Citation Nr: 1802379 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-30 153 ) 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), anxiety disorder, and depression. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1966 to March 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record on appeal. In May 2015, the Board remanded the case for additional development and it now returns for further appellate review. FINDINGS OF FACT 1. The Veteran does not have PTSD as a result of a verified in-service stressor. 2. An acquired psychiatric disorder other than PTSD is not shown to be causally or etiologically related to any disease, injury, or incident during service, and a psychosis did not manifest within one year of the Veteran's service discharge. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, and depression, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). While the Veteran argues that he should have been afforded a VA examination in connection with his claim, which will be discussed in detail herein, neither he nor his representative have alleged any other deficiency with respect to VA's duties to notify or 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 duty to assist argument). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as psychosis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. As relevant to the instant claim, the term "psychosis" includes a brief psychotic disorder; delusional disorder; psychotic disorder due to general medical condition; psychotic disorder, not otherwise specified (NOS); schizoaffective disorder; schizophrenia; schizophreniform disorder; shared psychotic disorder; and substance-induced psychotic disorder. 38 C.F.R. § 3.384 (2014). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For PTSD, service connection requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), 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). The evidence required to support the occurrence of an in-service stressor varies depending on whether the veteran was engaged in combat with the enemy. If the evidence establishes that the 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 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). Prior to July 13, 2010, VA had generally required that, where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other 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). However, in July 2010, the evidentiary standard outlined in 38 C.F.R. § 3.304(f)(3) for establishing in-service stressors in claims for PTSD was relaxed. The new regulations provide that, if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that 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. 75 Fed. Reg. 39,843, 39,852 (July 13, 2010); 38 C.F.R. § 3.304(f)(3). 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has an acquired psychiatric disorder as a result of his military service. In this regard, he reported that he witnessed the aftermath of a truck accident that killed four soldiers from the 62nd Armored unit at Fort Knox. In support of the Veteran's claim, his spouse and a friend, J.C., have offered statements attesting the nature of his symptoms. Specifically, in October 2011 and February 2015, the Veteran's spouse stated that he had nightmares about the accident in the military. Furthermore, in a statement received in October 2011, the Veteran's friend, J.C., reported that the Veteran told her that he had nightmares about the accident that happened in the military. As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy and his claimed stressors are not related to fear of hostile military or terrorist activity. Consequently, his lay statements alone are not sufficient to verify his claimed stressors. Furthermore, the Agency of Original Jurisdiction (AOJ) contacted the United States Department of the Army in order to verify a truck accident with causalities for the period from May to June 1967. However, in a March 2013 Memorandum, the AOJ made a formal finding of a lack of information required to corroborate stressors associated with a claim for service connection for PTSD related to the Veteran's reports of witnessing the aftermath of a truck accident with four causalities that occurred sometime between May and June 1967. As the Veteran subsequently testified at his February 2015 hearing that such incident occurred sometime in March or April 1967, and there was a second tank accident in approximately late 1966, the Board remanded the case in order for the AOJ to attempt to verify his stressors based on such new information. In this regard, the AOJ contacted the Director of the US Army Crime Records Center Crimes Division in an effort to verify such stressors. However, based on a response from such entity, in a November 2015 Memorandum, the AOJ made a formal finding that the Veteran's claimed stressors could not be verified as the Director of the US Army Crime Records Center Crimes Division indicated that they only retained records for 40 years. Furthermore, the Board finds that the remainder of the evidence of record fails to verify such stressors, or reflect that the Veteran has an acquired psychiatric disorder related to his military service. In this regard, the Veteran's service treatment records (STRs) are negative for any complaints, treatment, or diagnoses referable to an acquired psychiatric disorder, and his January and March 1968 separation examinations reveal that clinical psychiatric evaluations were normal. Furthermore, as discussed below, the Veteran's post-service treatment records reflect impressions of variously acquired psychiatric disorders; however, such have not been related to a verified event during military service by either the Veteran or his treatment providers. Specifically, the Veteran's VA treatment records contain a January 2009 VA treatment note that reflects an impression of anxiety disorder. In this regard, the Veteran reported that he was experiencing nightmares for about a year. He stated that he witnessed various wrecks while in service and in his personal life. VA treatment records also contain a March 2009 VA treatment note that the Veteran reported that he witnessed seven people killed in a truck wreck while serving on active duty. A March 2011 VA treatment note indicated that the Veteran had reported symptoms consistent with major depression, generalized anxiety, PTSD, mania, and psychosis. Additionally, Social Security Administration records include a May 2009 psychological assessment with a diagnosis of nightmare disorder. In this regard, the Veteran reported that his nightmares started two years ago. He reported that he had been seen by a psychiatrist at the VA who told him the nightmares might be due to PTSD. The Veteran did not report a history of traumatic events other than stating that he saw some "pretty bad wrecks" when investigating accidents in the military. However, he reported that he did not dwell on them and felt as though the wrecks did not cause his nightmares. During the Veteran's February 2015 hearing, he testified that his treating VA psychiatrist based his PTSD diagnosis on his reported in-service stressor. However, the record does not reflect such a diagnosis of PTSD that was attributed to the purported in-service stressor. Given the foregoing, the Board finds that the Veteran's description of his in-service stressors is inconsistent and not supported by the contemporaneous record, and, therefore, lacks credibility. In weighing credibility, VA 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 demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd 78 F.3d 604 (Fed. Cir. 1996). In this case, there is no indication in the Veteran's STRs or personnel records that he witnessed a fatal accident during service. Furthermore, the record indicates that the Veteran had psychiatric treatment on three occasions prior to his July 2009 claim for service connection and, during such sessions, he offered inconsistent statements regarding his claimed in-service stressors and did not relate his current disorder to an in-service event. In this regard, in January 2009, the Veteran reported witnessing various wrecks while in service, but he denied any current significant life stressors. In March 2009, he reported witnessing seven people killed in a wreck while in the military, but later indicated that it was only four people. Moreover, in May 2009, he reported that he saw some "pretty bad wrecks" during service, but the wrecks did not cause his nightmares. Therefore, in light of the fact that the Veteran's statements regarding the alleged accident are unverified, inconsistent with the available evidence, and were not reported until he had a self-interested reason for doing so, the Board finds that the Veteran's statements describing the alleged in-service accidents to be not credible and they are afforded no probative weight. The Board also acknowledges the Veteran's spouse and friend's reports that the Veteran told them about an accident. However, neither person claims to have witnessed the accident and their lay observations are based on the Veteran's reports, which have been found to lack credibility. Consequently, their statements are afforded no probative weight. Therefore, the Board finds that the Veteran does not have PTSD as a result of a verified in-service stressor. Moreover, while he has additionally diagnosed acquired psychiatric disorders, the record does not contain a competent opinion relating any such disorder to a verified event during his military service. Further, to the extent that the Veteran has been diagnosed with a psychosis, there is no evidence that such manifested within one year of his service discharge and he has not alleged a continuity of symptomatology of such disease since service. In this regard, the Board acknowledges the Veteran's statements that he currently has an acquired psychiatric disorder related to his military service. However, a determination as to whether the Veteran has an acquired psychiatric disorder that is related to service requires the expertise of a mental health professional as such a determination may only be made after a clinical analysis that a lay person does not that have the requisite training or knowledge to undertake. As such, the matter is a complex question that may not be competently addressed by lay evidence, and the Veteran's own opinion in this regard is nonprobative evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, in light of the fact that the AOJ could not verify the Veteran's stressors, he was not afforded a VA examination. In this regard, the Veteran argues that he should be afforded an examination by the VA. However, the Board finds that no examination or opinion is necessary to decide the claim as there is no credible evidence of an in-service event, and no indication beyond his own statements that he has an acquired psychiatric disorder related to his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Bardwell v. Shinseki, 24 Vet. App. 36 (2010); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In light of the above and in conclusion, the Board finds that service connection for an acquired psychiatric disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the probative evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. As such, that doctrine is not applicable, and this claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, and depression, is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs