Citation Nr: 18147895 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-61 992 DATE: November 6, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder with mixed anxiety and depressed mood, is denied. FINDINGS OF FACT 1. The Veteran does not have PTSD that is related to a verified in-service stressor or fear of hostile military or terrorist activity; he did not engage in combat, and there is no credible evidence corroborating the Veteran’s alleged in-service stressor. 2. An acquired psychiatric disorder, to include PTSD and adjustment disorder with mixed anxiety and depressed mood, did not manifest in service and is not otherwise related to service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD and adjustment disorder with mixed anxiety and depressed mood, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1963 to January 1967. The record indicated the Veteran receives Social Security Administration (Social Security) disability benefits. The Court has held on a number of occasions that where a veteran receives Social Security benefits which are based on the determination of disability, those records are potentially relevant and should be obtained. Social Security records are relevant to a claim and VA must obtain them where either (1) there is a Social Security decision pertaining to a medical condition related to the one for which the veteran is seeking service connection or (2) there are specific allegations “giv[ing] rise to a reasonable belief” that the Social Security records may pertain to the claimed disability. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). However, for the issue being decided in this decision, the Board finds that the Social Security records are not relevant. The issue of service connection for PTSD is decided based on medical opinions as to whether PTSD is related to service rather than medical history or a determination regarding the Veteran’s current level of disability; therefore, a remand for Social Security records is not necessary. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Certain chronic diseases, including psychoses, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2018). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). Psychoses are among those diseases for which this presumption and continuity of symptoms are available. 38 C.F.R. §§ 3.309, 3.384 (2018). The standard of proof to be applied in decisions on claims for Veterans’ benefits is set forth at 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990) 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and adjustment disorder with mixed anxiety and depressed mood. The Veteran asserts that he has PTSD as a result of his active service. Establishing service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (2017); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304 (f). With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV). The Board notes that the DSM-IV has been recently updated with a Fifth Edition (DSM-5), and VA has issued an interim final rule amending certain provisions in the regulations to reflect this update, including 38 C.F.R. § 4.125(a). 79 Fed. Reg. 45093. The amendments only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014, and do not apply to appeals already certified to the Board or pending before the Board. Id. Concerning the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, Section 3.304(f) sets forth circumstances that are exceptions to this rule and allow a claimant’s lay testimony, alone, to establish the occurrence of the alleged stressor. In the first circumstance, if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided the 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 C.F.R. § 3.304 (f)(1). In the second circumstance, 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 the 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. § 3.304(f)(2). In the third circumstance, if a stressor claimed by a veteran is related to his “fear of hostile military or terrorist activity” and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms 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. § 3.304(f)(3). For purposes of this relaxed evidentiary standard set forth in this subsection, “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. Id. In the fourth circumstance, if the evidence establishes the Veteran was a prisoner-of-war (POW) under the provisions of section 3.1(y) of the regulations, and the claimed stressor is related to that POW experience, in the absence of clear and convincing evidence to the contrary, and provided the 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. § 3.304(f)(4). If one of the above exceptions does not apply, then the Establishing service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (2017); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304 (f). With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV). The Board notes that the DSM-IV has been recently updated with a Fifth Edition (DSM-5), and VA has issued an interim final rule amending certain provisions in the regulations to reflect this update, including 38 C.F.R. § 4.125(a). 79 Fed. Reg. 45093. The amendments only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014, and do not apply to appeals already certified to the Board or pending before the Board. Id. Concerning the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, Section 3.304(f) sets forth circumstances that are exceptions to this rule and allow a claimant’s lay testimony, alone, to establish the occurrence of the alleged stressor. In the first circumstance, if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided the 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 C.F.R. § 3.304 (f)(1). In the second circumstance, 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 the 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. § 3.304(f)(2). In the third circumstance, if a stressor claimed by a veteran is related to his “fear of hostile military or terrorist activity” and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms 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. § 