Citation Nr: 1808201 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-01 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety, and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1963 to January 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In March 2013 the Veteran had a video hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In March 2014 and May 2017, the Board remanded the case for additional development. FINDINGS OF FACT 1. The Veteran's psychiatric disability did not manifest in service, nor did a psychosis manifest to a compensable degree within one year of separation from service. 2. The preponderance of the evidence of record is against a finding that PTSD was incurred in service, or is related to any event during service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1116(f), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor representative has raised any issues with the duty to notify or duty to assist. 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. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2017); 38 C.F.R. § 3.303 (a) (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires (1) medical evidence of a diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a) (2017); American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), 1994. When a claimed in-service stressor is related to the Veteran's fear of hostile military or terrorist activity, the following must be demonstrated to establish service connection for PTSD: (1) the claimed stressor is consistent with the places, types and circumstances of the Veteran's service; (2) a VA psychiatrist or psychologist, or contract equivalent, confirms the claimed stressor is adequate to support a diagnosis of PTSD; and (3) the Veteran's symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3) (2017). 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). The Veteran contends that he is entitled to service connection for a psychiatric disability, to include PTSD, based on a service incident in July 1965. During the March 2013 video hearing, the Veteran testified that his ship, the USS Stribling (DD-867), received orders to go to battle stations. The Veteran testified that during that mission, they were informed that "a group of marines were being overrun by the enemy in Vietnam." The Veteran stated that as a result, they were ordered to go to their battle stations where he fired weapons for "a very long time." In a March 2014 statement, the Veteran asserted that following the incident, he felt "numb and sick" and "maybe hundreds died before a cease fire came." The Veteran asserts that those events took place in June 1965 or July 1965. In April 2010 the Veteran was diagnosed with PTSD that conforms to DSM-5 criteria. In April 2012, a readjustment counselor opined that "the Veteran's problems fully meet criteria for assessment of Posttraumatic Stress Disorder and Recurrent Major Depressive Disorder, caused by his combat experience in Vietnam." It was noted that the Veteran's service records would be reviewed once the physician received them. In a June 2014 VA examination, an examiner opined that the Veteran's PTSD was related to the claimed in service stressor and pre-service sexual trauma. The rationale provided by the examiner was that based on review of the record, VA medical records, and the results of the current clinical interview and psychological test findings, it was the opinion of the examiner that the PTSD diagnoses was at least as likely as not caused by or a result of identified combat and service-related stressors based on Veteran's self-report of stressor events to be independently verified. In April 2015, the Defense Personnel Records Information Retrieval System (DPRIS) submitted information to the RO noting that the USS Stribling was not near Vietnam as alleged by the Veteran, nor was it engaged in combat during the time frame provided. The records indicated that the USS Stribling conducted naval gunfire support qualification operations in the vicinity of Culebra, Puerto Rico during January 1965 through March 1965. Following that, the USS Stribling departed for the Mediterranean Sea where it engaged in more naval gun support exercises off the coast of Greece from May 1965 through September 1965. That information was not available to the April 2012 adjustment counselor or the June 2014 examiner. In April 2017, a letter was submitted by a readjustment counselor stating that the Veteran's PTSD was due to service in the Vietnam War. The Veteran's service records do not indicate that he served in Vietnam, and DPRIS noted that the ship the Veteran was stationed on did not go near Vietnam during his time in service. The Veteran did not receive any awards or decorations during service indicative of having served in combat. As a result, the Board finds that letter to be of little probative value. The Board finds that the preponderance of the evidence supports a finding that the Veteran did not serve near Vietnam during service and did not engage in combat with the enemy during service. The Board notes that while a positive opinion was given in June 2014, that opinion was based on a review of the file in June 2014, and was provided prior to receipt of documents indicating that the USS Stribling was not in Vietnam during the alleged timeframe. At that time, the Veteran had not had a PTSD examination since June 2014. As a result, the Board remanded the claim in May 2017 for another examination. That examination was to address whether PTSD or any mental disorder was a result of an in service stressor or related to a pre-service sexual trauma. In a June 2017 VA examination, the Veteran was diagnosed with PTSD, delayed expression, major depressive disorder, and mild to moderate alcohol use disorder, in sustained remission. The examiner opined that the Veteran's psychiatric disability was not incurred in service or related to any in service incident. The rationale provided by the examiner was that the Veteran reported stressors of being involved in fire support in the Gulf of Tonkin, but the evidence of record showed that the USS Stribling was not in the Gulf of Tonkin, or near Vietnam, or engaged in fire support there. Furthermore, in response to the Veteran's report of childhood abuse, the examiner opined that it was unclear if the Veteran met diagnostic criteria for a psychiatric disorder during that time. There was no clear and unmistakable evidence that a psychiatric disability existed prior to the Veteran entering service, and although he reported some symptoms, he was never seen or diagnosed with a psychiatric disability prior to service. As a result, the examiner opined that the Veteran's had PTSD with delayed expression. The major depressive disorder was noted to be in part secondary to the PTSD due to childhood trauma, but also in part due to financial and family issues. At the June 2017 examination, the Veteran reported a stressor of being in rough seas during service and reported fear of death at the time. The examiner noted that records showed no evidence of that incident and the Veteran did not report current symptoms related to that event during the evaluation that would meet criteria for a psychiatric disorder. The examiner explained that previous diagnoses for PTSD had previously been given related to reported service stressors, but those were based on the Veteran's self-report without any available evidence. At the most recent examination, which had access to the service records showing that the Veteran's ship was not near Vietnam, the Veteran was diagnosed with major depressive disorder that appeared to be secondary to PTSD, due to childhood trauma. The Board also finds that because the service records show distinctly different information regarding the Veteran's service than he contends, that his contentions lack credibility. Therefore, the Board finds that other statements that he has made in furtherance of a claim for benefits regarding other stressors also lack credibility. The Veteran has not submitted any additional competent evidence that relates PTSD to service, with consideration of the actual documented circumstances and locations of his service. To the extent that the Veteran himself suggests that his PTSD is a result of active service, the Board finds that the Veteran is not competent to offer that etiological opinion. The evidence does not show that the Veteran has medical training or expertise that would make him competent to provide an opinion on a medical matter such as the diagnosis and etiology of PTSD. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). The Board finds that the preponderance of the evidence supports a finding that PTSD is not due to any verified service stressor, or to a fear of hostile military or terrorist activity. The preponderance of the evidence supports a finding that the Veteran did not engage in combat with the enemy during service. The preponderance of the evidence supports a finding that the current psychiatric disability is not related to service or any event, injury, or disease during service. The most probative evidence is the June 2017 examination which had access to the service records regarding the location of the Veteran's ship during his service. The Board finds that the previous opinions which relied on an uncorroborated factual premise which has not been corroborated have extremely low probative value. In addition, the June 2014 examiner diagnosed PTSD pending verification of the claimed stressors, which did not occur. Therefore, the Board finds low probative value for that examination. The April 2017 letter diagnosed PTSD based on service in the Vietnam War. The Board finds that the preponderance of the evidence is against a finding that the Veteran was in proximity to the Vietnam War. Therefore, that opinion has very low probative value. The April 2010 opinion diagnosed PTSD based on service in Vietnam. The preponderance of the evidence is against a finding that the Veteran had service in Vietnam. Therefore, that opinion has very low probative value. Accordingly, the Board finds that the preponderance of the evidence weighs against the claim for service connection for a psychiatric disability, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety, and depression is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs