Citation Nr: 21070475 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 15-33 796 DATE: November 24, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. There is no competent and credible evidence corroborating the Veteran's claimed in-service stressor and, consequently, he does not have a diagnosis of PTSD based on a verified in-service stressor. 2. An acquired psychiatric disorder other than PTSD is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include 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 FINDINGS AND CONCLUSION The Veteran served on active duty from December 1975 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In December 2017, the Board remanded the appeal for additional development and, in May 2019 and June 2020, denied service connection for an acquired psychiatric disorder; however, the United States Court of Appeals for Veterans Claims (Court) granted the Veteran's and the Secretary of VA's (the parties') Joint Motions for Remand (JMRs) in December 2019 and June 2020, respectively, which vacated and remanded such decisions. In May 2021 and August 2021, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. As relevant to the current claim, the term "psychosis" includes a brief psychotic disorder; delusional disorder; psychotic disorder due to general medical condition; psychotic disorder, not otherwise specified (NOS); schizoaffective disorder; schizophrenia; schizophreniform disorder; shared psychotic disorder; and substance-induced psychotic disorder. 38 C.F.R. § 3.384. Alternatively, when a disease at 38 C.F.R. § § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, as the Veteran does not have diagnoses of psychoses, service connection on a presumptive basis, to include based on a continuity of symptomatology, is not warranted. 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. The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association's Diagnostic and Statistical Manual, Fifth Edition (DSM-5). 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.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his current acquired psychiatric disorder is related to a traumatizing incident that occurred during his military service, which will be discussed in greater detail below. VA treatment records reflect that the Veteran has been diagnosed with PTSD and depression/major depression. However, as will also be discussed below, the Board finds that there is no competent evidence corroborating the Veteran's claimed stressor, and the evidence does not otherwise show that an acquired psychiatric disorder is causally or etiologically related to any disease, injury, or incident during service. In this regard, the Veteran alleges that, while stationed in Okinawa at Camp Schwab, there was a helicopter crash in the jungle and he was required to retrieve body parts and place them in bags. He further indicated that, following the incident, he was continuously transferred to different units, which caused him anxiety due to the difficulty in adjusting and getting along with other individuals, and resulted in his involvement in an altercation that led to confinement as well as multiple altercations following his confinement. Additionally, the Veteran noted that, at the time of his discharge from service, he was experiencing anxiety and anger issues, and was told that he should seek mental health treatment. In support of his claim, the Veteran's spouse reported that, since she met him in 1984, he has had a lot of anger issues and did not like the feeling of being enclosed. As an initial matter, the Board acknowledges that the Veteran is competent to report what he experienced in service, such as recounting events that he witnessed or feelings that he experienced. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465 (1994). However, due to the nature of his claimed stressor, such must be corroborated by evidence other than his own testimony. In the instant case, the Board observes that, while the Veteran's service personnel records confirm that he served in Okinawa, Japan, his service treatment and personnel records are negative for confirmation of his claimed stressor of the helicopter crash. Further, in December 2017, the Board determined that a remand was necessary in order for the AOJ to seek additional information from the Veteran in an attempt to verify such reported stressor through any appropriate source. Thus, in January 2018, the AOJ contacted the Veteran and requested that he provide specific details of the stressful incident(s) in service that he believed resulted in his PTSD, to include the location, approximate date, and names of servicemembers involved in the incident(s). As the Veteran did not respond to such letter, in November 2018, the AOJ again contacted the Veteran and advised him that the requested information was needed in order to attempt to verify his claimed stressor through an appropriate source. In this regard, he was informed that the information received to date did not meet the minimum level of detail needed for such an attempt. Thus, he was again requested to provide details regarding his claimed incident(s). However, the Veteran did not respond. Here, the duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). Consequently, in January 2019, the AOJ made a formal finding that the information submitted by the Veteran regarding his in-service stressor event was insufficient to submit to the Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of the Marines Research Center and/or National Archives and Records Administration (NARA). In this regard, the AOJ indicated that (1) the Veteran's service personnel records and all necessary documents were reviewed; (2) in January and November 2018, they contacted the Veteran in order for him to provide additional details with respect to the claimed helicopter crash; and (3) as of January 2019, they had not received any further details from the Veteran, and the was no information in his file to do any research on his alleged stressor. Therefore, the Board finds that the Veteran's claimed stressor regarding the helicopter crash has not been verified. As such, his uncorroborated account cannot service as a verified stressor for the purpose of establishing service connection for PTSD. The Board acknowledges that the Veteran's VA treatment providers have diagnosed PTSD based on such claimed in-service stressor. Specifically, a May 2017 VA treatment record indicates that, with respect to trauma history, he reported that, in 1977, he was responsible for retrieving the bodies from a helicopter crash, and PTSD from his war trauma was diagnosed. Additionally, a July 2017 VA treatment record indicates the Veteran's report of having experienced trauma when he was ordered to a detail that required the removal of body parts after a helicopter crash. In this regard, the Board notes that, if a veteran has received a diagnosis of PTSD from a competent medical profession, VA must assume that the diagnosis was made in accordance with the appropriate psychiatric criteria in regard to the adequacy of the symptomatology and the sufficiency of the stressor. Cohen v. Brown, 10 Vet. App. 128, 153 (1997). Nevertheless, VA may reject such a diagnosis on a finding that the preponderance of the evidence is against (1) the PTSD diagnosis; (2) the occurrence of the in-service stressor; or (3) the connection of the current condition to the in-service stressor. The adequacy of a stressor, sufficiency of symptomatology, and diagnosis are all medical determinations. Cohen, 143-44. However, the question of whether the 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). In the instant case, the Board finds that there is sufficient evidence to reject the PTSD diagnoses contained in the record. Specifically, such diagnoses are based on an unverified stressor as there is no competent and credible evidence corroborating the Veteran's claimed stressor of the helicopter crash. Consequently, he does not have a diagnosis of PTSD based on a verified in-service stressor. However, as previously noted, the Veteran has an additionally diagnosed acquired psychiatric disorder of depression/major depression. However, as discussed in the prior Board decisions, his available service and personnel treatment records are negative for any complaints, treatment, or diagnosis referable to an acquired psychiatric disorder. Additionally, while such document the Veteran's confinement as a result of a conviction at a November 1978 special court martial for assault, such do not reflect any psychiatric symptomatology. In this regard, to the extent that the Veteran has alleged that his psychiatric disorder is related to his incarceration and he has experienced a continuity of psychiatric symptomatology thereafter, the Board notes that such was the result of his willful misconduct and, thus, no benefits may be awarded based on such event. Specifically, willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. §§ 3.301, 3.1(n)(1). Further, a May 2009 psychological examination conducted for the Social Security Administration reflects the Veteran's report that he was a heavy drinker in service and had been incarcerated for fighting and unwarranted discharge of a firearm, and had several arrests for disorderly conduct as a civilian. The examiner noted that the Veteran had a long history of alcohol abuse and violence, which may have been caused by past affective or other mental health issues; however, he did not relate such past disorder to any instance of the Veteran's military service. Furthermore, the Veteran denied a history of mental health issues before the onset of hepatitis C, and the examiner diagnosed acquired psychiatric disorder, characterized as mood disorder, related to his nonservice-connected hepatitis C and diabetes. Based on the foregoing, the Board denied the Veteran's claim in May 2019 and June 2020 decisions. However, in the December 2019 and December 2020 JMRs, the parties twice agreed to vacate such decisions as the Board failed to adequately explain why the Veteran should not be afforded a VA examination so as to determine whether he had a current acquired psychiatric disorder related to his military service. As the parties found the Board's prior analyses inadequate as to why such an examination was not warranted, the Board remanded the claim in May 2021 in order to afford him such a VA examination. Consequently, in June 2021, the Veteran underwent such examination, at which time the examiner found that he did not meet the DSM-5 criteria for a diagnosis of PTSD. She further found that, while he had a diagnosis of unspecified depressive disorder, such was secondary to opiod use disorder and alcohol use disorder that developed in 2008/2009 in reaction to post-service life events, and thus, was unrelated to his military service. However, as such opinion did not consider the specific evidence of record as requested by the Board in the May 2021 remand, the Board remanded the case in August 2021 in order to obtain an addendum opinion addressing such matters. Thereafter, in September 2021, a VA examiner reviewed the record, to include the evidence cited by the Board, and concluded that it was less likely than not that the Veteran's acquired psychiatric disorder was incurred in or caused by military service. In support thereof, she reported that the totality of the evidence did not suggest that the Veteran developed a significant mental health disorder during or related to service. Here, the examiner noted that the Veteran was obviously a very patriotic American and was proud of his service in the Marine Corps; however, by his own admission, he was a heavy drinker and prone to violence prior to military service. In this regard, she indicated that the violent assault of another Marine was done while under the influence of alcohol and in response to being insulted in a club, which he said that, as a Marine, he could not tolerate. In this regard, he indicated that he believed in the Marine Corps tradition that good Marines go to the brig. The examiner further indicated that neither such scenario, nor the one at Parris Island, was consistent with a sudden episode of rage, as was suggested by his attorney. Instead, they were alcohol-fueled reactions to perceived wrongdoing. Additionally, the examiner reported that, although during his hearing testimony the Veteran said that he had been depressed since he left the military, medical records showed that he was inconsistent in attributing his mood disorder to the military at times stating it started after he had his heart attacks and had to leave his business and stop working, or to more recent legal trouble, or to his opiate addiction. Further, she noted that the mental health treatment the Veteran received shortly after discharge was alcohol rehabilitation and, based on his spouse's testimony, he then did not again seek treatment until 2008, more than 25 years later, thus suggesting that significant mental health symptoms were not present during this time period. The Board has carefully reconsidered the facts of this case, including the concerns raised in the JMRs. Ultimately, the appeal must again be denied because the preponderance of the evidence weighs against the Veteran's claim. In this regard, the Board affords great probative weight to the August 2021 VA examiner's opinion that the Veteran's acquired psychiatric disorder is not related to military service. Here, as noted in the JMRs, and May and August 2021 Board remands, in rendering her decision, the examiner considered the Veteran's assertions, to include experiencing depression since service, his mental health treatment, and his abuse of alcohol; his in-service altercation and assault in October 1987; the May 2009 psychiatric evaluation; and the Veteran's attorney's argument. Furthermore, such opinion provided a detailed rationale for the conclusions reached, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary. The Board has also considered the Veteran's and his spouse's assertions that he has an acquired psychiatric disorder, to include PTSD, related to his military service. In this regard, as noted previously, as lay people, they are competent to report matters within their personal knowledge, such as the occurrence of an injury or event, and his symptoms; however, they do not have the specialized training sufficient to render an etiological opinion. See Jandreau, supra at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of an acquired psychiatric disorder involves a medical subject concerning an internal psychiatric process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires the administration and interpretation of psychological testing, knowledge of the psyche, and the way certain events affect psychological functioning. Thus, such may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Moreover, whether the symptoms the Veteran reportedly experienced during or after service are in any way related to his currently diagnosed acquired psychiatric disorder is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Accordingly, the Veteran's and his spouse's opinions as to the onset and etiology of his acquired psychiatric disorder is not competent evidence and, consequently, is afforded no probative weight. Therefore, based on the foregoing, the Board finds that the Veteran does not have a diagnosis of PTSD based on a verified in-service stressor, and an acquired psychiatric disorder other than PTSD is not shown to be causally or etiologically related to any disease, injury, or incident during service. As such, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, that doctrine is not applicable and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, Associate Counsel 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.