Citation Nr: 1817829 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 15-39 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION The Veteran represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1954 to February 1956. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In January 2018, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge. A transcript of the testimony has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) (formerly Virtual VA) electronic claims files. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran did not engage in combat against enemy forces and his alleged in-service stressor has not been independently verified. 2. An acquired psychiatric disorder was not shown in service, and the Veteran is not shown to have an acquired psychiatric disorder that is due to in-service event or occurrence. There is no contention or finding that the Veteran ever had a psychosis. CONCLUSION OF LAW The criteria to establish service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing and in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). Lay Evidence Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). The Veteran Assertions The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD, based on the in-service stressor event of witnessing the death of his friend in a motor vehicle accident. He further contends that due to the passage of time, as well as the 1973 VA records fire, he should be allowed reasonable doubt as to the occurrence of the event. Acquired Psychiatric Disorder, to include PTSD Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128 (1997). The diagnostic criteria, including those related to stressors for mental disorders, set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-V) have been adopted by VA. 38 C.F.R. § 4.125 (2013). A diagnosis of PTSD requires exposure to a traumatic event and a response involving intense fear, helplessness, or horror. A stressor involves exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and the person's response involved intense fear, helplessness or horror. See Cohen, 10 Vet. App. 128. The sufficiency of a stressor is a medical determination and is presumed by a medical diagnosis of PTSD. Id. The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether the Veteran engaged in "combat with the enemy," as established by official records. See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Although the Veteran served during a time of war, according to his Certificate of Release or Discharge from Active Duty (Form DD 214), he did not serve overseas and, therefore, he did not engage in combat. Indeed, in the Veteran's testimony at the January 2018 Board hearing, he stated he served approximately 19 months, he subtracted five months from that and stated that the rest of his service was at Fort Lewis, Washington. He further testified that the stressor event occurred during the return from maneuvers "in Fort Lewis, Washington." For stressors unrelated to combat, credible supporting evidence is necessary in order to grant service connection. "Credible supporting evidence" of a non-combat stressor may be obtained from service records or other sources. Moreau v. Brown, 9 Vet. App. 389 (1996). The Court has held that the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor." Dizoglio, 9 Vet. App. 163. Therefore, the Veteran's lay testimony is insufficient, standing alone, to establish service connection. Cohen, 10 Vet. App. at 147 (citing Moreau, 9 Vet. App. at 395). It is the Board's responsibility to assess the credibility and therefore the probative value of proffered evidence of record in its entirety. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, plausibility and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The law provides, however, that the Board is not required to accept a veteran's uncorroborated account of his or her active service experiences. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). It is also clear that the Board is not required to accept a veteran's statement regarding his alleged symptoms, including nightmares, flashbacks and other difficulties associated with active service, if the Board does not find the statements of symptoms credible. The Veteran's available service treatment record (STR) shows that, in his February 1956 separation examination, "Normal" was checked for the psychiatric category. Further, other than excessive use of alcohol, a 2004 record noting anxiety did not provide findings or diagnoses of acquired psychiatric pathology. Between November 2009 and July 2010, the Veteran's progress notes for general examinations at Oklahoma City VA indicate that his PTSD screenings were negative. In December 2014, the Veteran's private treatment psychologist, Dr. K.E.D., issued a medical statement, in which he set forth the symptoms the Veteran exhibits and concluded that these symptoms are consistent with a diagnosis of PTSD. He opined that Veteran "suffers from severe PTSD resulting from his active duty service in the military." As stated earlier in this decision, the Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran attests that he developed PTSD as a result of witnessing the death of his friend in a motor vehicle accident, in which the truck his friend was driving veered off a highway, went over a cliff and plummeted approximately 300 yards down the embankment and into the Yakima River. Because this claimed stressor is not related to combat or fear of hostile military activity, independent corroboration is necessary. However, the Veteran has not submitted any statement by a witness to the incident. The only name the Veteran has offered throughout the appeal is his friend's last name, which at the hearing he could state phonetically, but could not spell. In prior submissions, various spellings appear. The claims file contains