Citation Nr: 21067400 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-21 767 DATE: November 4, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The Veteran has been diagnosed with PTSD and other acquired psychiatric disabilities; however, the evidence of record fails to verify or corroborate either of the Veteran's claimed in-service stressors. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 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 from July 1967 to May 1971. This matter comes before Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter most recently in March 2019 for updated VA treatment records and a VA examination to determine the nature and etiology of the Veteran's acquired psychiatric disability. The Board finds that the outstanding VA treatment records were associated with the claims file and an adequate VA examination was obtained; therefore, further remand is unnecessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). After the Supplemental Statement of the Case (SSOC) was sent to the Veteran in April 2020, additional evidence was associated with the claims file. The Board cannot consider this evidence without a waiver by the Veteran or consideration of the evidence by the RO unless the evidence is redundant or not pertinent to the claim being decided. 38 C.F.R. § 20.1305(c). Here, the additional evidence includes VA treatment records from July 2013 through October 2020, a June 2020 VA Parkinson's disease examination and opinion, log books and a VA memorandum documenting the Veteran's nautical service in offshore eligible waters of Vietnam, and evidence submitted by the Veteran. The portion of the newly associated VA treatment records ranging from July 2013 through April 20, 2020 were considered by the RO in the April 2020 SSOC; therefore, they are redundant. The remaining additional evidence relates to the Veteran's claims for Parkinson's disease and ischemic heart disease, and while some records reference the Veteran's acquired psychiatric disability, the evidence does not discuss the Veteran's claimed in-service stressors or any other event relating to his acquired psychiatric disability during active service. As to the evidence submitted by the Veteran, waiver is presumed. Because all additional evidence associated with the claims file after the April 2020 SSOC is either submitted by the Veteran, redundant, or not pertinent to the claim before the Board, the Board finds that waiver of initial consideration by the RO is not required. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a claimant's] interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). Separately, the Board notes that the Veteran submitted a March 2021 request that the claim be advanced on the docket based on financial hardship. Appeals must be considered in docket number order, but may be advanced if sufficient cause is shown. 38 U.S.C. § 7107(b); 38 C.F.R. §§ 20.800(c), 20.902(c). Sufficient cause includes advanced age (defined as 75 years or more), serious illness, severe financial hardship, or administrative error resulting in a significant delay. The Veteran submitted two letters from his landlord from January 2020 and July 2020 in support of his request. The January 2020 letter provided that the Veteran's leased residence would be sold and the Veteran would have to vacate the property if he could not secure financing to purchase it by April 1, 2020. The landlord noted that the Veteran had been unable to secure financing due to the forced short sale of his home in 2011. The July 2020 letter reported that the landlord postponed the sale of the Veteran's leased residence until July 2020, and the Veteran would have to negotiate a new lease with the new owners or vacate the premises. While this evidence indicates that the Veteran is or was facing transition related to his living situation and difficulty securing financing to purchase his then-current residence, this evidence does not suggest that the Veteran was, in July 2020, or currently is, unable to secure alternative housing. General financial difficulties alone are insufficient to advance a case on the docket. There is no evidence that demonstrates severe financial hardship such as a pending bankruptcy, home foreclosure, or homelessness. Thus, the evidence does not demonstrate that the Veteran is experiencing severe financial hardship under 38 C.F.R. 20.800(c), and the motion is denied. Finally, in the 2017 substantive appeal, the Veteran declined a Board hearing. However, in a May 2020 statement, the Veteran's spouse indicated they were under the impression they were awaiting scheduling of a hearing before a VA judge. To reconcile this inconsistency, the Board sent a letter to the Veteran in September 2021, with a copy to his representative, asking him if he wanted a hearing. He did not respond, and the letter informed him if he did not respond, the Board would use his previous selection to determine if a hearing was needed. Here, his previous selection was the VA Form 9 declining a hearing. The Veteran contends that he has PTSD caused by multiple stressors during his active service, including having a fellow crewmember be swept overboard while assigned to the U.S.S. Braine and retrieving pilot and co-pilot remains following instances of planes being "sucked into the ocean" while attempting to land aboard the U.S.S. O'Brien. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). With respect to PTSD, service connection requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that a 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, his lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304 (f)(1); see also, 38 U.S.C. § 1154(b). Otherwise, the law requires verification of a claimed stressor. The Veteran has not contended, nor does the evidence indicate, that either of his claimed stressors are related to combat with the enemy. Where a determination is made that a claimant did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, his lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the appellant's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). For any claim of service connection, as discussed above, the Veteran must show a current disability. Here, the evidence demonstrates that the Veteran has been diagnosed with multiple psychiatric disabilities during the appeal period, including unspecified anxiety and personality disorders, unspecified neurocognitive disorder, "other specified trauma- and stressor-related disorder," and PTSD. The Veteran was afforded VA examinations in July 2013 and December 2019 to assess his PTSD claim. Both examiners determined that the Veteran does not have diagnosis of PTSD that conforms to the DSM, with the July 2013 examiner relying on the DSM-IV and the December 2019 examiner relying on the DSM-V. Instead, the July 2013 examiner diagnosed the Veteran with unspecified anxiety and personality disorders, which the December 2019 examiner characterized as unspecified neurocognitive disorder and "other specified trauma- and stressor-related disorder." However, the Veteran's VA psychiatrist diagnosed him with PTSD per DSM-V standards in February 2015, which has been consistently noted in VA treatment records through October 2020. See February 2015 Geriatric Psychiatry Consult; see, generally, VA Treatment Records. The Board has weighed the February 2015 diagnosis against the July 2013 and December 2019 VA examiners' conclusions that he does not have a diagnosis of PTSD pursuant to DSM-V standards, and finds that the evidence is in relative equipoise. While some mental health professionals concluded a different diagnosis was warranted, that does not necessarily mean he does not also have PTSD, as various psychiatric disorders can co-exist. Resolving reasonable doubt in favor of the Veteran, the Board finds that he has a current PTSD disability with additional diagnoses of unspecified anxiety and personality disorders, unspecified neurocognitive disorder, and "other specified trauma- and stressor-related disorder." Regarding the Veteran's unspecified personality disorder diagnosis, the Board notes that personality disorders are specifically excluded from the definition of disease or injury within the meaning of VA statutes and regulations. See 38 C.F.R. §§ 3.303 (c); 4.9, 4.127; Winn v. Brown, 8 Vet. App. 510 (1996). While a claimant cannot be compensated for a personality disorder, which is considered to be a congenital or developmental abnormality, disability resulting from a mental disorder that is superimposed upon a personality disorder may be service-connected. See 38 C.F.R. § 4.127; VAOPGCPREC 82-1990 (July 18, 1990). Therefore, while 38 C.F.R. §§ 3.303 (c), 4.9, and 4.127 prohibit any grant of service connection for a personality disorder, even if aggravated in service, a diagnosed psychiatric disorder may provide a basis for service connection if the evidence demonstrates the psychiatric disorder was superimposed upon a veteran's diagnosed personality disorder. Thus, in this case, the Veteran's unspecified personality disorder cannot be service-connected, but a disability resulting from a mental disorder that is superimposed upon his personality disorder may be service-connected. Based on the finding that the Veteran has a current PTSD disability with additional diagnoses of unspecified anxiety and personality disorders, unspecified neurocognitive disorder, and "other specified trauma- and stressor-related disorder," the Board next looks to whether there is a link, established by medical evidence, between the Veteran's current symptoms and his claimed in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Board finds that there is no credible supporting evidence that the claimed in-service stressors occurred. The Veteran has specifically reported two stressors related to his Vietnam service. The Board notes that he also referenced coming under fire in a river boat on his way to be shipped back to the U.S. and traumatic experiences with civilians upon his return from Vietnam, but did not identify these incidents as specific stressors when he responded to the RO's request for specific details of stressful incidents in service. See March 2014 Statement in Support of Claim; July 2013 VA Examination; May 2016 Correspondence. First, the Veteran reported that while assigned to the USS O'Brien, he had to recover aircraft wreckage and human remains when planes missed the hook line, were sucked into the ocean, and were "ran over" by the aircraft carrier. See March 2014 Correspondence. He specifically reported that it was not unusual to fish out helmets that still contained brain matter. He has not provided any names or dates for this stressor event, though, noting that "you have no idea who's remains you're fishing out--there's not enough to tell." Id. The July 2013 VA examiner addressed this stressor during the examination, and determined that while it is adequate to support a diagnosis of PTSD, it is not related to the Veteran's fear of hostile military or terrorist activity as there was no enemy action involved. The July 2020 VA examiner did not address this stressor. The RO attempted to corroborate this stressor in 2016, but due to the lack of dates for this event and the Veteran's inability to provide names of those involved, it was unable submit a stressor verification request to the Joint Services Records Research Center (JSRRC). See March 2017 Formal Finding. Because the Veteran has not provided any specific details, including dates or names of those involved in this claimed stressor event, and the RO has been unable to proceed in stressor verification due to lack of information, the Board finds that this stressor has not been verified or corroborated by service records or other credible supporting evidence. Second, the Veteran reported that in October 1968, while assigned to the U.S.S. Braine, he lost a fellow crewmember, 1st Class Machinist Mate (MM1) S., who went overboard while working on deck repairs during extreme rough seas. See March 2014 Correspondence. In May 2016, he indicated that he witnessed this individual be swept overboard and heard his screams, and in May 2017 he suggested that he witnessed this individual drown. See May 2016 Statement in Support of Claim for PTSD; April 2017 Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault. In April 2020, his wife stated that the Veteran heard his friend's cry for help during this incident, but was unable to get to him because he had been knocked back inside the ship. See April 2020 Statement in Support of Claim. In contrast to these statements, the Veteran separately reported at the July 2013 VA examination that he was not with MM1 S. during this incident and did not witness the event. The July 2013 VA examiner also addressed this stressor during the examination, and determined that it is not adequate to support a diagnosis of PTSD, and it is not related to the Veteran's fear of hostile military or terrorist activity as the Veteran did not directly experience the event. The July 2020 VA examiner also addressed this stressor and similarly determined that while it is adequate to support a diagnosis of PTSD, it is not related to the Veteran's fear of hostile military or terrorist activity as it involved learning of the tragic death of his friend/shipmate. The RO attempted to corroborate this stressor in multiple instances in 2017. In February 2017, the RO obtained the command history and deck logs for the U.S.S. Braine, and found that an individual with a different last name was killed in October 1968 while the ship was in transit as he courageously attempted weather deck repairs in the face of extremely rough seas. See February 2017 Email Correspondence. Contrary to the Veteran's reports of his friend being thrown overboard, this history revealed that the individual involved died from internal injuries on the ship following an injury he received from being thrown by a heavy roll. The RO issued a formal finding in March 2017, stating that the available evidence is insufficient to establish a stressor during the Veteran's naval service. The Board acknowledges the Veteran's wife's statement that the confusion regarding the Veteran's claimed stressors is possibly due to her transcribing the Veteran's review of events and taking something he dictated out of context, or due to a lapse in memory or confusion on the Veteran's part. See April 2020 Statement in Support of Claim. Per this statement, she "re-verified" the Veteran's alleged stressor and reported that his "friend was swept to the fantail of the ship while doing the repairs aboard ship during a storm and turbulent seas" and he had started to go out on deck to assist his friend, but the hatch door slammed on him and prevented him from getting to his friend on deck. She further noted that when the Veteran told her that his friend was washed to the fan tail and there was a burial at sea, she misunderstood and transcribed that his friend was washed overboard. In assessing evidence, the Board is tasked with determining its competency and credibility. In this assessment, the Board may consider factors such as internal inconsistency, facial plausibility, consistency with other evidence submitted, bad character, bias, self-interest, malingering, and desire for monetary gain. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics and its relationship to other items of evidence"). Here, the Board finds that the Veteran's reports of this claimed in-service stressor are not credible due to inconsistencies in his own statements and contradictions by other evidence, and that the weight of the competent and credible evidence does not support that the claimed in-service stressor occurred. The Veteran's original reports of this stressor, in which he contended that his friend, MM1 S. was swept overboard during rough seas, are consistent through several lay statements signed by the Veteran submitted between March 2014 and April 2017. See, generally, Veteran's Submissions. The Veteran reported the same general series of events at VA examinations and to his VA psychiatrist, stating that his friend was killed in a storm at the July 2013 VA examination, and that his friend got washed away and had his skull smashed in at the February 2015 Geriatric Psychiatry Consult. But, inconsistencies in his reports of this stressor began to arise later in the appeal period, with the Veteran reporting in various submissions that he witnessed MM1 S. being swept overboard and then reporting to a VA examiner that he did not witness the event, and his wife later reporting that MM1 S. was not swept overboard at all. These inconsistencies, combined with the fact that the documented series of events from the U.S.S. Braine's deck logs is intrinsically different from the Veteran's contentions, render this claimed stressor inherently incredible. As for the possibility of memory problems affecting his recall of events, the Veteran specifically stated that his wife has had to help with his short term memory, "but I have no problems with long term, in fact I relive most of my long term memories daily and they keep me awake all night." See March 2015 Notice of Disagreement. The wife's recharacterization of the Veteran's stressor came immediately after the 2020 SSOC informed him of the inconsistencies between his statements and facts the RO was able to confirm. Despite the RO's March 2017 formal finding that it could not verify either of the Veteran's claimed stressors, the December 2019 examiner opined that it is at least as likely as not that the Veteran's "other specified trauma- and stressor-related disorder" is related to active military service. Because the examiner did not determine that the Veteran had PTSD, this opinion did not extend to the PTSD diagnosis. Additionally, because the Board finds that there is no qualifying in-service event as required by the second element of service connection, as addressed in more detail below, a discussion of this nexus opinion is unnecessary. Separately, the Veteran's service treatment records do not reflect any complaints of or treatment for any psychiatric symptoms. Rather, his March 1971 separation examination indicates that his psychiatric condition was normal at separation. Further, his service treatment records do not document or reference either of the Veteran's claimed in-service stressors. After review of the lay, medical, and military record-based evidence, the Board finds that there is no credible evidence that the Veteran's claimed in-service stressors occurred, as required for service-connection for PTSD by 38 C.F.R. § 3.304(f). The Veteran's first claimed stressor is not verifiable as he did not provide dates of the incident or names of those involved, and his second claimed stressor involving MM1 S is intrinsically different than the documented incident involving a different MM1 S. Moreover, the provisions which relax the requirements for PTSD do not apply in this case, as the Veteran was not diagnosed with PTSD during service, the claimed stressors do not relate to combat with the enemy or fear of hostile military or terrorist activity, the Veteran was not a prisoner-of-war, and the Veteran's PTSD claim is not based on an in-service personal assault. See 38 C.F.R. § 3.304. The Board further finds that service connection is not warranted for the Veteran's other acquired psychiatric disabilities. While the first element for service connection has been met, as addressed above, the weight of the evidence is against a finding that either of the Veteran's claimed stressors occurred. Further, the evidence does not indicate that any psychiatric disorder or symptoms of such manifested during the Veteran's active service. As the weight of the evidence is against a finding that the claimed in-service stressors occurred, and there was no in-service manifestation of these disabilities, the second element of service connection for an acquired psychiatric disability has not been met. Accordingly, service connection is not warranted for an acquired psychiatric disability, to include PTSD, and the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.