Citation Nr: 1824903 Decision Date: 04/25/18 Archive Date: 05/03/18 DOCKET NO. 14-25 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD) for substitution purposes. ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to February 1975. He died in February 2017. The appellant is the custodian of the Veteran's child and has been substituted as the claimant in this matter to complete the processing of the deceased Veteran's claim. See March 2018 letter to the appellant from the RO. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. With regard to the appellant's PTSD claim, the Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any psychiatric disability that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). While the record contains evidence of a diagnosis of major depressive disorder, this claim was denied in a May 2014 rating decision. Although the Veteran filed a notice of disagreement, he did not perfect his appeal with the filing of a substantive appeal following the issuance of a statement of the case dated February 2015 which continued the denial of the claim. The Veteran had previously specifically restricted his claim currently on appeal to service connection for PTSD. See, e.g., the Veteran's statement dated February 2013. Accordingly, the Board has not expanded the issue of service connection for an acquired disorder to include major depressive disorder and finds that this issue is not under appeal. FINDINGS OF FACT 1. The Veteran did not engage in combat with an enemy. 2. The Veteran's claimed stressors have not been verified. 3. PTSD did not manifest in service and is not attributable to service. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks entitlement to service connection for PTSD. Duties to Notify and Assist The appellant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "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"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection for PTSD The appellant contends that the Veteran had PTSD that was related to his service. Although no specific in-service stressor has been reported, the Veteran indicated in his June 2014 substantive appeal that a "violent incident" caused his PTSD. Veterans are entitled to compensation from VA if they develop disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). According to VA regulations, entitlement to service connection for PTSD requires that three elements be present: (1) evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressors actually occurred; and (3) a link between current symptomatology and the claimed in service stressors. See 38 C.F.R. § 3.304(f) (2017). With regard to the second PTSD criterion, evidence of in-service stressors, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d) (2017). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. Service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Action Ribbon, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2017). Effective July 13, 2010, VA has amended its adjudication regulations governing service connection for PTSD with respect to the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) 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. The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010 but have not been decided by the Board as of July 13, 2010. Because the Veteran's PTSD claim was appealed to the Board after July 13, 2010, the Board observes that the updated version of the regulation is applicable. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board notes that a December 2013 VA treatment record noted a positive PTSD screening test. Although the evidence does not otherwise indicate that the Veteran had PTSD, with regard to evidence of a verifiable in-service stressor, the claim fails on this basis. In this regard, the Board notes that there is no objective evidence to show combat participation by the Veteran. The Veteran's DD Form 214, his service personnel records, and his statement of duty assignments which have been associated with his VA claims folder are negative for any indication that he served in combat. Here, the appellant has not contended that the Veteran engaged in combat or was in fear for his life when the claimed stressful incidents occurred or was otherwise related to hostile military activity. Thus, credible evidence corroborating the occurrence of the claimed in-service stressors is required. The Veteran's service personnel records document his MOS as a petroleum storage specialist. His service records further note his service at Germany. Crucially, however, the Veteran's personnel records do not verify any reported stressor concerning a "violent incident" or any other in-service stressor. Similarly, his available service treatment records do not document any mental health treatment or report of his claimed stressor. Indeed, neither the appellant nor the Veteran provided any specific in-service stressor other than the aforementioned violent incident and have not indicated when or where the incident occurred. Therefore, in June 2013, the RO determined that there was insufficient information to corroborate the Veteran's claimed stressors. The Board reiterates that the appellant has been provided notice of the requirements necessary to substantiate a claim of service connection for PTSD, specifically evidence of a credible in-service stressor. As such, additional development of the Veteran's claimed stressors would be useless. Crucially, the Veteran's available service treatment records and personnel records reveal no evidence of the Veteran's claimed stressors. While the Veteran was competent to attest to his in-service experiences and observable symptoms, in light of the evidence discussed immediately above, the Board finds that there is no supporting evidence of an in-service stressor. Pertinently, the Veteran did not submit any corroborating evidence of such. In short, there is no evidence, to include the statements proffered by the appellant or Veteran which serves to verify the Veteran's claimed stressors. As such, service connection is not warranted for PTSD. For the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for PTSD. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for PTSD for substitution purposes is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs