Citation Nr: 1801673 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-11 963 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the VA RO. FINDING OF FACT A corroborated stressor event on which to base a diagnosis of PTSD is not established. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has certain notice and assistance obligations to claimants. 38 U.S.C. § 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). In this case, the Veteran was provided with all appropriate notification in September 2012. 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/Simmons, 556 U.S. 396 (2009). Thus, adjudication of the Veteran's claims at this time is warranted. With respect to the duty to assist, VA has provided all required assistance with respect to this claim for benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, service personnel file, and post-service treatment records have been obtained, to the extent identified and available. The Veteran was provided with an examination addressing his claimed PTSD in April 2013. The Veteran has argued that this examination report is inadequate. For example, in May 2013, the Veteran stated that the April 2013 examiner told him that he would record that a 1992 armed robbery caused an exacerbation of already-existing PTSD that was related to his service. The Board finds that nothing in the April 2013 examination report, including the examiner arriving at a contrary conclusion following a discussion of the evidence, suggests that the examiner believed that the Veteran suffered from PTSD before the 1992 incident. Furthermore, as is discussed in greater detail below, the Board finds that the weight of the evidence is against a finding that the Veteran's claimed in-service stressors took place. Otherwise, upon review of the examination report, the Board finds that the examiner reviewed the Veteran's claims file and past medical history, noted his current complaints, and rendered an appropriate opinion consistent with the remainder of the evidence of record. The Board finds that the medical evidence of record is adequate for the purpose of rendering a decision. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran requested the opportunity to participate in a hearing before the Board, and he was scheduled to receive such a hearing in July 2017. The Veteran failed to appear for this scheduled hearing, and he has not requested that the Board reschedule his hearing. Under the circumstances, the Board considers the Veteran's request for such a hearing to have been withdrawn. The Board finds that no further notice or assistance to the Appellant is required to fulfill VA's duty to assist the Appellant in the development of the claims. 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 In order to establish service connection, 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) (2017). 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. § 1154(b) (2012); 38 C.F.R. § 3.304(f) (2017); 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) (2017). 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) (2017). 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) (2017); 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 entered active duty service in the United States Navy (Navy) in June 1967. In the Veteran's November 1968 separation examination, the Veteran was noted to be psychiatrically normal. The Veteran did not otherwise complain of psychiatric symptoms in service. Following service, in October 2003, the Veteran complained of fear of driving on the freeway following a motor vehicle accident (MVA). In November 2003, the Veteran complained of anxiousness, panic attacks, sleep problems, flashbacks, and a depressed mood following the October 2003 MVA. The Veteran described his October 2003 MVA in detail, stating that following the MVA, he attempted to help a man who ultimately died as a result of the accident. The Veteran experienced recurrent memories of "the dead guy's face". The Veteran complained of additional stressors, including financial problems because his insurance company had not reimbursed him following the accident. The Veteran described his previous medical history, indicating that he had been diagnosed with PTSD following a 1992 robbery at his job. The Veteran stated that he was a communications expert in service and did not witness any combat. The Veteran indicated that he saw many wounded Marines who were sent to Guam to recuperate. In December 2003, the Veteran related his PTSD to the October 2003 MVA. The Veteran stated that he had not experienced diminished functioning before the October 2003 MVA. The Veteran additionally discussed the 1992 incident in which he was held at gunpoint in his place of business. The Veteran indicated that he sought psychiatric care for about a year following the 1992 incident. In December 2005, it was noted that the Veteran had received treatment for PTSD relating to the MVA that he witnessed. In February 2008, a clinician indicated that the Veteran had PTSD as the result of a 2004 MVA. The Veteran filed his claim of entitlement to service connection for PTSD in September 2012. In a September 2012 mental health consultation, the Veteran stated that "certain things trigger [psychiatric symptoms] in [his] life". In October 2012, the Veteran identified several in-service stressors. The Veteran indicated that he participated in a training exercise in which he had to remain in a room with a fire, remove his face mask, and breathe in smoke. The Veteran stated that he coughed, choked, vomited, and aspirated vomit during this exercise, during which time he indicated that all he "could think about was dying". The Veteran additionally indicated that he was the victim of "pranks" in service in which other sailors placed rodents in his sleeping bunk. The Veteran was bitten as a result, but he did not seek treatment. The Veteran stated that he witnessed an MVA in-service in which one of his friends died. The Veteran indicated that he was traumatized by receiving news that other service members had died in Vietnam. The Veteran underwent a VA examination in April 2013, at which time the Veteran described experiencing the above-described stressors. The Veteran further stated that after his separation from service, during a 1990 armed robbery, he was shot in the leg and handcuffed at his job. The Veteran stated that he was "doing well psychiatrically" until the robbery. The examiner diagnosed the Veteran with PTSD, but as a result of a "near death" experience associated with the armed robbery, rather than his in-service experiences. In May 2013, a clinician noted that the Veteran's anxiety had been caused by freeway traffic. Also in May 2013, the Veteran stated that three witnesses were aware that he had PTSD before the post-service armed robbery. In October 2013, the Veteran stated that he was meant to be with the friend whose death he witnessed in in-service MVA. The Veteran stated that he was diagnosed with PTSD in 1988 as a result of his in-service experiences. In July 2014, JWP, who stated that he served with the Veteran, indicated that he witnessed the Veteran collapse, vomit, and pass out following a fire exercise during basic training. JWP visited the Veteran at his home following the incident and witnessed the Veteran crying with his mother when recounting this incident. JWP deployed to Guam with the Veteran, and he indicated that he observed the Veteran's distress following the death of his friend in an MVA. JWP observed the Veteran becoming more withdrawn throughout service. Turning to a review of this evidence, as an initial matter, the Board notes that the Veteran's claimed stressors are not based on either combat or a fear of hostile military or terrorist activity. Indeed, the Veteran's personnel and service medical records are negative for any indication that the Veteran ever participated in combat, and the Veteran has not alleged that any combat-related experience led him to develop PTSD. Instead, the Veteran has alleged that his PTSD is the result of a variety of non-combat experiences, such as a fire training exercise, in-service pranks, and the death of a friend. Therefore, the record must contain credible supporting evidence that the Veteran's claimed in-service stressors actually occurred. 38 C.F.R. §3.304(f)(3) (2017). In this case, even acknowledging JWP's July 2014 statement corroborating the Veteran's account of his in-service experiences, the Board finds that the weight of the evidence is against a finding that the claimed stressor events actually occurred. The Board, as the fact finder, must determine the credibility of lay evidence. Culver v. Derwinski, 3 Vet. App. 292 (1992). When weighing credibility of evidence, the Board may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and the demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran's service treatment records do not refer to the claimed incidents or to psychiatric difficulties generally. At the time of the Veteran's November 1968 separation from service, he was found to be psychiatrically normal. Before the Veteran's September 2012 claim of entitlement to service connection, despite receiving psychiatric care, the Veteran failed to mention the existence of the stressors that he now claims. Instead, to the extent that the Veteran described experiencing stressors, they involved only a 1992 incident in which he was held at gunpoint and an October 2003 MVA. The Board finds that the Veteran's failure to mention the existence of his claimed in-service stressors at any time before his September 2012 claim, detracts from the credibility of the Veteran's later statements. The Board places greater credibility in the Veteran's past statements to clinicians, which the Veteran offered in an attempt to receive appropriate medical care, than in the statements that the Veteran made following a claim for benefits. Furthermore, even if the Board were to concede that the Veteran's claimed in-service stressors indeed occurred, the weight of the evidence is against a finding that the Veteran suffers from PTSD as the result of such stressors. An April 2013 examiner was unable to find that the Veteran had PTSD as a result of his in-service experiences and instead found that the Veteran had PTSD as a result of the 1992 armed robbery that he experienced. 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. The Board finds that preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is denied. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs