Citation Nr: 18158518 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 17-01 845 DATE: December 18, 2018 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety is denied. FINDING OF FACT The Veteran’s account of his in-service stressor is not credible. CONCLUSION OF LAW The criteria to establish entitlement to service connection for an acquired psychiatric disorder, to include PTSD and anxiety have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.304(f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1984 to May 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of the Newark, New Jersey Regional Office (RO). Acquired psychiatric disorder, to include PTSD and anxiety Service connection for PTSD requires medical evidence diagnosing the condition; 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) (2017). If the evidence establishes a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, 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 C.F.R. § 3.304(f)(1) (2017). 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 C.F.R. § 3.304(f)(2) (2017). 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. For purposes of this paragraph, “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). In his statements dated November 2013, January 2015 and August 2015, the Veteran asserted that on August 30, 1984 – approximately one month into his active service – he underwent a gas chamber training exercise, without a gas mask, where the Sergeant forced the Veteran to stay in the gas chamber longer by holding his hand. The Veteran further asserted that during the claimed in-service event, his eyes watered, nose ran and skin burned and when the Veteran reported the incident to sick call, he was accused of faking. Service treatment records (STRs) are silent for complaints or contemporaneous reports pertaining to the Veteran’s claimed in-service incident, watery eyes, runny nose or burned skin. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision). In the Veteran’s April 1986 pre-separation medical examination report, no psychiatric abnormalities were noted and the Veteran did not report the claimed in-service event. In addition, an April 1986 pre-separation mental status evaluation report revealed normal findings. The Veteran’s report of separation from the armed forces (DD Form 214) reflects that his duty specialty was infantryman. The Veteran undoubtedly underwent protective mask training as part of his initial military instruction. 38 U.S.C. § 1154(a) (2012) (due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence). In August 2015, the Veteran was afforded a VA examination. He was diagnosed with PTSD under the DSM-V. As his stressor, the Veteran reported to the examiner that he underwent an in-service gas chamber incident where he was held down by a superior for an extended period. The examiner indicated that the Veteran’s stressor was adequate to support a diagnosis of PTSD and that the stressor was related to the Veteran’s fear of hostile military or terrorist activity. In a December 2017 statement, the Veteran’s representative indicated that the Veteran reported experiencing the in-service gas chamber incident in 1986 where he was “physically restrained” by one of the trainers from leaving the gas chamber. The Board accords no credibility to either the Veteran’s account of being physically restrained as he describes in the gas chamber during a training exercise nor his allegation of being refused medical treatment. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (holding that the Board is charged with the duty to assess the credibility and weight given to evidence). The Veteran claims to have reported the details of the in-service gas chamber event at sick call; however, his STRs are silent concerning the claimed gas chamber event or any symptoms the Veteran claimed to have experienced as a result. Although the August 2015 VA examiner diagnosed the Veteran with PTSD, such diagnosis was based upon an inaccurate factual basis and, therefore, it is of no probative value. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background). Moreover, the Veteran’s brother’s statement is of no probative because it was also based upon an inaccurate factual basis. A preponderance of the evidence is against a finding that the Veteran underwent an in-service stressor. The Veteran’s account of his in-service stressor is not credible and the Veteran has presented no other credible supporting evidence that the in-service stressor occurred. Therefore, service connection is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel