Citation Nr: 1804435 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-29 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from January 1991 to March 1991. The Veteran had Reserve and National Guard service from June 1981 to January 1994 with various periods of active duty for training and inactive duty for training, including a verified period of active duty for training from August 1981 to October 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2016 and August 2017 when it was remanded for further development and to ensure compliance with due process procedures. The Veteran testified before the Board at a hearing in November 2017. A transcript of the hearing is of record. At the November 2017 hearing, the Veteran submitted additional evidence in the form of lay statements with a waiver of initial Agency of Original Jurisdiction (AOJ) review. FINDINGS OF FACT 1. There is no credible supporting evidence verifying the alleged in-service stressor event claimed to have resulted in PTSD. 2. A preponderance of the evidence is against a finding that symptoms of an acquired psychiatric disorder, other than PTSD, manifested during service or that an in-service event or injury occurred. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD and depression, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify. 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"). VA has met its duty to assist. VA has obtained, to the extent possible, all relevant evidence identified by the Veteran and necessary for an equitable resolution of the issue on appeal. In 2010 and 2012, the AOJ attempted to obtain credible supporting evidence of the Veteran's alleged stressor via requests to the Army Crime Records Center. Following the Board remand in September 2016, the AOJ made further attempts to verify the Veteran's claimed stressor based on the information the Veteran provided. The AOJ attempted to verify the Veteran's claimed stressor in January 2017 through the Joint Services Records Research Center and the Army Department of Casualty and Mortuary Affairs. In each instance, the offices contacted were unable to find any information supporting the occurrence of the claimed stressor. The AOJ notified the Veteran of its inability to obtain credible supporting evidence in support of his alleged stressor event via a September 2011 statement of the case and April 2017 supplemental statement of the case. 38 C.F.R. § 3.159(e). The Board notes that the Veteran has not been afforded a VA examination to assess the etiology of an acquired psychiatric disorder. However, as the evidence does not establish an in-service event, the Board finds that an examination is not required under these circumstances per McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Legal Criteria and Analysis The Veteran contends he has an acquired psychiatric disorder related to a stressor he experienced during active duty in 1991. Service connection may be granted for a disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for an acquired psychiatric disorder, generally 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)]; (2) a link, established by medical evidence, between current symptoms and a stressor event in service; and (3) credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304(f). Regarding the diagnosis of PTSD, an interim final rulemaking amended § 4.125(a), effective August 4, 2014, to state that diagnosis of a mental disorder must conform to DSM-5, not DSM-IV. 79 Fed. Reg. 45,093 (Aug. 4, 2014). However, the applicability date of the rulemaking indicates that the revision is not applicable where a case was certified to or pending before the Board on or before August 4, 2014. See id. at 45,093. Since the Veteran's case was originally certified to the Board prior to August 4, 2014, DSM-IV is applicable. 38 U.S.C. § 1154(a) requires VA to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Regarding PTSD, the record indicates the Veteran has the current psychiatric disability of PTSD. Beginning in 2009 and throughout the appeal period, multiple VA medical doctors have diagnosed the Veteran with PTSD. Therefore, the Veteran satisfies the current disability element of service connection for PTSD. Turning to the in-service stressor element, the Veteran has identified one in-service stressor event that occurred during his approximately two months of active duty from January 1991 to March 1991. Beginning in July 2005 and then again in multiple statements throughout the appeal period (May 2009, December 2009, and April 2012), the Veteran stated he saw a trainee fall on his bayonet, and the trainee died in the Veteran's arms. The Veteran indicated the trainee was not in his unit, but was in the same company. The Veteran reiterated this incident at the November 2017 hearing. However, VA has been unable to verify that this in-service stressor occurred. In December 2010, the AOJ requested verification from the Army Crime Records Center regarding the occurrence of the event from January to March 1991. In September 2011, the AOJ received notification from the Army Crime Records Center that there was no record of the occurrence of the reported incident during the timeframe provided. After receiving new information from the Veteran's representative regarding the company to which the Veteran belonged at the time of the incident, the AOJ made another request to the Crime Records Center in June 2012. In June 2012, the Crime Records Center responded that there was no record of the alleged incident. Following the Board remand in September 2016 to develop the Veteran's claimed in-service stressor, the AOJ attempted to verify the Veteran's claimed stressor in January 2017 through the Joint Services Records Research Center and the Army Department of Casualty and Mortuary Affairs. Those divisions were unable to find any information regarding the claimed stressor through searches of the Defense Personnel Records Information Retrieval System and Defense Casualty Information Processing System. VA has exhausted all efforts to obtain the necessary information to verify the Veteran's claimed stressor. The Board has considered the Veteran's spouse's testimony at the November 2017 hearing that the Veteran has "just kind of changed with this memory." In addition, the Board has considered the written statement from the Veteran's spouse submitted at the November 2017 hearing reflecting that the Veteran is not the same person as he was back in the 1970's when she first met the Veteran and prior to getting back in touch with each other in 2008. The Board finds the Veteran's spouse is competent to testify as to how the Veteran was in the 1970's versus how he is today, but the Board finds the Veteran's spouse is not competent to provide credible supporting evidence of the in-service stressor event because she was not in attendance at the event and was not in contact with the Veteran during the time period of the event. The Board has considered the statement from C.B. that the Veteran submitted at the November 2017 hearing. In her statement, C.B. states that she was surprised to see how withdrawn the Veteran would become at times. The Board finds C.B. to be competent to testify as to the actions of the Veteran. However, the statement does not provide any account of or verification of the claimed stressor. Thus, it does not constitute credible evidence supporting that the claimed stressor occurred. Unfortunately, the circumstances of the Veteran's claimed in-service stressor do not fall under the circumstances in which lay testimony alone is enough to satisfy the in-service stressor element. See 38 C.F.R. § 3.304(f)(1)-(4). Therefore, without credible evidence supporting that the claimed stressor occurred, the second element of the claim of service connection for PTSD is not met. As a preponderance of the evidence is against a finding that the Veteran's claimed stressor occurred, the Board will now turn to the Veteran's other claimed psychiatric disorder. The record indicates the Veteran has the current psychiatric disability of depression, diagnosed by VA medical doctors at multiple visits between 2005 and 2009. Therefore, the first element of service connection is established. In regards to the second element, the in-service injury, disease, or event, as is addressed above, the weight of the evidence is against a finding that the Veteran's claimed stressor occurred. However, here, it is necessary to address any other additional in-service occurrences that may have led to the Veteran's depression. The Veteran has not alleged that any other in-service event caused a psychiatric disability. Notably, an April 1988 examination during a period of reserve service shows that the Veteran was diagnosed with reactive depression consistent with separation from his spouse and being laid off from his job. At the November 2017 hearing, the Veteran testified that he had depression after his divorce in 1988. Here, the incident that led to the Veteran's depression did not occur during a period of active duty, so the Veteran's divorce in 1988 cannot serve as an in-service event for purposes of service connection. Additionally, the 1988 examination indicating depression was not conducted during a period of active duty. The Board notes that the indication on the April 1988 examination raises questions as to whether an acquired psychiatric disorder preexisted the Veteran's 1991 period of active duty service. Here, the presumption of soundness does not attach as there is no indication the Veteran had an entrance examination prior to his entrance into active duty in January 1991 and it is not necessary to engage in any related analysis. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Additionally, the evidence does not indicate that any psychiatric disorder or symptoms of such manifested during the Veteran's active duty service. There is no evidence of treatment or complaints of any symptoms of depression during the Veteran's 1991 period of active duty. The March 1991 separation examination includes no diagnosis of a psychiatric disorder and the Veteran did not report having depression or any other psychiatric symptoms. Further, the Veteran stated "I am in good health and taking no medications" at the March 1991 examination. Hence, as the weight of the evidence is against a finding that the alleged in-service event occurred, the second element of the claim of service connection for an acquired psychiatric disability is not met. In summary, the claim of service connection for an acquired psychiatric disorder, to include PTSD and depression, is denied. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for service connection, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, to include PTSD and depression, is denied. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs