Citation Nr: 21063761 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-30 798 DATE: October 15, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is denied. REMANDED Entitlement to a compensable rating for bilateral hearing loss prior to January 28, 2021, and in excess of 20 percent thereafter is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of PTSD, which is his only current diagnosis of an acquired psychiatric disability. 2. The competent and credible evidence does not tend to support that his claimed in-service stressor(s) occurred or show other psychiatric disability during service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability to include PTSD and depression are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1964 to April 1966. These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2017 (psychiatric) and November 2017 (hearing loss) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified, sitting in San Antonio, Texas, before the undersigned via a videoconference hearing. A transcript of the hearing has been associated with the virtual file and reviewed. This case was last before the Board in December 2019, at which time it was remanded for further development. As the requested development has been completed regarding the claim of entitlement to service connection for an acquired psychiatric disorder, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 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 benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Service connection for an acquired psychiatric disorder, to include PTSD and depression. The Veteran contends that he has developed PTSD or other psychiatric disabilities due to events during active service. Specifically, the Veteran asserts that his psychiatric condition is related to a stressful event wherein he witnessed and assisted in the recovery of several fatalities while performing transportation convoys in Germany. 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 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 posttraumatic stress disorder 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. § 3.303(f)(3). In this case, the Veteran does not claim that his stressor is related to fear of hostile military or terrorist activity. The VA treatment records reveal that the Veteran is diagnosed with PTSD, chronic, related to military service, under the DSM-5 criteria. Additionally, the Veteran's presenting problems include depression, isolation, sleeplessness, and general anhedonia. 04/24/2017, CAPRI. This first requirement of competent medical evidence establishing a diagnosis of the psychiatric disorder has been met. However, the Board finds that entitlement to service connection for an acquired psychiatric disability, to include PTSD or depression, is not warranted. There is no credible supporting evidence that the claimed in-service stressor actually occurred, and no evidence of a link between that stressor and any current diagnosis of a psychiatric disability. The Veteran's service treatment records are negative for complaints, treatment or diagnoses relating to a psychiatric disability. The February 1966 clinical discharge examination states the psychiatric examination was normal. The Veteran denied a history of frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, and nervous trouble of any sort on the February 1966 Report of Medical History he completed at discharge. 01/28/2016, STR Medical. The military personnel records reveal that the Veteran's military occupational specialty (MOS) was heavy vehicle driver, and that he was stationed in Germany between March 1965 and March 1966. 12/17/2015, Certificate of Release or Discharge; 02/17/2016, Military Personnel Records. The personnel records do not include any mention of recovery of several fatalities while performing transportation convoys in Germany. In June 2017, the RO determined that the information submitted by the Veteran regarding the stressful events is insufficient to submit to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for a meaningful research of Marine Corps or National Archives and Records Administration (NARA). Specifically, the RO requested the names of the soldiers killed and the dates of the fatalities. The Veteran responded that he does not remember the exact dates or names, and that he only able to recall that seven fatalities occurred over various dates between April 1965 and March 1966. 06/28/2017, VA Memo; 06/05/2017, VA 21-4138; 04/17/2017, VA 21-0781a. During an October 2019 Board hearing, the Veteran testified that, while participating in various transportation convoys throughout Germany between in the winter of 1965 and 1966, heavy snow and slippery road conditions caused several drivers to lose control of their trucks and skid off the mountain. The Veteran was assigned to retrieve the bodies of the drivers. According to the Veteran, as the convoys consisted of several companies from various battalions, he did not know the names of the other drivers, and also cannot recall the specific dates of the fatalities. The Veteran did not speak about the experience after separation until he filed the claim for service connection, after he was unable maintain employment due to an injury. The Veteran experiences nightmares of the experience and self-medicated with alcohol. Eventually, the Veteran started receiving medical treatment for the psychiatric conditions. The Veteran further indicated that he attempted but was unable to obtain accident reports associated with the stressor events and requested assistance in obtaining those records. 