 2011.) A "buddy letter" submitted by the Veteran indicates only that an unspecified incident happened while at Rodman Naval Station in early February 1986 (Email Correspondence, December 2011). The Veteran served aboard the USS LANG at the time. Service personnel records support that the Veteran was aboard the USS LANG during this time period. The Veteran's stressor does not qualify for one of the exceptions listed in 38 C.F.R. § 3.304(f)(1)-(4). In cases such as this, there must be "credible supporting evidence that the claimed in-service stressor occurred." 38 C.F.R. § 3.304(f). At the request of the RO, the Defense Personnel Records Information Retrieval System (DPRIS) reviewed the command history of the USS LANG and found that the USS LANG was in the vicinity of Rodman Naval Station and Panama City from February 7 to March 1, 1986. The command history reflected that the LANG left Panama on March 2, 1986 and did not return for the remainder of the year. DPRIS reported that the deck logs of the USS LANG during this time period do not document a nearby explosion while the ship was in Panama. DPRIS also reviewed the available terrorism data provided by the U.S. Department of Homeland Security and found five terrorist attacks that took place in Panama in 1986. All of these attacks occurred in Panama City and involved bombings. However, none of these attacks took place between February 7 and March 1. The first three attacks occurred on March 16, the fourth on March 17, and the last on June 30, 1986. (DPRIS Response, March 2012.) This evidence reflects that the USS LANG was not in the vicinity of these bombings as it had already departed Panama at the time of their occurrence. Other than the Veteran's statements and those of his service comrade, the record shows no evidence of a bombing or explosion at Rodman Naval Station or in Panama City during the period when the USS LANG was in the vicinity, February 7 to March 1, 1986. For this type of stressor event, such lay evidence is not credible supporting evidence of the alleged stressor, particularly in a situation where research clearly contradicts that the alleged stressor event of a bombing or terrorist attack occurred. Therefore, there is no credible supporting evidence of the Veteran's alleged stressor event, and the second element of the claim of service connection for PTSD is not met. For the reasons set forth above, the preponderance of the evidence is against a finding that the Veteran's PTSD is related to a stressor event during service. Accordingly, service connection for PTSD is denied. 38 C.F.R. § 3.303, 3.304, 4.125. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for PTSD is denied. REMAND Regarding the remaining claim of service connection for an acquired psychiatric disorder other than PTSD, VA is obligated to provide an examination and/or opinion where the record contains evidence that the claimant has a current disability, the record indicates that a disability or signs of symptoms of disability may be associated with active service or service-connected disability, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record shows that the Veteran was treated for depression while in service. In December 1984, a Navy chaplain referred the Veteran to the Naval Hospital for depression. The Veteran complained of sleeping poorly and excessive worry. The treating physician prescribed Norpramin for the Veteran's depression. In May 1985 the Veteran was again treated for depression. In June 1986, the Veteran was admitted for psychiatric treatment due to "depression, free floating anxiety, and anger." The discharge diagnoses were alcoholism and mixed substance abuse. The treatment record reflects the Veteran reported having begun drinking at the age of 15. The examining psychiatrist found that the Veteran was unsuitable for further Naval service and it was recommended that he be separated on the basis of his severe alcoholism and drug abuse that existed prior to his enlistment. Service connection may not be granted for substance abuse on the basis of service incurrence or aggravation and an injury or disease incurred during active military service shall not be deemed to have been incurred in the line of duty if such was the result of the abuse of alcohol or drugs. 38 U.S.C. §§ 105, 1131; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. However, it is unclear from the record whether the depression and anxiety symptoms shown during service were related to in-service alcohol and drug abuse or separate from those symptoms. The record also contains evidence that the Veteran currently has anxiety and depressive disorder. January 2015 VA treatment records indicate that the Veteran said that a private doctor had determined that the Veteran had anxiety disorder and prescribed lorazepam. February 2016 VA treatment records indicate that the Veteran said that he was still taking lorazepam for anxiety at that time. A November 2012 letter from the chief of the Long Beach, CA, VA substance abuse treatment program stated that the Veteran was being treated for substance dependence, PTSD, and depression at that time. Also, a December 2012 letter from a friend of the Veteran indicated that in recent years the Veteran had exhibited erratic behavior, including behavior that may be symptomatic of depression. As such, the Board finds that a medical opinion is needed to determine whether the Veteran's current psychiatric disorder is related to symptoms of depression and anxiety in service. Regarding the diagnosed substance dependence, secondary service connection is available for such a diagnosis if it is found to be secondary to a service-connected disability. As such, on remand, if the examiner finds that the Veteran has an acquired psychiatric disability other than PTSD and substance dependence that is etiologically related to his active service, then the examiner should also provide an opinion as to whether the Veteran's substance dependence is secondary to that disability. 38 C.F.R. § 3.310; Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Accordingly, the case is REMANDED for the following actions: 1. Obtain any updated VA treatment records from March 2016 to the present. 2. After associating the above records, if any, with the electronic claims file, afford the Veteran a VA psychiatric examination by an appropriate medical professional to determine the current nature and etiology of any diagnosed psychiatric disorder other than PTSD found to be present. The entire claims folder must be made available to the examiner for review. Based on review of all the evidence of record, and the Veteran's elicited history, the examiner is asked to opine regarding the following: A. Does the Veteran have a current psychiatric diagnosis under DSM-5 other than PTSD? In responding to this question, please consider VA treatment records that indicate the Veteran has been diagnosed with anxiety disorder, depressive disorder, and substance dependence. B. If a psychiatric disorder other than PTSD or substance dependence is diagnosed, then is it at least as likely as not (50 percent or better probability) that such disorder had its onset in service or is otherwise related to his active service or any incident therein? In responding to this question, please consider the Veteran's symptoms in service and to explain the relationship of the symptoms to the acknowledged in-service alcohol and drug abuse, e.g., whether the alcohol and drug abuse caused the symptoms or whether the anxiety and depression symptoms caused the alcohol and drug abuse. C. If a substance abuse or dependence disorder is diagnosed and it is opined that one or more of the acquired psychiatric disabilities other than PTSD and substance abuse or dependence is at least as likely as not causally or etiologically related to the Veteran's active service, then also provide an opinion as to whether it at least as likely as not (50 percent probability or greater) that any diagnosed substance abuse or dependence disorder is proximately due to, caused by, or aggravated (i.e., any increase in severity) by that psychiatric disability or those psychiatric disabilities. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. After completion of the above and any other development deemed necessary, readjudicate the issue on appeal. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs