Citation Nr: 21000918 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-12 367 DATE: January 6, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT PTSD was not manifest during service and is unrelated to credible supporting evidence of a stressor. There is no verified stressor. The Veteran did not engage in combat and the claimed stressor does not relate to fear of hostile military or terrorist activity. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1965 to March 1968. A videoconference hearing was held before the undersigned veterans law judge in July 2017. The transcript is of record. During the hearing, the VLJ clarified the issue, asked if there was outstanding evidence and held the open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103. This matter was previously before the Board in July 2019, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) To establish service connection a Veteran must generally 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). There are particular requirements for establishing PTSD that are separate from those for establishing service connection generally. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); 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. See 38 C.F.R. § 3.304 (f); 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the DSM-IV/V). 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)(1). 38 U.S.C. § 1154 (b) and 38 C.F.R. § 3.304 (d) (pertaining to combat Veterans). A finding that the Veteran engaged in combat with the enemy, however, requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general “combat area” or “combat zone” but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). 38 C.F.R. § 3.304 (f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. 38 C.F.R. § 3.304 (f)(3). The amendment provides that, if a stressor claimed by a veteran is related to the veteran’s fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service and there is no clear and convincing evidence to the contrary. Id. “Fear of hostile military activity” is defined to mean 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, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The list of examples of such an event or circumstance specifically includes attack upon friendly military aircraft, vehicle-imbedded explosive devices, and incoming artillery, rocket, or mortar fire. In determining whether the Veteran has a diagnosis of PTSD, the Board acknowledges that mental health professionals are experts, are presumed to know the DSM requirements applicable to their practice, and to have taken the DSM requirements into account in providing a PTSD diagnosis. As such, a PTSD diagnosis provided by a mental-health professional must be presumed to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor, unless there is evidence to the contrary. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). However, the diagnosis must be supported by a stressor. The regulation establishes the background for establishing a stressor. Service treatment records contain no record of PTSD or any mental health complaints. At separation the Veteran denied depression or excessive worry. His psychiatric examination was normal. A June 2011 treatment note indicates that the Veteran had a positive PTSD screen and was referred for further mental health evaluation. A PTSD diagnosis was rendered in July 2012 based on the Veteran’s reports of witnessing a suicide during service and that his best friend committed suicide in 1995. The Veteran has reported two in-service stressors that he believes caused his PTSD. The first is the witnessing of the suicide of another soldier while stationed in Germany in 1966. The second is witnessing the death of another soldier during a live armor fire training at Fort Knox in 1965. Information regarding the first stressor was submitted to the Joint Service Records Research Center (JSRRC). However, no unit records or other documentation were discovered which could confirm the incident. The Board remanded the issue in July 2019 for the AOJ to attempt to corroborate the second incident. Forms were mailed to the Veteran in November 2019 requesting the Veteran to provide additional information necessary for corroboration. No response was received. Therefore, the stressor cannot be confirmed by credible supporting evidence. As noted above, entitlement to service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), a confirmed stressor event, and medical evidence linking the stressor event to the Veteran’s PTSD. Here, there is no confirmed stressor event in service. With regard to the recent amendment codified at 38 C.F.R. § 3.304 (f)(3), the fact remains that the Veteran did not experience, witness or confront an event or circumstance that involved actual death or injury or the integrity of another within the meaning of the regulation. There was no actual threat to him of injury or death due to hostile military activity and he has provided nothing credible in this regard. See Hall v. Shinseki, 717 F.3d 1369 (2013). Nor were the reported stressors related to combat. Confirmation of a stressor (credible supporting evidence) is necessary to fulfill the requirement of an in-service incurrence. Here, all attempts to confirm the stressors have been unsuccessful. The Veteran’s lay testimony alone is not sufficient.   There are no other mental health diagnoses of record. All of the Veteran’s mental health symptoms have been attributed to PTSD. The weight of the evidence reflects that the Veteran’s claimed PTSD (or any other potential psychiatric disorder) is unrelated to a credible supporting evidence of a stressor. To the extent that there is a diagnosis of PTSD, the evidence does not show that any such diagnosis is related to credible supporting evidence of an in-service stressor or a possible exception. The preponderance of the evidence is against the claim for entitlement to service connection for PTSD and the claim must be denied. Finally, the Board recognizes that the Veteran was not afforded a VA examination with respect to this issue. However, no examination is necessary for the adjudication of the claim. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained, with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). No examination is necessary for the adjudication of this claim as there is no credible evidence of record with respect to the existence of an in-service event, injury, or disease or any evidence of an association between the Veteran’s claimed disorder and his service. To the extent that there was a duty to attempt to verify the claimed stressor, such was accomplished. There is clearly sufficient competent medical evidence of record to adjudicate the Veteran’s claim. See McLendon, supra; 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The Board does not find that there is sufficient evidence to require a VA examination or to obtain a medical opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.