Citation Nr: 18129331 Decision Date: 08/24/18 Archive Date: 08/24/18 DOCKET NO. 15-34 694 DATE: August 24, 2018 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran has active service from September 1983 to September 1987. 2. In-service stressors have not been verified; post-traumatic stress syndrome (PTSD) was not incurred in service and is not etiologically or causally related to service. CONCLUSION OF LAW PTSD was not incurred in or caused by active service. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. The Veteran is not service-connected for any disorders; therefore, consideration under a secondary theory of entitlement is not applicable. 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 the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). 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). 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). The ordinary meaning of the phrase “engaged in combat with the enemy,” as used in 38 U.S.C. § 1154 (b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). Additionally, the current version of 38 C.F.R. § 3.304(f)(3) states that when the claimed in-service stressor is related to the veteran’s “fear of hostile military or terrorist activity,” the following criteria applies: (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 that the claimed stressor is adequate to support a diagnosis of PTSD; and (3) the veteran’s symptoms are related to the claimed stressor. For purposes of 38 C.F.R. § 3.304(f)(3), “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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran claims he has PTSD due to in-service stressors. Turning first to the issue of combat, the Veteran served during peace-time, and has not claimed that he was engaged in combat. His record confirms lack of combat service. Accordingly, the combat provision of 38 U.S.C. § 1154(b) and the specific provisions regarding combat in the context of PTSD claims, do not apply. Further, the Veteran has not claimed nor has evidence shown that he was a prisoner-of-war or that his trauma is based on in-service personal assault, and as such the specific provisions regarding each in context of PTSD claims do not apply. Next, the Veteran has not claimed stressors related to the fear of hostile military or terrorist activity. His stressors, as discussed below, involve an accidental missile strike by an Iraqi fighter on a different U.S. Naval ship, and retrieving bodies from the water. It is unclear whether the bodies were related to the missile streak. The Veteran’s service was in peace time, and the missile strike was incidental and upon a different ship. There is no other record of hostile military or terrorist activity directly impacting him for the duration of his service. As such, the specific provision regarding fear of hostile military or terrorist activity does not apply. Turning to the evidence within that framework, the first element of service connection – a current diagnosis of PTSD – is met. VA medical records show treatment for PTSD since an original diagnosis in an October 2012 evaluation, until the most recent available September 2017 records. As such, the first element of service connection is met, and a current diagnosis is shown. As for evidence of treatment or diagnosis in service, service treatment records (STRs) reveal no complaint of, diagnosis of, or treatment for PTSD or any other mental disorder. However, he claims is that stressors in service, rather than treatment or diagnosis, are the cause of his current disability. As such, the specific provision regarding a diagnosis of PTSD during service does not apply. Instead, the Veteran claims PTSD is due to the following events in service: • the helicopter that brought him to the flight deck of the USS Gallery could not land due to weather concerns, forcing him to jump out as it hovered above the deck in approximately February 1984; • he was exposed to chemicals or gasses during training and had to keep gas masks off for additional time if someone else put their own gas mask on prior to being instructed; • a sister ship USS Stark was struck by a missile launched by an Iraqi fighter, killing many servicemen including friends of the Veteran; and • he described fishing bodies out of the water in the Persian Gulf with a “human grappling hook.” It is unclear if the bodies were related to the USS Stark incident. The RO made a formal finding of lack of information required to corroborate the stressors in a September 2013 memorandum. This finding was made following submission of stressor verification information by the Veteran in April 2013 and responding to a request for additional information, a second submission in June 2013. The June 2013 MAP-D Development letter requesting additional information wanted more detail of the helicopter incident – the Veteran provided additional information in his June 2013 submission, but did not narrow the date range or explain from what distance he jumped. He did not provide the name of anyone who may have witnessed the event. The RO also directed the Veteran to provide additional information regarding the “bodies he fished out” of the Persian Gulf, specifically dates of the recovery mission and the names of the recovered. The Veteran failed to provide or address either in his June 2013 submission. Further, his STRs show his MOS throughout service, a seaman recruit, seaman apprentice, and a sonar technician, along with recorded training do not demonstrate any specialty which increase the likelihood he would be performing live-sea body recovery. As for the incident regarding the USS Stark, evidence shows clearly that the missile attack and resulting deaths occurred. However, it was an incident that did not occur with the Veteran aboard, he did not witness it, and it was not during a time of war. It is unclear if he ever saw the ship in person at any point after the attack. He has not indicated that the bodies he fished out of the Persian Gulf were related to the missile attack. No evidence shows that the USS Gallery was nearby following the attack or assisted with any rescue operation. With the information currently provided by the Veteran, the stressor is not directly related to his own actions. The Veteran’s claim of the gas exposure during training has not been confirmed by the RO. However, during his treatment and evaluation for PTSD, the issues of his friends dying during service and fishing bodies out of the Persian Gulf were the primary stressors connected to PTSD diagnoses. A VA clinical psychologist found the incident insufficient as a stressor resulting in PTSD as it did not involve actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others. So, the gas exposure has neither been confirmed as in-service stressor, nor has it been etiologically connected to his current disability. As no in-service stressor has been confirmed that has also been listed as an etiological cause of his current disability, the weight of the evidence is against the claim and the appeal for service connection is denied. The Board has considered the Veteran’s lay statements that PTSD was caused by active service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the various reports and memorandum regarding in-service stressors, the medical evidence, and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to this evidence than to his statements. In light of the above discussion, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brendan A. Evans, Associate Counsel