Citation Nr: 20007159 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-48 572 DATE: January 28, 2020 ORDER Entitlement to service connection for psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depressive disorder with anxiety, is denied. Entitlement to service connection for left leg muscle injury is denied. Entitlement to service connection for breathing problems, bronchitis is dismissed. FINDINGS OF FACT 1. The Veteran’s psychiatric disorder, to include PTSD and depressive disorder with anxiety, did not have its onset during active service and was not caused by his active service; there is no credible supporting evidence of the occurrence of an in-service stressor for PTSD. 2. The Veteran does not have a current left leg muscle injury disability. 3. At the Veteran’s September 2019 hearing, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that a withdrawal of his appeal on the issue of entitlement to service connection for breathing problems, bronchitis was requested. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for psychiatric disorder, to include PTSD and depressive disorder with anxiety, have not all been met. 38 U.S.C. §§ 1131, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for left leg muscle injury have not all been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for withdrawal of entitlement to service connection for breathing problems, bronchitis by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Army from August 1973 to November 1973, with additional service in the Army National Guard. During his service, the Veteran was on active duty for training (ACDUTRA) status, as well as on inactive duty for training (INACDUTRA) status, for multiple periods. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for breathing problems, bronchitis; left leg muscle injury; and PTSD. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in September 2019; a transcript of that hearing is associated with the claims file. Service Connection Generally, service connection for a disability requires evidence of: (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 Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 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). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA), or from injury incurred or aggravated while performing inactive duty for training (INACDUTRA/IDT). 38 U.S.C. §§ 101(24), 106, 1131. ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). INACDUTRA/IDT is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard. Id. Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106 (d); 38 C.F.R. § 3.6 (e). When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. See 38 U.S.C. §§ 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran” for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101 (2), (24); See Acciola, 22 Vet. App. at 32. 1. Entitlement to service connection for psychiatric disorder, to include PTSD and depressive disorder with anxiety, is denied. The Veteran asserts that he developed a psychiatric disorder, to include PTSD, as a result of his active duty service when he witnessed the death of another soldier by a heart attack. Turning to the evidence of record, a review of the Veteran’s service treatment records (STRs) reveals no complaints, treatment, or diagnosis of psychiatric disorders during active military service. The January 2013 VA treatment records reflect that the Veteran was negative for depression and PTSD screening. A correspondence received in April 2018 documents that research conducted by the VA of the US Army historical records coordinated with the National Archives and Records Administration reflects that there was no document of the incident described by the Veteran pertaining to the name of the fellow soldier, Sergent (SGT) D.B. However, there was document of the death of an SGT T.D.B. whom died of a heart attack at Camp Shelby in April 1987. The correspondence further noted that they could not document that the Veteran’s unit was having annual training at Camp Shelby in April 1987. The October 2017 VA treatment record indicates that the Veteran has PTSD in accordance with DSM-5. The VA licensed social worker noted that the Veteran’s stressful event was experiencing the death of his friend in 1987. The examiner noted that the Veteran reported that when he was in the military, during his two-week training, he and another soldier, D.B., were running in physical training (PT). The Veteran reported that D.B. did not feel well and that D.B. was made to continue running during PT. The Veteran reported that during the run, D.B. passed out and died and that he carried him back to base on his back. The Veteran also reported that he was upset with the military because they forced him out of the military. The examiner noted that Veteran reported that he has problems sleeping, he wakes up throughout the night, and that he has depression and anxiety. The examiner also noted that the Veteran is diagnosed with adjustment disorder. October 2017 to April 2018 VA treatment records document positive screening for depression and PTSD. The April 2018 VA treatment records reflect that the Veteran has an adjustment disorder mixed with anxiety and depression in accordance with DSM-5. The Veteran was afforded a VA examination in August 2018. The psychologist noted that the Veteran does not have a PTSD diagnosis that conforms to DSM-5. Each criterion for PTSD was addressed and all were found not to be present. The examiner noted that the Veteran had symptoms of depressed mood, anxiety, and disturbances of motivation and mood. Furthermore, the examiner noted that the Veteran has depressive disorder with anxiety. The examiner noted that the Veteran reported that he saw a fellow soldier die from a medical condition in service and that he then confronted military superiors regarding why they did not provide the fellow serviceman treatment instead of insisting he continue physical training. The Veteran stated that he reported the military superiors in question and then he was confined to a room where they forced him to sign papers to leave the service and threatened his life. The examiner noted that a review of the record revealed a letter to the Veteran from the Inspector General (IG) of the Alabama State Military Department Office of Adjutant General. The examiner noted that the letter indicated the IG’s investigation of the Veteran’s reports regarding events at Camp Shelby in or around May 1987 found the reports to be unsubstantiated. The