Citation Nr: 21069364 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-22 296A DATE: November 18, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The record does not contain competent medical evidence establishing a diagnosis of PTSD based on an in-service traumatic event or stressor. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1965 to October 1968, with additional service in the Army National Guard of California and the Air National Guard of California until 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 legacy rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for PTSD. Generally, a claim for service connection for a psychiatric disability may be deemed to encompass all psychiatric diagnoses reasonably presented in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, a March 2019 rating decision denied the Veteran's claims for service connection for an acquired psychiatric disorder, other than PTSD, to specifically include anxiety and depression. In August 2019, VA received VA Form 10182 opting into the modernized appeals review system, also known as the Appeals Modernization Act (AMA), which identified the Veteran's claims for service connection for anxiety and depression. AMA claims are adjudicated separately from claims under the legacy system, and the Board cannot merge AMA claims with legacy claims. Therefore, the claims are now divided between a legacy appeal stream involving the claim for service connection for PTSD (this appeal) and an AMA appeal stream including the claim for service connection for acquired psychiatric disorder other than PTSD. Those issues are separately docketed under AMA and are currently awaiting the requested Board hearing. That AMA decision will be the subject of a future Board decision. In light of the facts of this case under both the new and old law, the Board believes it must proceed in this manner. Entitlement to service connection for PTSD The Veteran seeks service connection for PTSD. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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. 38 C.F.R. § 3.304(f). If a stressor claimed by a veteran is related to a 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 a 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 a veteran's service, a 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). When the evidence does not establish that a veteran is a combat veteran, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his reported service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of this section, VA shall request verification of service from a service department. 38 C.F.R. § 3.203. The United States Court of Appeals for Veterans Claims (Court) has held that a service department determination as to an individual's service shall be binding on VA. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran does not allege that he engaged in combat or that his stressors to support a diagnosis of PTSD are combat-related or related to the fear of hostile military or terrorist activity. Rather, he claims that his PTSD is due to two incidents that occurred in active service. In statements and at hearing, the Veteran testified that on his way to an Airforce Base in Taiwan, he spent approximately 12 days in Cam Ranh Bay, Vietnam, where upon landing, he saw dead bodies being loaded on to a plane. The Veteran's service records document service at the Kung Kuan Air Base and Ching Chuan Kang Air Base in Taiwan between 1966 and 1967, but do not confirm his presence in Vietnam. His DD-214 reflects that the Veteran's military occupational specialty (MOS) was material facility specialist. It does not show that he had any service in Vietnam, nor was he awarded the Vietnam Service Medal for service in support of the Vietnam conflict. In support of his claim, he submitted correspondence from the Department of the Air Force Historical Research Agency Department dated July 2017, which showed the official unit history for the 314th Troop Carrier (later Tactical Airlift). The document noted that in March 1966 members of the 314th Troop Carrier Wing, while stationed at Ching Chuan Kang Air Base, Taiwan (also known as CCK) served on temporary duty (TDY) at Cam Ranh Bay. The service treatment records contain no complaints, history, diagnosis or findings consistent with a psychiatric disability. On separation from service in September 1968, more than 50 years ago, he was psychiatrically evaluated as normal. Similarly, the Veteran's National Guard records are entirely negative for complaints, treatment or diagnosis of a psychiatric disorder, and examination reports in November 1979 and November 1982, reflect that the Veteran was psychiatrically evaluated as normal. In reports of medical history in November 1979, February 1981 and November 1982, he denied a history of depression or excessive worry, or nervous trouble of any sort. At this point, it is important for the Veteran to understand that it is the Veteran himself in 1968, 1979, 1981 and 1982, that is providing factual evidence against his own claim. Neither the service treatment records nor personnel records reference the Veteran's claimed stressor of seeing dead bodies or his presence in Vietnam. After service, VA treatment records reflect negative PTSD screens in July 2007 and May 2013. A clinical treatment note in June 2015 noted a history of depression and PTSD. In July 2015, the Veteran underwent a mental health evaluation. He complained of nightmares about Vietnam. Reportedly, he heard bombing and gunfire and saw wounded soldiers while he was on tour in Vietnam, at Cameron Bay, while dropping off supplies. A diagnosis of adjustment reaction with mixed emotion was recorded. A VA psychologist subsequently noted an assessment of adjustment disorder, rule out PTSD. On VA examination in June 2016, the Veteran reported that en route to Taiwan, he thought that they stopped in Vietnam to pick up bodies in a bag, or at least he thought it was bodies. He thought he spent 12 days in Vietnam. Reportedly, the worst thing he endured was carrying M16s and backpacking while not knowing what was going to happen. Although nothing happened, he was scared. The examiner noted that the Veteran had never been diagnosed with PTSD and did not meet criteria for a diagnosis of PTSD. Following a review of the evidence and an examination of the Veteran, the examiner concluded that the Veteran did not have a mental disorder that conformed with DSM-5 criteria, including PTSD. A VA clinician in September 2017, indicated that the Veteran reported that he was not interested in medication or treatment for PTSD. The clinician noted that it was unclear that the Veteran really wanted anything more than to get service connection for PTSD, which had not been diagnosed by any of his previous providers. Such a statement only undermines the Veteran's credibility with the Board. Private treatment records from June to August 2018 document a diagnosis of chronic PTSD due to military combat. In a July 2018 statement, a clinician reported that the Veteran was being treated for PTSD as a result of his experiences in service during the Vietnam War. In July 2021, a private psychologist evaluated the Veteran. The Veteran reported that as a material facilities specialist, he helped load and unload military planes and assisted in loading and unloading body bags while stationed in Vietnam. Reportedly, this was a tense and frightening experience, particularly because he slept in a tent in the supply area which was under a threat of attack. He noted onset of symptoms of anxiety while stationed in Vietnam. His symptoms progressed over the years. The clinician indicated that psychometric testing produced a score indicative of just slightly sub-threshold symptoms of PTSD. The clinician also noted that the diagnosis of PTSD in the 2018 private treatment records was based on an undocumented in-service combat stressor and the Veteran's symptom profile was not wholly consistent with a diagnosis of PTSD. The clinician found that the Veteran met the DSM-V criteria for a diagnosis of adjustment disorder with anxiety, as opposed to PTSD. Initially, the Board notes that the Veteran's alleged stressors are of a non-combat nature; as such, there must be credible supporting evidence to corroborate his alleged stressor events in service (on which his diagnosis of PTSD is based). Here, there is no such credible evidence. While the Veteran is competent to testify as to events that occurred in the past, consideration must be given as to whether such statements are self-serving and compensation driven. If a claimed stressor is not related to combat or fear of hostile or military activity, as is the case here, a veteran's lay statements alone are not sufficient to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, the record must contain service records or other corroborative evidence substantiating the veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In this case, the Veteran's accounts of what happened simply are internally inconsistent and are not supported by any corroborating evidence of record and, to a degree, refuted by the evidence of record. Specifically, no corroborating evidence has been able to be found in support of his contentions that he served in Vietnam. To the extent that the Veteran asserts that correspondence from the Department of the Air Force Historical Research Agency Department supports his claim of having served in Vietnam, while members of his unit may have served on TDY at Cam Ranh Bay, there is no evidence that the Veteran was one of them, and thus this evidence did not confirm the claimed Vietnam service. Moreover, the Veteran's description of his reported stressor has varied. He has reported that he was unsure of having been in Vietnam and unsure that he saw bodies or body bags, while also asserting that he himself loaded bodies in body bags on to aircraft while stationed in Vietnam. Further, for reasons noted above, the Veteran's credibility has been placed into question. The Veteran's treatment records do not indicate that the Veteran wants treatment for PTSD, only to be service connected for PTSD. He seems to seek "treatment" only to the extent that it supports a claim for VA compensation. As such, the Veteran's lay statements alone are not sufficient to verify his claimed stressor. While the Veteran is competent to attest to his in-service experiences and observable symptoms, in light of the evidence discussed immediately above, assuming, without conceding, that the stressor occurred, the evidence fails to show that the Veteran met the criteria for a diagnosis of PTSD. Here, the VA examiner in June 2016, found that the Veteran did not meet the criteria for a diagnosis for PTSD or a mental disorder that conformed to the DSM-5 criteria. The examiner also opined that the Veteran's reported military stressor incidents were inadequate to support the diagnosis of PTSD. Similarly, a private psychologist in July 2021 also noted that the Veteran's symptom profile was not wholly consistent with a diagnosis of PTSD and he did not meet the DSM-5 criteria for a diagnosis of PTSD. No PTSD diagnosis has been confirmed. To the extent VA treatment records document a medical history of PTSD, a bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional is a VA or private physician. LeShore v. Brown, 8 Vet. App. 406 (1995). Significantly, a diagnosis conforming to the DSM-5 criteria was not shown. Further, both service records and, most importantly, post-service treatment records are found to provide highly probative against this claim, indicating at some point the Veteran himself indicates that he does not have PTSD or PTSD related symptoms at some points. Additionally, while private treatment providers in 2018 provided a diagnosis of PTSD related to the Veteran's combat experiences in Vietnam (the Veteran was not in "combat"), as stated above, he did not serve in combat and his claimed stressors are not corroborated by credible supporting evidence, nor was a diagnosis of PTSD conforming to the DSM-5 criteria shown. Therefore, the diagnosis is rejected. The Board has considered statements from the Veteran asserting that he has PTSD. While the Veteran is competent to report his mental health symptoms, he has not been shown to be competent to diagnose a psychiatric disorder. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In a claim of service connection for PTSD, there is a specific legal requirement for a diagnosis, which requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125, that is, a diagnosis that conforms to the DSM. 38 C.F.R. § 3.304. Thus, the diagnosis of PTSD is a complex medical question and the Veteran has not been shown to possess the requisite expertise or knowledge to diagnose it. In light of the absence of a diagnosis of PTSD in accordance with DSM and sufficient information to permit the verification of the claimed stressors, the claim for PTSD must be denied. 38 C.F.R. § 3.304(f). (Continued on the next page) In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for PTSD, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.