3.304(f)(3). For purposes of this relaxed evidentiary standard set forth in this subsection, “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. Id. In the fourth circumstance, if the evidence establishes the Veteran was a prisoner-of-war (POW) under the provisions of section 3.1(y) of the regulations, and the claimed stressor is related to that POW experience, in the absence of clear and convincing evidence to the contrary, and provided the 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. § 3.304(f)(4). If one of the above exceptions does not apply, then the Veteran’s statements alone will not be sufficient to establish an in-service stressor, but must be corroborated by credible supporting evidence. Dizoglio v. Brown, 9 Vet. App. 163 166 (1996). The available evidentiary sources for corroboration of a claimed stressor are not limited to service records (as required prior to the adoption of 38 C.F.R. § 3.304 (f)), but may also include other sources of evidence. Corroboration of every detail of the stressor is not required. Pentecost v. Principi, 16 Vet. App. 124, 128 (2002). Moreover, a veteran’s actual presence during the stressor event need not be specifically corroborated if the evidence shows that he was assigned to and stationed with a unit that was present when a reported event that has otherwise been verified occurred; such evidence strongly suggests actual exposure to the stressor event. Id. In general, with the exception of stressors based on personal assault, “after-the-fact medical nexus evidence,” such as a VA examiner’s finding that a claimant’s PTSD was caused by the alleged in-service stressor, cannot by itself serve as credible supporting evidence of the claimed in-service stressor. In this case, the Veteran does not assert, and there is no evidence otherwise showing, that he engaged in combat with the enemy or was a prisoner of war. See VAOPGCPREC 12-99 (65 Fed. Reg. 6,257 (2000) (providing that, in order to establish that a Veteran “engaged in combat with the enemy,” it must be shown that the Veteran “personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality”). Further, service treatment and personnel records do not reflect any complaints or treatment for psychiatric problems during service. The Board finds that service connection for PTSD cannot be granted. Here, the Veteran submitted numerous lay statements alleging that he was involved in a plane crash in October 1965 while en route to Goose Bay Air Force in Canada in a C131 aircraft which, in turn, caused symptoms of PTSD. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The credibility of his statements is another matter, however. A November 2016 VA memo reflects that a coordinator from the U.S. Joint Service Records Research Center (JSRRC) issued a formal finding of a lack of information required to corroborate the Veteran’s stressors. The memo stated that after review of the Veteran’s information, there was no documentation which verified an incident involving a C131 aircraft mishap or crash en route to Goose Bay Air Force base in October 1965. No evidence which contradicts this finding is of record. Significantly, neither the Veteran nor any of his attending physicians have concluded that his reported PTSD symptoms were related to his active service. The Board finds that the actual research into the matter by the service department contradicts the Veteran’s assertions, and is more probative than the Veteran’s account. Accordingly, the Veteran’s claimed PTSD cannot be attributed to his active deployment. Additionally, the Veteran was afforded a VA examination in July 2012 at which the examiner opined the Veteran did not have a current diagnosis of PTSD or any other mental disorder. Medical evidence of record reflects that the Veteran has had a positive PTSD screening. The Board acknowledges the positive PTSD screening and subsequent VA treatment records indicating that the Veteran has a history of PTSD. However, these medical records do not include any other information regarding the Veteran’s apparent PTSD diagnosis, to include identifying what stressor caused it. Thus, even assuming arguendo that the Veteran’s medical records document a diagnosis of PTSD, there is no credible supporting evidence that any claimed in-service stressor actually occurred, nor is there medical evidence of a link between the Veteran’s current symptomatology and any in-service stressor. Therefore, service connection for PTSD must be denied. C.F.R. § 3.304 (f). The Board notes the Veteran has been diagnosed with adjustment disorder with mixed anxiety and depressed mood. The Board has considered whether service connection is warranted for this condition as well; however, the evidence of record does not demonstrate a causal link between that diagnosis and the Veteran’s military service. The Veteran’s service treatment records are silent for complaints or treatment of any psychiatric symptoms, and there is no medical opinion linking the Veteran’s current anxiety disorder to active military service. Therefore, the Board must deny entitlement to service connection for an acquired psychiatric disorder. Although the Veteran has stated that he has an acquired psychiatric disorder that is related to his military service, the Board finds that his contentions in this regard are not competent. While he is competent to report psychiatric symptoms and their onset, he is not competent to report whether those particular psychiatric symptoms amount to a psychiatric disability. See Washington, 19 Vet. App. 362, 368. Such a differentiation is not capable of lay observation, such as the presence of varicose veins or ringing in the ears; medical expertise is required, as it is a complex psychiatric determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, as the Veteran’s assertions are not competent to establish that a current acquired psychiatric disorder had its onset in service, they are likewise of no probative value in supporting such a conclusion. In reaching the conclusions above 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. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel