Citation Nr: 1805073 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-29 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES Entitlement to service-connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), bipolar disorder, major depressive disorder (MDD) and anxiety disorder. REPRESENTATION Veteran represented by: Barbara B. Harris, Attorney ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel INTRODUCTION The Veteran served in the United States Air Force from September 1971 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which declined to reopen a previously denied service-connection claim for PTSD. In August 2015, the Board reopened and remanded this matter to the Agency of Original Jurisdiction (AOJ) for further development. The record reflects substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Lastly, on December 13, 2017, the Veteran filed a motion to advance on the docket due to financial hardship. Given today's decision, the motion is moot. FINDINGS OF FACT 1. There is no credible in-service stressor. 2. Bipolar disorder is a congenital disease or defect. 3. The evidence is not at least in equipoise as to whether the Veteran's MDD and anxiety disorder are/were due to service. CONCLUSION OF LAW The criteria for establishing entitlement to service-connection for an acquired psychiatric disability, to include PTSD, bipolar disorder, MDD and anxiety disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.125 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service-connection The Veteran seeks entitlement to service-connection for an acquired psychiatric disability, to include PTSD, bipolar disorder, major depressive disorder, and anxiety disorder. To establish service-connection for PTSD, a Veteran must show: (1) medical evidence establishing a clear diagnosis of PTSD under 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and a claimed in-service stressor. 38 C.F.R. § 3.304(f). To establish service-connection for an acquired psychiatric disorder other than PTSD, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service-connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Whether these requirements are met is based on analysis of all the evidence of record and the evaluation of its credibility and probative weight. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). A. PTSD Historically, the Veteran first initiated a service-connection claim for PTSD in April 1999. The claim was denied in an August 1999 rating decision because the Veteran did not have a diagnosis of PTSD. The denial was confirmed and continued by August 2000 and November 2001 rating decisions because the Veteran did not have a diagnosis of PTSD and the claimed stressors could not be verified. He was properly informed of that decision and did not appeal the decision within one year. Thus, it became final. In August 2006, the Board declined to reopen the matter because new and material evidence had not been presented. In August 2009, the United States Court of Appeals for Veterans Claims affirmed the Board's decision. The Veteran again filed for service-connection which was denied in a September 2010 rating decision due to the lack of new and material evidence. In August 2015, the Board characterized the claim as one for an acquired psychiatric disorder and reopened the claim due to new and material evidence consisting mainly of revised stressor statements, lay statements from T.R. and E.W., and treatment records which included diagnoses of PTSD and bipolar disorder. The Board remanded the matter to obtain necessary records, examinations and develop and substantiate the Veteran's revised stressor statements. Thereafter, the Veteran was afforded VA examinations (VAXs) in March 2016 and June 2017 which yielded PTSD diagnoses. Nevertheless, the claim remains denied because the in-service stressors relied on by the examiners are not accurate, uncorroborated, or both. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (explaining competency is a legal concept determining whether evidence may be heard and considered by the trier of fact; weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted); see also Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (holding that the Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence); accord Pond v. West, 12 Vet. App. 341, 345 (1999); Madden v. Gober, 125 F.3d 1477, 1480-81 (1997). According to the Veteran's revised stressor statements (made after August 2006 BVA decision), he witnessed a group of Thai men attack and stab an Airman behind the gym at the base while stationed at Korat Royal Thai Air Force Base in Thailand (attached to 388th Organizational Maintenance Squadron) between May 1, 1974 and July 13, 1974. On July 12, 2016, October 7, 2016, and January 13, 2017, VA sent requests to the Air Force Historical Research Agency (AFHRA) to help corroborate the claimed in-service stressor. On January 27, 2017, VA received a response from AFHRA stating their research from January 1972 through December 1974 did not show any records of a stabbing incident on Korat Royal Thai Air Force Base. The Veteran did not proffer any evidence corroborating the alleged stabbing incident and he was not a combat veteran such that the combat presumption would apply. Thus, service-connection cannot be granted based on this stressor. More fundamentally, the evidence indicates the incident is a fabrication. The Veteran initially reported that the stressor occurred while he was on the Korat Royal Thai Air Force Base in June 1971, but he was neither in the military nor in Thailand at that time. Further, he reported fearing for his life as he saw the Airman bleeding from his midsection, but added that he waited until the coast was clear and then took a shower. If the Veteran feared he may have been seen by the attackers and feared for his life, as he alleged, it is very unclear why he did not go to the authorities, instead of a shower. He added that he then fled the base and did not go back until 2-3 weeks later until he was "asked" to come back for a court martial. These assertions are not only not corroborated by his military personnel records (MPRs); the MPRs provide evidence against such events having occurred. His MPRs reveal he was issued three Article 15s-on June 20, 1973, June 1, 1974, and June 22, 1974-each time for "fail[ing] to go [to the] place duty time prescribed." He was counseled and issued letters of reprimand on other occasions for being disrespectful to a noncommissioned officer, unsafe driving and issuing worthless checks, among other things. However, his MPRs make no mention of the Veteran being AWOL (absent without leave) or failing to report to his duty station for a 2-3 week period despite carefully detailing his other transgressions. It is incredulous that the Veteran's lengthy absence from the base would be missing from his MPRs especially in light of his assertion that an Airman was attacked and wounded (maybe even died) on the base around the time of his disappearance. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Similarly, the Board is unconvinced that the Veteran, a witness to the alleged stabbing of an Airman on the base, would not have explained the circumstances of his disappearance during the course of the administrative discharge proceeding which resulted in his bar from reenlistment. Id. For these reasons, the Board finds the Veteran and his statements are not credible. The second stressor incident suffers a similar fate: On August 31, 1999, the Veteran reported that, while in basic training at Lackland Air Force Base, he witnessed a training instructor, Sergeant Rodriguez, choke an Airman with a towel. In August 2011, after his claim was denied repeatedly in part because the incident was unverifiable, the Veteran finally added that the name of the choked Airman was "Airman Bex." According to the Veteran, the incident triggered PTSD symptoms and caused his performance to decline while in the military. This stressor incident and his alleged problems associated with the stress (which he suggests began in basic training) are inherently implausible. The Veteran's assertion that the incident triggered PTSD symptoms and remains engrained in his memory is inconsistent with his service treatment records (STRs) which are silent for any mental health treatment, but show treatment for a host of other conditions. The Veteran also denied any mental health issues or concerns during his separation examination, and there is no record of mental health treatment for at least one decade later. Moreover, this is not a case where the Veteran was not aware of the procedures for filing a claim for benefits: The Veteran filed a service-connection claim for a right big toe condition in October 1975. If he had mental health issues since basic training that he believed were due to service, there has been no plausible explanation as to why he did not include such a claim in his original service-connection claim in 1975, but rather waited until 1999. The Veteran's contention is further contradicted by the fact that he did not mention the incident in his Information in Support of Claim for Service-connection for PTSD dated June 2, 1999. Rather, he submitted the second stressor incident approximately three months after the initial stressor statement. Similarly, despite sharing a bunk immediately adjacent to the choked Airman during basic training, the Veteran could not provide the name of the impacted Airman until more than a decade later, and only after his PTSD claim was denied repeatedly for the better part of a decade. The timing and contradiction of these statements is suspect and weighs against the Veteran's credibility. Furthermore, the Veteran's recent assertion that the choking incident soured his desire for a career in the military is contradicted by his MPRs which show that he unsuccessfully appealed the Air Force Discharge Review Board to change the nature of his discharge to allow for reenlistment. Compare, March 2017 Statement in Support of Claim, with, MPRs, p. 1, 2, 7, 12 (rec'd: July 26, 2016). A review of the remaining medical evidence and lay statements, including from T.R. and E.W., only document the existence of a possible condition and do not corroborate the Veteran's alleged stressors; thus, they are not probative. Altogether, the evidence lucidly indicates that "Airman Bex" is fictional. Thus, while the record contains a diagnosis of PTSD, the probative evidence of record shows there is no credible in-service stressor. Accordingly, service-connection for PTSD must be denied. B. Bipolar Disorder, MDD, and Anxiety Disorder Pursuant to VA regulations, personality disorders such as bipolar disorder are considered congenital or developmental defects. 38 C.F.R. §§ 3.303(c), 4.9; Winn v. Brown, 8 Vet. App. 510, 516 (1996). Congenital or development defects are not diseases or injuries within the meaning of the applicable legislation and are not subject to service-connection. Id. § 3.303(c), 4.9; Winn, 8 Vet. App. at 516. Therefore, service-connection for bipolar disorder is denied. While the record indicates diagnoses of MDD and anxiety disorder, another remand for a medical opinion is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Under McLendon, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 83. In this case, there is no evidence of MDD or anxiety disorder for more than two decades after discharge from service. Further, there is no indication that the MDD and anxiety disorder were linked to the Veteran's service. Further, the Veteran's recollection of events that would in any way associate this condition with service has clearly been placed into question, for reasons noted above. For these reasons, and the Board's credibility findings, a medical opinion regarding the etiology of the diagnosed MDD and anxiety disorder is not warranted under McLendon. The best evidence in this case indicates that if the Veteran has an acquired psychiatric disability other than a personality disorder, it began decades after service with no connection to service or any event in service. Further development would only place the examiner in the role of a "credibility determiner" which is the role of the undersigned. ORDER Entitlement to service-connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), bipolar disorder, major depressive disorder (MDD) and anxiety disorder, is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs