Citation Nr: 21062021 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-46 616 DATE: October 6, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's in-service stressors are uncorroborated, and therefore the preponderance of the evidence weighs against a finding that the Veteran has PTSD related to his military service. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1980 to July 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in April 2020 for additional development. As the actions specified in the most recent remand have been substantially completed, the case has been properly returned to the Board for appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. In compliance with the April 2020 Board remand, in April 2020 the RO asked the Veteran to provide additional details regarding his in-service stressors. However, the Veteran did not respond to that request for information. The Veteran has a duty to assist and cooperate with VA in developing evidence, the duty to assist is not a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence). See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Here, the Board finds that as the Veteran has rejected VA's attempts to generate the necessary information to assist with substantiating his claim, there is no duty to seek further development. Neither the Veteran nor his representative have 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 Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD requires specific findings. These are: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f). A diagnosis of PTSD must comply with the criteria set forth in the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Id.; 38 C.F.R. § 4.125(a). 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. 38 C.F.R. § 3.304(f)(3). 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. Id. If a Veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to "fear of hostile military or terrorist activity," then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau, supra; Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283, 289 (1994). The question of whether a Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on recon., 1 Vet. App. 406, 407 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. Effective August 4, 2014, VA amended the portion of its Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran's DD 214 indicated that his military occupational specialty (MOS) was a short-range missile crewman, and it noted that he received a hand grenade expert badge. The Veteran initially described three in-service stressors that form the basis for his claim for service connection. The Veteran indicated that his first stressor occurred during his military service in Germany in 1982 when he took a trip to Beirut. He alleged that he was performing security duty in Beirut when there was a bombing, and he witnessed many bodies and body parts strewn about. The Veteran claimed that his second stressor occurred in April 1983 during a training exercise in Fort Bliss, Texas when he witnessed someone pull the pin of a grenade and lose three fingers in a very gruesome scene. The Veteran additionally alleged that his third stressor occurred in June 1983 in Fort Bliss, Texas when he witnessed a tank run over someone. The Veteran's Service Treatment Records (STRs) include his June 1980 enlistment examination, which contains no complaints, treatment, or diagnosis for any psychiatric problems. February 1982 STRs indicated that the Veteran had a drinking problem and February and March 1982 STRs indicated that the Veteran was seen at a mental health clinic but did not specify a diagnosis. An April 11, 2011 VA memorandum indicated a formal finding of the unavailability of the Veteran's military separation examination. The Veteran's military personnel records indicated that he served overseas in Germany from December 1980 to June 1982. May 2015 VA treatment records indicated that a VA psychiatrist diagnosed the Veteran with PTSD. A January 2016 VA examination by a VA psychologist reviewed the Veteran's medical records and conducted an interview. The Veteran relayed information about his three in-service stressors. The January 2016 VA psychologist noted that the Veteran was treated for alcohol problems during his service and continued to be treated for alcohol use post-service along with PTSD, insomnia, and depression. He listed the Veteran's mental health diagnoses as PTSD and alcohol use disorder, and he indicated that all three of the Veteran's stressors were adequate to support the diagnosis of PTSD. The January 2016 VA psychologist further indicated that only the first stressor was related to the Veteran's fear of hostile military or terrorist activity. He stated that the VA verified that the Veteran served in an area of terrorist activity, which had been accurately specified as Beirut by the Veteran, and he opined that the Veteran's PTSD with insomnia was at least as likely as not caused by stressful events during his service. The January 2016 VA psychologist further opined that the Veteran's alcohol use disorder did not cause the Veteran's PTSD and was not secondary to the Veteran's PTSD. In a January 2016 memorandum, the VA made a formal finding that there was not enough information available to corroborate the stressors associated with the Veteran's claim for service connection for PTSD. It was noted that the information required to corroborate the stressful events described by the Veteran was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of the National Archives and Records Administration (NARA) records because the Veteran did not provide an adequate response to requests for stressor details. Further, it was determined that the Veteran's Personnel Records did not corroborate stressors associated with his claim for service connection for PTSD. In March 2016 the Veteran provided more details regarding his second and third stressors, related that both occurred in April 1983 during training exercises at Fort Bliss. The Veteran related that during the third stressor he witnessed a fellow servicemember fall and the tank behind him run over the servicemember's left leg. The Veteran also provided the details of the unit he was in during these stressors. Undated letters from DPRIS indicated that they coordinated their research with the NARA and were unable to locate any records pertaining to the alleged second or third stressor. A March 2017 VA examination by a VA psychologist indicated that he reviewed the Veteran's medical records and conducted an interview with the Veteran. The Veteran reported the second stressor and alleged a fourth in-service stressor. He stated that while he was stationed in Germany a fellow servicemember received a "dear john" letter from his wife and the Veteran witnessed him jump out of the fourth story of a building, which caused his legs to break and bend backwards. The March 2017 VA psychologist diagnosed PTSD and opined that it was more likely than not that his PTSD was related to his second and fourth stressors. He explained that the Veteran reported a history of maladaptive behaviors such as impulse control, alcohol abuse, and legal problems following his exposure to the second and fourth stressors, and he noted that his family distanced themselves from him because they stated that he changed. In April 2017 the Veteran provided the first and last name of the servicemember who was injured in the second stressor and the last name of the servicemember who was injured in the third stressor, and he indicated that both stressors occurred in June 1983. Undated letters from DPRIS indicated that they coordinated their research with the NARA and were unable to locate any records pertaining to the second or third stressors. In April 2020 the VA sent the Veteran an additional request for details regarding his alleged stressors. It stated that information received thus far had not met the minimum level of detail needed for the VA to seek assistance from the U.S. Army and JSRRC. In a May 2020 memorandum, the VA made a formal finding that there was not enough information available to corroborate the alleged second, third, and fourth stressors associated with the Veteran's claim for service connection for PTSD. It was noted that the information required to corroborate the stressful events described by the Veteran was insufficient to send to the U.S. Army and JSRRC. The memorandum stated that the Veteran was provided with the opportunity to provide missing information. The Board has carefully reviewed the evidence of record and finds that the criteria for service connection for PTSD have not been met. While the first stressor of witnessing a bombing in Beirut was related to the Veteran's fear of hostile military or terrorist activity and the January 2016 VA psychologist diagnosed the Veteran with PTSD and indicated that the first stressor was adequate to support a diagnosis of PTSD, the report relied on inaccurate factual information about did not indicate a specific nexus between the Veteran's PTSD and his first stressor. The January 2016 VA psychologist stated that VA verified that the Veteran served in an area of terrorist activity, specified as Beirut by the Veteran, however the VA provided the January 2016 VA Psychologist with a VA 21-2507a form which stated that the Veteran was stationed in Germany in the 1980's where there were terrorist bombings. Additionally, the 2016 VA psychologist did not specifically connect the Veteran's PTSD symptoms to his first stressor; rather, he stated that the Veteran's PTSD was due to stressful events during service. 38 C.F.R. § 3.304(f)(3). Furthermore, there is no evidence in the record that the Veteran went to Beirut during his service or witnessed a bombing. Additionally, while the Veteran's military personnel records indicate that he served overseas in Germany from 1980 to June 1982, and the Veteran claimed that he witnessed the bombing in 1982, the Beirut U.S. embassy bombing and the Beirut barracks bombing both occurred in 1983. As such, the claimed stressor is not consistent with the places, types, and circumstances of the Veteran's service. 38 C.F.R. § 3.304(f)(3). Therefore, the Veteran's lay testimony alone cannot establish the occurrence of this claimed in-service stressor, and it must be corroborated by credible supporting evidence. 38 C.F.R. § 3.304(f)(3), 38 C.F.R. § 3.304(f). As the second, third, and fourth stressors all do not relate to combat or fear of hostile military or terrorist activity, they also must be corroborated by credible supporting evidence. C.F.R. § 3.304(f). While the Veteran's STRs mention visits to a mental health clinic and alcohol issues, they are silent as to any complaints or treatment for PTSD. Regarding stressor number one, as stated previously the Veteran's military personnel records indicate that he served overseas in Germany from December 1980 to June 1982, the Veteran claimed that he witnessed the bombing in 1982, the Beirut U.S. embassy bombing and the Beirut barracks bombing both occurred in 1983. Thus, the Veteran could not have been witness to a bombing in Beirut when he was located in Germany. The VA January 2016 memorandum made a formal finding that there was not enough information available to corroborate the first three stressors associated with the Veteran's claim for service connection for PTSD, and the May 2020 VA memorandum made a formal finding that there was not enough information available to corroborate the second, third, and fourth stressors associated with the Veteran's claim for service connection for PTSD. DPRIS conducted multiple searches to corroborate the stressors and found no supporting evidence. The Veteran was asked multiple times by the VA to provide more details regarding his stressors, most recently in April 2020, and there was no response. Therefore, the Board finds that the evidence of record lacks credible supporting evidence for all of the Veteran's stressors. While the March 2017 VA psychologist opined that it was more likely than not that the Veteran's PTSD was related his second and fourth reported in-service stressors, the question of whether a Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on recon., 1 Vet. App. 406, 407 (1991). Therefore, the March 2017 VA examination is of little probative value regarding the factual question of whether the Veteran's alleged in-service stressors occurred. As there is no credible evidence in the record that supports corroboration of the Veteran's in-service stressors, the Veteran's claim for service connection for PTSD is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.