Citation Nr: 1824835	
Decision Date: 04/25/18    Archive Date: 05/03/18

DOCKET NO.  09-29 738	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A-L Evans, Counsel


INTRODUCTION

The Veteran served on active duty from January to November 2003.  

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Board in February 2015.  A transcript of the proceeding is of record.

In August 2015 and April 2017, the Board remanded this claim for further development - including especially to try and corroborate the Veteran's alleged traumatic event in service ("stressor") that he believes caused him to have PTSD.  As a result of the more recent remand, there was compliance, certainly the acceptable substantial compliance, with the Board's remand instructions, in turn permitting the Board to proceed with adjudicating this claim.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).


FINDING OF FACT

The Veteran does not have PTSD as a result of a verified in-service stressor.


CONCLUSION OF LAW

The criteria are not met for entitlement to service connection for PTSD.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

As a preliminary matter, the Board has reviewed the claims file and finds there are no deficiencies in VA's duties to notify and assist the Veteran with this claim, certainly none that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).

The Veteran also as mentioned testified in support of this claim during a February 2015 videoconference Board hearing.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2017) requires that the VLJ conducting a hearing fulfill two duties to comply with this VA regulation.  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position.  Here, to this end during the Board hearing, the presiding VLJ fully identified the determinative issues, including emphasizing the type of evidence needed to show entitlement to service connection for this disability being claimed (both in terms of substantiating a stressor in service and consequent PTSD).  The Veteran was assisted during the hearing by a representative of a Veterans' Service Organization (VSO) - namely, Disabled American Veterans (DAV) - which, along with the presiding VLJ, asked pertinent questions to ascertain the extent of any potentially relevant evidence not then of record that might tend to support the claim.  Through his testimony and this line of questioning, the Veteran demonstrated his actual knowledge of the elements necessary to substantiate this claim for service connection.  Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim).  Neither he nor her representative has suggested any deficiency in the conducting of the hearing.  Therefore, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

The Board realizes the Veteran was not afforded a VA compensation examination regarding this claim.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159 (c)(4)(i).  However, as will be discussed, the required proof of a stressor in service has not been established, so there is no means of attributing the claimed PTSD to the Veteran's service.  An examination therefore is not warranted in this circumstance.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

II. Analysis

The Veteran is claiming entitlement to service connection for PTSD.  Service connection already has been been established for other mental illness (namely, for bipolar disorder, previously diagnosed as major depressive disorder).  Indeed, the Veteran initially had a 10 percent rating for this other mental illness, then a 30 percent rating, but now a 70 percent rating.  He therefore already is being compensated for a mental disorder, albeit another type.

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  See 38 U.S.C.A. § 1110 (2012); 38 C.F.R. § 3.303 (2016).  "To establish a right to compensation for a present disability, 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" - the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 


Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM); 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).

The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts.  Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991).  Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators.  Cohen v. Brown, 10 Vet. App. 128 (1997).

A review of the Veteran's service treatment records (STRs) does not show a complaint or diagnosis of PTSD in service.  38 C.F.R. § 3.304(f)(1).  This is not, however, a preclusion to granting service connection for PTSD.  38 C.F.R. § 3.303(d).

A post-service VA mental health note, dated in June 2012, reflects a diagnosis of PTSD.  But there still has to be attribution of the PTSD to the Veteran's service, and particularly to a stressor to support this diagnosis.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

The VA examiner noted that the Veteran reported witnessing a fellow serviceman being shot in his face when a gun exploded.  A private examiners note, dated in March 2015, reflects that the private examiner (a marriage and family therapist and licensed professional clinical counselor) treated the Veteran in 2012 and that she assessed the Veteran with PTSD.  The private examiner noted that the Veteran had witnessed a traumatic event while in service. 

During his February 2015 videoconference hearing and in May 2016 correspondence, the Veteran testified to being exposed to a stressor while in service.  In his correspondence, the Veteran stated that during weapons training, in May 2003, he was standing next to a fellow serviceman, A.N., when the gun that the serviceman was holding exploded in his face.  In the hearing testimony, it was noted that the serviceman did not die, however, the Veteran said he was traumatized by the incident and resultantly experienced nightmares and instability of his emotions. 

Pursuant to the Board's April 2017 remand directive, the Joint Services Records Research Center (JSRRC) was contacted to try and verify the Veteran's alleged stressor in service.  In June 2017, the Agency of Original Jurisdiction (AOJ) made a formal finding of a lack of information required to verify stressors associated with a claim for service connection for PTSD.  The memorandum detailed the efforts that had been made to verify the alleged stressor.  It was noted that the JSRRC did not have any record of the alleged stressor.  The JSRRC's response indicated a review of the historical documents, including the casualty date, did not show that the injury to A.N. had been found.  The memorandum concluded there was no evidence supporting the Veteran's statement.

The preponderance of the evidence is against this claim of entitlement to service connection for PTSD.  There are times when independent corroboration of a claimed stressor is not required, such as when the incident in question occurred in combat or in response to the Veteran's fear of hostile military or terrorist activity, or when he was a prisoner of war (POW) or is alleging he was personally assaulted or suffered military sexual trauma (MST).  See 38 C.F.R. § 3.304(f)(2), (3), (4) and (5).  But this is not the situation here.

The Veteran's VA treatment records indicate a diagnosis of PTSD based on his reported stressor, using the version of the manual that existed at the time (DSM-IV); however, even conceding the diagnosis, the Board finds that service connection is not warranted as there is no corroborating evidence of the claimed stressor's occurrence in service.

While a lay witness is competent to testify as to the occurrence of an in-service injury or incident where that issue is factual in nature, the Board finds that the lay statements submitted by the Veteran do not constitute competent evidence of the claimed stressor's occurrence.  West v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 9 (1993).  The only available evidence of the claimed stressor's occurrence is the written and oral testimony from the Veteran, himself.  While the Board may rely on other evidence, as outlined in the subparts of 38 C.F.R. § 3.304(f) mentioned (subparts (2), (3), (4) and (5)), there has not been any other evidence corroborating that the stressor in this particular instance occurred.  Thus, the Veteran has failed to establish the occurrence of the necessary inciting or precipitating event, as support for his eventual PTSD diagnosis.

The Board does not doubt that the Veteran is sincere in his claim.  Although the claims file includes a diagnosis of PTSD, a diagnosis alone does not constitute sufficient evidence for the grant of service connection.  No verified stressor exists.  Thus, service connection for PTSD is not warranted.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for PTSD is denied.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for PTSD is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs