Citation Nr: 21067824 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-06 572 DATE: November 5, 2021 ORDER Service connection for and acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with PTSD. 2. An in-service stressor sufficient to cause PTSD has not been verified CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the Appellant, served on active duty from August 1988 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision from the Regional Office (RO), which denied service connection for PTSD, panic attacks, and an anxiety disorder. The Board has recharacterized the issue on appeal as service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). This matter was previously before the Board in January 2019 and July 2021, where the matter was remanded for additional development, including to obtain outstanding VA treatment records; obtain any outstanding private treatment records, including those from Dr. Rice dated from October 2015 forward; to obtain an addendum VA medical opinion; and to verify the newly claimed stressor of the Veteran witnessing a suicide during service. The record shows that VA treatment records have been associated with the claim file. In November 2019, the RO contacted the Veteran via telephone to request any treatment records from Dr. Rice. The Veteran responded that he submitted the medical records from Dr. Rice, consisting of a one-page letter from Dr. Rice, and had no additional records to submit. The RO also contacted Dr. Rice's office via telephone three times in October 2019 and left messages requesting outstanding treatment records. Additionally, the RO sent two letters to Dr. Rice in October 2019 and November 2019 requesting outstanding treatment records. No response was received. A new VA examination and medical opinion were obtained in February 2020. In July 2021 the RO asked the Veteran to complete and return the relevant medical release forms (VA Forms 21-4242a and 21-4242) identifying any outstanding private treatment records, as well as to provide specific details of the newly claimed stressor of witnessing a suicide in service. The Veteran did not respond to the request. See September 2019, July 2021 Subsequent Development Letters; see also November 2019 Reports of General Information. For these reasons, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the January 2019 and July 2021 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Veteran's complete service treatment records are not available. See August 2021 Final Attempt Letter. The RO contacted the National Personnel Records Center (NPRC) in January 2016 to try to obtain service treatment records, but the NPRC responded that all available records were mailed. The RO requested service treatment records from the Records Management Center (RMC) in June 2021; however, they responded that no records were found. The RO conducted an electronic search for service treatment records in the Joint Longitudinal Viewer in August 2021, but no records were found. The RO requested copies of any service treatment records in the Veteran's possession in a July 2021 letter, but no records were submitted by the Veteran. A small portion of the Veteran's service treatment records and the service personnel records were provided by NPRC in January 2016, but the service personnel records are mostly illegible. In situations where service treatment records are completely or partially unavailable, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard is not lowered for proving a service connection claim, but rather the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in the appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection for an Acquired Psychiatric Disorder is Denied. The Veteran contends that he served on USS Gettysburg (CG-64) in February 1991 while the ship fired missiles into the Persian Gulf, killing a countless number of civilians and destroyed buildings as part of Operation Desert Storm, and that he spent two to twelve hours at a time isolated at a battle station. He asserts that as a result he has developed a psychiatric disorder that affects sleep, causes anxiety and panic attacks, and makes him uncomfortable in crowded areas. See January 2016 Statement in Support of the Claim, January 2016 Correspondence, October 2019 Correspondence. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. The evidence shows a current diagnosis of PTSD, which is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with 38 C.F.R. § 4.125(a)), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Id. If VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service." Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). 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. 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. 38 C.F.R. § 3.304 (f)(3). 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 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (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 (1994). Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Under 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 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 reconsideration, 1 Vet. App. 406 (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. The record reflects a current diagnosis of PTSD. See December 2015 private treatment record, February 2020 VA examination report. The April 2016 VA examination report also reflects a diagnosis of a gambling disorder, which appeared to be solely based on the Veteran's report that he and his wife have a gambling problem. The examination report indicates that the Veteran reported that he "self-excluded" himself from casinos in Connecticut, and that he only goes to the casino in Atlantic City about twice a year and to the casino in Vegas every few years to "drink and gamble." Additionally, the examiner noted that there is a high probability that the Veteran's scores were not valid, noting that upon close questioning about his answers, the Veteran's descriptions of his symptoms did not warrant the high scores he gave them. Prior to the April 2016 VA examination, the Veteran had not claimed, and the evidence did not show, any problems with gambling. Moreover, the Veteran's treating psychologist made no mention of any gambling disorder in a December 2015 letter. In November 2019, the Board requested an addendum opinion for the VA examiner to explain how he determined that the Veteran has a gambling problem. In the February 2020 VA examination report, the VA examiner opined that the Veteran did not show evidence of a gambling disorder during the assessment, despite the Veteran's 2019 letter that gambling problems started in service. The VA examiner noted that PTSD can exacerbate gambling, and that the claimed symptoms of gambling and panic attacks among others are considered subsumed under the diagnosis of PTSD. See February 2020 VA examination report. As such, the weight of the evidence is against an additional diagnosis of a gambling disorder. After a review of all the evidence, lay and medical, the Board finds that an in-service stressor sufficient to cause PTSD is not corroborated by the evidence of record. The Veteran has offered two theories of a PTSD in-service stressor. Initially, the Veteran asserted that he served aboard USS Gettysburg during Operation Desert Storm in February 1991, when the ship fired missiles into the Persian Gulf, particularly Iraq, causing multiple casualties and destroying buildings. See January 2016 Statement in Support of the Claim, January 2016, October 2019 Correspondence. During the February 2020 VA examination, the Veteran raised a new in-service stressor, for the first time, of witnessing triple suicides while in service. As discussed below, the Board finds that the Veteran's recent assertions of the in-service stressors are inconsistent with, and outweighed by, other more contemporaneous and more probative lay and medical evidence of record. The Board has considered the December 2015 letter from Dr. Rice, which diagnosed PTSD with panic attacks. Dr. Rice indicated that he began treating the Veteran two months prior in October 2015, providing individual psychotherapy and medication evaluation, and reported associated symptoms of flashbacks of wartime experiences, nightmares, anxiety, panic attacks in crowded or isolated spaces, and inability to watch action movies because it was too stressful. Dr. Rice did not report on the specific stressor relied upon to support the diagnosis of PTSD. Additionally, Dr. Rice's treatment notes are not of record to ascertain the history of in-service stressor the Veteran provided for the purpose of diagnosis and treatment. The RO left Dr. Rice three messages via telephone and sent two letters requesting the relevant treatment notes, but received no response from Dr. Rice. The Veteran also reported that he had no treatment records to provide from Dr. Rice outside of the one-page December 2015 letter. See October 2019 November 2019 Development letters; November 2019 Report of General Information. After all assistance is exhausted, the Dr. Rice's purported diagnosis of PTSD with panic attacks is based on vague and uncorroborated stressor events. The Board also considered the February 2020 VA examination report, which reflects a diagnosis of PTSD. The report shows that the Veteran reported an in-service history of being a combat veteran who deployed to Iraq in support of Operation Iraqi Freedom. The VA examiner found the reported stressor to be consistent with fear of hostile military or terrorist activity. In other correspondence the Veteran asserted that he served aboard the USS Gettysburg in February 1991 while the ship was in the Persian Gulf and fired missiles into Iraq. See February 2020 VA examination report; see also January 2016 Statement in Support of the Claim, January 2016, October 2019 Correspondence. The weight of the evidence is against finding that the Veteran served in Iraq or otherwise in the Persian Gulf in 1991. The Veteran's statement that he served aboard the USS Gettysburg in February 1991 when it fired missiles into Iraq is inconsistent with other, more probative evidence of records. In a July 2016 letter, the Office of Judge Advocate General Claims for the Department of the Navy indicated that that they were unable to find any responsive records to corroborate the claimed stressor of USS Gettysburg firing any missile into Iraq during Desert Storm in February 1991. In a September 2016 VA memorandum, the U.S. Army and Joint Services Records Research Center (JSRRC) noted that they were unable to corroborate the claimed stressor as well. Specifically, JSRRC noted that the Veteran did not serve aboard USS Gettysburg until mid-1991. Further, U.S. Navy historical records show that the USS Gettysburg was not commissioned until June 1991, four months after the Veteran alleges the in-service stressor of occurred, and the vessel did not participate in any combat related operations in 1991 or 1992. The JSRRC noted that, prior to serving on USS Gettysburg, the Veteran served aboard a Submarine Tender, the USS Simon Lake AS-33, which had no service in the Persian Gulf during Operation Desert Storm. A review of the command history for the USS Gettysburg dated from April 1991 through January 1993 confirms that the ship did not participate in any combat operations in the Persian Gulf during this time period. Additionally, the evidence shows that USS Simon Lake served in Scotland from May 1987 through March 1992. See September 2016 Web/HTML Documents. In October 