Citation Nr: A20007334 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190730-16298 DATE: April 30, 2020 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s psychiatric disorder is a result of his willful misconduct. CONCLUSION OF LAW The criteria for service connection for PTSD have not been satisfied. 38 U.S.C. §§ 105(a), 1110, 1131, 5107; 38 C.F.R. §§ 3.1(n), 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from November 1973 to November 1976, as well as subsequent periods of service in the Army National Guard. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a July 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Later that month, the Veteran timely appealed the portion of the rating decision pertaining to the issue above and requested direct review of the evidence considered by the RO. 38 C.F.R. § 20.202. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and was not the result of willful misconduct or, for claims filed after October 31, 1990, the result of abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301(a). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor occurred; and, (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). Lay testimony alone can establish the occurrence of the claimed in-service stressor in certain circumstances, which include: when PTSD is diagnosed during service and the claimed stressor is related to that service, when the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, when the stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and certain other conditions are met, and when the veteran was a prisoner-of-war and the claimed stressor is related to that prisoner-of-war experience. Id. In other cases, the claimed stressor must be corroborated by credible supporting evidence. The Veteran has been seeking service connection for PTSD since an initial claim in 2015, attributing his disability to an in-service physical altercation with a superior officer. As an initial matter, the Veteran has a current psychiatric disability, with the Veteran diagnosed with PTSD upon VA examination in July 2019. As such, the Board finds that the evidence establishes a disability for service connection purposes. With respect to the second element of service connection, an in-service incurrence, the Board notes that the Veteran’s service treatment records (STRs) are not of record. In May 2016, the RO notified the Veteran that, after several attempts, his STRs were unavailable for review, and that any further attempts to obtain such records would be futile. When service records are missing, there is a heightened duty on the Board to explain its findings and conclusions. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, case law does not establish a heightened “benefit of the doubt,” only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing a claim, and to explain its decision when a veteran’s medical records have been lost. Ussery v. Brown, 8 Vet. App. 64, 68 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to a claimant. Russo v. Brown, 9 Vet. App. 46, 50-51 (1996). Regardless, and as noted above, the Veteran has asserted that he suffers psychiatric symptoms as a result of an in-service physical altercation with a superior officer in November 1975, which resulted in him being placed into military stockade and Court Martial proceedings. Although his STRs are unavailable, available military personnel records do memorialize and corroborate the events surrounding the 1975 incident and subsequent Court Martial. Thus, the Board finds that an in-service stressor for the purposes of the second element of service connection are also met. See 38 C.F.R. § 3.304(f)(5). As to the third element of service connection, a nexus between the in-service incurrence and current disability, a VA examination was afforded to the Veteran in July 2019. After a review of the record and conducting a mental health evaluation, the VA examiner diagnosed the Veteran with PTSD and provided an opinion that it was at least as likely as not that his PTSD was due to his in-service stressor. While acknowledging that the examiner provided a positive nexus opinion that the Veteran’s psychiatric symptoms were related to the November 1975 altercation with a superior officer and his subsequent discipline, the Board has determined that these symptoms were the result of the Veteran’s own willful misconduct, which precludes an award of service connection. See 38 U.S.C. § 105(a); 38 C.F.R. § 3.1(n). In this regard, the Board notes the available Court Martial proceedings pertaining to his in-service stressor reflect that, despite assertions that he was not at fault, the Veteran was found guilty for violations of the Uniform Code of Military Justice for physically assaulting his superior officer. In view of this information, the preponderance of the evidence shows that any psychiatric symptoms related to the Veteran’s service were the result of his willful misconduct, i.e., the willful action of physically assaulting his superior officer. This was an act involving deliberate and intentional wrongdoing, with knowledge of, or wanton and reckless disregard of, the probable consequences. In sum, the Board finds that, to the extent the Veteran’s psychiatric symptoms were related to his active military service, a preponderance of the evidence shows they were the result of his own willful misconduct. Thus, service connection is precluded. See 38 U.S.C. §§ 105(a), 1110, 1131; 38 C.F.R. §§ 3.1(n), 3.301(a). In reaching its decision, the Board has duly considered the benefit-of-the-doubt doctrine. However, as the Board has found a preponderance of the evidence weighs against the Veteran’s claim, the doctrine is inapplicable, and the claim must be denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.