10/24/2019, Hearing Transcript. In December 2019, the Board remanded and directed the Agency of Original Jurisdiction (AOJ) to make appropriate efforts to obtain accident reports associated with the stressor events. And, if the stressor events were corroborated, the AOJ was directed to schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed psychiatric disorders, to include PTSD and depression, and to provide an opinion as to whether any diagnosed psychiatric disorders had its onset in or is otherwise related to service. 12/06/2019, BVA Decision. Subsequently, the RO contacted the Veteran in April 2020 and December 2020 requesting additional information to corroborate the Veteran's stressor incidents. 04/27/2020, Subsequent Development Letter; 12/09/2020, Subsequent Development Letter. In response, the Veteran stated that convoys to retrieve fatalities were comprised of soldiers from various units in Germany. The Veteran further indicated that whenever an accident occurred, soldiers were selected at random to retrieve the bodies. The Veteran reported that it was impossible to know the names of any soldiers due to these procedures. 05/31/2020, VA 21-4138 Statement in Support of Claim. In response to the Veteran's claimed stressor, the RO reviewed the National Archives and Records Administration (NARA) casualty database and the Official Military Activity Reports casualty database. The RO also requested records from NARA, the custodian of Army Unit Records. However, NARA was unable to provide the 1965 and 1966 Unit Records for the 126th Transportation Company, 29th Transportation Battalion. Additionally, no evidence was located to support documentation of the claimed stressor event. The Board finds such evidence to be probative and it tends to weigh against a finding of an in-service event. 07/27/2021, Other. As there is no credible supporting evidence that the Veteran's claimed in-service stressor of assisting in the recovery of several fatalities occurred. Additionally, the service treatment records do not tend to show evidence of signs/symptoms of a psychiatric disability during service. Therefore, the Board finds that the requirement of evidence of in-service incurrence of PTSD or any other psychiatric disability has not been met. Furthermore, the evidence also shows that the February 2017 diagnosis of PTSD, which is the only psychiatric diagnosis of record, was based on alleged traumatic events in service related to recovery of fatalities in Germany. However, the alleged stressor event has not been corroborated by the relevant, competent evidence of record. Therefore, the preponderance of the evidence is against a nexus between the current diagnosis and active service. 38 U.S.C. § 5107(b). The requirements for service connection for an acquired psychiatric disability, to include PTSD or depression, have not been met, and the Veteran's appeal is denied. Likewise, there is insufficient evidence of an acquired psychiatric disability other than PTSD. The Board also notes that the Veteran was noted to have symptoms related to his PTSD that include depression. 04/24/2017, CAPRI. Furthermore, a clinician noted that the Veteran appeared to be struggling with non-PTSD related depression associated with his relationship, loss of employment, struggling with his health, and financial stress. 08/22/2021, CAPRI, page 37. However, the record is does not reflect competent medical evidence showing a clinical diagnosis, per the DSM-5, of any acquired psychiatric disability other than PTSD. The Board notes the Veteran has not been afforded a VA examination of his claimed PTSD or any other psychiatric disability. However, the Board finds that again, such an examination is not required. There is no credible supporting evidence the Veteran's claimed in-service stressor occurred and no evidence of an acquired psychiatric disability other than PTSD. The Board concludes that the requirements to trigger VA's duty to assist to provide an examination are not met in this case. REASONS FOR REMAND 2. Entitlement to a compensable rating for bilateral hearing loss prior to January 28, 2021, and in excess of 20 percent thereafter is remanded. As noted above, in December 2019 the Board remanded entitlement to a compensable rating for bilateral hearing loss. The Board directed the AOJ to obtain a VA examination to determine the current severity of his service-connected bilateral hearing loss. 12/06/2019, BVA Decision. A January 2021 VA examination was conducted with regard to the severity of the Veteran's bilateral hearing loss. 02/02/2020, C&P Exam. And, a March 2021 rating decision assigned a 20 percent evaluation for ischemic heart disease, effective January 28, 2021. 03/10/2021, Rating Decision. However, the RO did not issue a Supplemental Statement of Case (SSOC) with regards to the Veteran's claim for an increased rating for bilateral hearing loss. The grant of a 20 percent rating effective January 28, 2021, in the March 2021 rating decision did not resolve the Veteran's claim for an increased rating. At the December 2019 Board hearing, the Veteran testified to symptoms that could possibly warrant a rating in excess of 20 percent. Furthermore, the Veteran has asserted that the onset of the worsening of his hearing loss symptoms occurred prior to the January 2021 VA examination. As such, the 20 percent rating assigned on remand is not a grant in full of the benefits sought by the Veteran because he did not specifically state that he would be satisfied with 20 percent. Therefore, a remand is necessary for the issuance of an SSOC. 38 C.F.R. § 19.31. This matter is REMANDED for the following action: Readjudicate the issues on appeal, to include the higher rating for bilateral hearing loss. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han 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.