2019 correspondence, the Veteran indicated that he served aboard the USS Simon Loch in Scotland for two years prior to transferring to the USS Gettysburg. The DD Form 214 shows that the Veteran served from August 1988 to November 1993 and had two years of foreign service, which is consistent with the Veteran's report that he served aboard the USS Simon Loch in Scotland for two years. The available service treatment and personnel records indicate that the Veteran was located in Great Lakes, Illinois, from August 1988 through December 1988, and that he was recommended for overseas duty in December 1988. The available records also indicate that the Veteran served aboard the USS Simon Lake in January 1990, and subsequently transferred to USS Gettysburg in 1991. Service records also indicate that the Veteran was attached to Sima in Mayport, Florida in 1993 until separation in November 1993. See August 1988, December 1988, December 1991, April 1993, May 1993, October 1993 service treatment records, see also service personnel records. The DD Form 214 indicates that the Veteran's military occupational specialty was an Interior Communication Electrician. The DD Form 214 does not indicate that the Veteran's received any medals or badges that indicate the Veteran served in a combat or hazardous area or even the Southwest Asia theater of operations during the Persian Gulf War, to include the Combat Infantryman Badge, the Combat Action Ribbon, or Southwest Asia Service Medal. Overall, the available evidence of record does not corroborate the claimed in-service stressor of serving aboard the USS Gettysburg in February 1991, during which the vessel allegedly fired missiles into Iraq or the Persian Gulf. The evidence of record shows that USS Gettysburg was not commissioned until four months after the claimed stressor (June 1991), which is consistent with the JSRRC showing that the Veteran did not serve aboard the vessel until mid-1991. The command history of the vessel shows that the ship did not engage in any combat operations in the Persian Gulf in 1991 or 1992, and other service records show that that V1 was stationed in Florida in 1993 when he separated from service. Although the December 2015 letter from Dr. Rice and the February 2020 VA examination report rendered a diagnosis of PTSD based the Veteran's purported exposure to combat activities aboard the USS Gettysburg, the December 2015 and February 2020 histories as reported by the Veteran are of no probative value as they are inconsistent with and outweighed by other competent and credible evidence of record which shows that the Veteran's report of serving aboard the USS Gettysburg in February 1991, while the vessel purportedly fired missiles into the Persian Gulf, are unfounded. As both of these examination reports rely on an inaccurate history of in-service stressors as support for the PTSD diagnosis, the diagnosis is unsupported by a corroborated stressor event, so is of no probative value. By the same necessary logic, any purported nexus opinions or implicit suggestions that the PTSD diagnoses were related to in-service claimed stressor events is also based upon an inaccurate factual assumption, so is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). To be clear, the Board is not rejected the Veteran's reported in-serve stressor events because they are from the Veteran; rather, the Board has found that such reported stressor events are outweighed by the other lay and medical evidence of record, so as not to be credible. The fact that medical professionals wrote down the Veteran's inaccurately reported history of claimed stressor events in an examination report does not make it a medical determination or change noncredible reports of what happened during service into credible ones. Furthermore, the Veteran's second claimed in-service stressor of witnessing a triple suicide in service also has not been corroborated. Notably, the Veteran made no mention of any in-service stressor related to witnessing a suicide in service when he filed the claim January 2016, nor during the April 2016 VA examination. Dr. Rice also did not reference any history of the Veteran witnessing a suicide in the December 2015 letter. (Continued on the next page) The Veteran first raised the in-service stressor of witnessing a triple suicide during service years into the compensation claim, during the February 2020 VA examination. The Veteran provided no further details of the vaguely claimed in-service stressor, to include when he witnessed the alleged suicide, who the victims were, his relationship (if any) to the alleged victims, the manner of suicide, or where the event occurred. In a July 2021 letter, the RO requested that the Veteran provide a detailed account of the stressful event, but the Veteran did not respond to the request for additional information, precluding the RO's ability to further develop for the claimed in-service stressor. See Wood v. Derwinski, 1 Vet. App. 190 (1991) (holding that while VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street), see also Turk v. Peake, 21 Vet. App. 565, 568 (2008). The evidence of record does not reflect any other lay or medical evidence to corroborate the Veteran's newly raised in-service stressor of witnessing a triple suicide during service, and the Veteran has not put forth any specific details of the alleged event to allow VA to further develop the claimed in-service stressor. For these reasons, there is insufficient evidence of record to verify the claimed in-service stressor of witnessing a triple suicide in service. Based on the foregoing, the Board finds that a preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, to include PTSD; therefore, the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.