examiner further noted that the letter also stated that the IG intended to pursue no additional action regarding the allegations. The examiner opined that in light of the above-noted considerations, the examiner cannot assert that the Veteran as likely as not suffers from PTSD, in accordance with DSM-5, that is caused by or a result of military service. The examiner also concluded that he cannot assert anxious depression for which the Veteran received psychiatric treatment during the past 1-2 years is caused by or a result of his military service that ended during 1987. The Veteran has submitted lay evidence in the form of buddy statements. The buddy lay statements of the Veteran’s family and friends reflect their observations of the Veteran’s symptoms. The Veteran also provided buddy lay statements to support his in-service stressor. a. PTSD After a review of all evidence of record, the Board finds that the Veteran has not had PTSD during the course of his claim and appeal. In this regard, the VA examiner’s opinion is more probative than the VA social worker’s notes and tends to show a more careful analysis. Additionally, there is not credible evidence to support the existence of the stressor, as related by the Veteran. The Veteran’s military personnel records reflect that the Veteran was active duty during the time of this claimed in-service stressor. However, the Board finds that the service records do not support a finding that the Veteran experienced an in-service stressor in 1987 while in active service, whether in ACDUTRA or INACDUTRA. As none of the service connection elements are met for PTSD, the appeal must be denied. There is no reasonable doubt to be resolved as to this issue. b. Depressive Disorder with anxiety The Board finds that the Veteran has current diagnosed depressive disorder with anxiety. However, the in-service element and the nexus element is not met in this case. The STRs and the August 2018 VA examination are the most probative evidence of record as to these elements. As reflected above, there are no complaints, treatment, or diagnosis of depressive disorder with anxiety during service. Additionally, the August 2018 VA examiner provided a negative nexus opinion and supported it with sufficient rationale. Furthermore, the depressive disorder was not shown to be diagnosed during military service or for many years thereafter. See Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Thus, the Board finds that service connection for depressive disorder with anxiety is not warranted and the appeal is denied. There is no reasonable doubt to be resolved as to this issue. 2. Entitlement to service connection for left leg muscle injury is denied. The Veteran contends that he is entitled to service connection for his left leg muscle injury. The Veteran’s National Guard treatment records document that in March 1986, the Veteran reported that in August 1985, he injured his left leg when he extended his leg in a rear direction and pulled a muscle. However, the Veteran’s National Guard periodic examination report dated June 1986 reflects that clinical evaluation of the Veteran’s lower extremity was normal. The August 2013 and January 2014 VA treatment records reflect that the Veteran reported pain in his left leg. The Veteran testified that he injured his left leg in March 1986 during training camp when he was running and fell. The Veteran further testified that when he stood up, he kicked his leg back as he ran. He testified that he went to sick call. The Veteran also testified that a doctor diagnosed him with a muscle group injury of the left leg. The Veteran testified that he has not received treatment for his left leg since his injury. However, he further testified that he receives treatment for his left leg from his private doctors. With respect to a current disability, the competent medical evidence of record is highly probative of a finding that the Veteran does not have a leg muscle injury disability. Specifically, as discussed above, the National Guard periodic examination report reflects that an examination of the Veteran’s lower extremity showed that the Veteran’s lower extremity was normal. Highly probative is that he has reported his symptoms to medical professionals, but no medical professional has attributed the symptoms to a leg muscle injury disability. With regard to lay statements made by the Veteran in connection with his claim, in relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board notes that the Veteran, while competent to report his symptoms both current and past, as a lay person he is not competent to associate any of his claimed symptoms to a leg muscle injury disability. The question of whether he has a leg muscle injury disability is a complex medical question the answer to which requires medical expertise. To the extent that he reports current symptoms, his reports of symptoms due not rise to the level of impairment. The Board has considered whether a VA examination was required in connection with the Veteran’s claim of service connection for a leg muscle injury. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board finds the duty to obtain a medical examination for this claim was not triggered in this case. The evidence does not establish that he has the claimed disability. The medical evidence in this case is sufficient to adjudicate that claim, that evidence is that despite reporting his symptoms to medical professionals, those professionals have not found him to have a leg muscle injury disability. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Because the weight of the evidence is against a finding that the Veteran has a current leg muscle disability, service connection must be denied. There is no reasonable doubt to be resolved in this matter. 3. Entitlement to service connection for breathing problems, bronchitis has been withdrawn. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. During the September 2019 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of entitlement to service connection for breathing problems, bronchitis. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to this appeal. In addition, the VLJ discussed the consequences of withdrawing an appeal, and the Veteran expressed that he fully understood those consequences. See Hearing Transcript at 2. Hence, regarding this issue, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review appeals of this issue and it is dismissed. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.