a November 2013 Request for Information, submitted to the Personnel Information Exchange System (PIES), through which VA requests service records and information from the National Personnel Records Center (NPRC) and the individual branches of service. The request sought Morning Reports for Company A of the 34th Engineer Battalion, April 17-18, 1955, pertaining to the above accident and stating the last name of the soldier killed. The request is followed by the response, which states: "The allegation has been investigated and the following results were found: Searched requested unit from 4/01/1955 to 04/30/1955. No remarks found pertaining to allegation." Other than his own statements and testimony, the Veteran has submitted as corroborating evidence an excerpt from a United States Army Troop Handbook, opened to a page entitled "Health and Safety," showing photographs of a wrecked truck being removed from a river. The captions of the photographs state Sunday, April 17th. Based on this evidence, the Veteran has identified the date of the accident as Sunday, April 17, 1955. However, the above captions do not state the year. The captions further state that the driver was killed in the accident, but do not mention his name. Other than his own statements, his testimony and the excerpt from this handbook, the Veteran has submitted no other evidence to corroborate his account of his in-service non-combat stressor event. For these reasons, the Veteran's account of his stressor lacks credible supporting evidence and cannot be otherwise verified. The record indicates that the Veteran submitted his claim for service connection for PTSD in July 2012. There is no evidence that the Veteran has another acquired psychiatric disorder that is related to his active duty service. A clear diagnosis of PTSD by VA treating personnel also is not of record. As indicated above, the STRs do not show complaints or treatment for an acquired psychiatric disorder either during service or within a year afterward. Furthermore, the Board has also considered whether service connection for a psychiatric disorder is warranted on a presumptive basis. Psychosis shall be presumed to have been incurred in service when a veteran has served continuously for 90 days or more during a period of war or peacetime and it manifests to a degree of 10 percent or more within one year from termination of service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, there is no evidence that the Veteran was diagnosed with or was otherwise shown to have a psychosis, during service or manifesting within one year from termination of service. Therefore, the presumption is inapplicable. The December 2014 medical statement of Dr. K.E.D. stated that the Veteran's symptoms are consistent with a diagnosis of PTSD. Dr. K.E.D. went on to opine that the Veteran's PTSD resulted from his active duty service. Yet, he does not offer an explanation or rationale as to why this is so. Moreover, Dr. K.E.D. can only have based his conclusion on the Veteran's reports of the in-service stressor. However, an opinion by a medical health professional based on post-service examination of the Veteran cannot be used to establish the occurrence of a stressor. See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). From this essential deficiency in the reasoning of Dr. K.E.D.'s opinion, the Board can only conclude that his diagnosis and opinion are not competent and probative evidence, as they are based on a report of a non-combat stressor event which has not been verified. As now repeatedly stated, the record contains nothing to corroborate the stressor event. As the Veteran did not serve in combat and the stressors are not related to combat, his testimony alone is insufficient as a matter of law to establish the occurrence of the claimed stressor. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Conclusion The Board has carefully reviewed and considered the Veteran's January 2018 Board hearing testimony, as well as his October 2012 Statement in Support of Claim, the statement accompanying his April 2015 Notice of Disagreement and the statement accompanying his December 2015 VA Appeals Form 9. All of these have helped the Board in understanding better the nature and development of the Veteran's disorder and how it has affected his life. As stated earlier in this decision, lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of a stressor event, which was within his observation and there is no reason to doubt his credibility. However, the Board must emphasize that, as a matter of law, his statements cannot establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). There must be independent evidence to corroborate the Veteran's statements as to its occurrence. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must also look to the medical evidence when there are contradictory findings or statements inconsistent with the record and it must rely on clinical findings and opinions to establish the connection of the Veteran's current disability to a service-related event, injury or illness. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). As already stated, Dr. K.E.D's diagnosis and opinion are based on an unverified non-combat stressor and cannot in turn, in and of themselves, verify the occurrence of the stressor. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). For the foregoing reasons, the Board finds that the claimed stressor on which the Veteran bases his claim for service connection for PTSD is a non-combat stressor, uncorroborated and not independently verified and, therefore, there is no credible supporting evidence for the claim of service connection. There is no other psychiatric disorder shown or diagnosed that is in any way related to in-service occurrence or event. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs