Citation Nr: 21071026 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-41 037 DATE: November 29, 2021 ORDER Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The Veteran's psychiatric disorder did not originate in service or until years thereafter, and the competent and credible evidence fails to establish an etiological relationship between the Veteran's currently diagnosed psychiatric disorder and his active service. CONCLUSION OF LAW A psychiatric disorder, to include PTSD, was not incurred in or aggravated by service and may not be presumed related to service. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from June 1977 to June 1981. This matter is on appeal from an August 2017 rating decision. In August 2021, the Veteran and his spouse testified at a virtual hearing with the undersigned Veterans Law Judge. A transcript of this hearing is of record. Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, certain diseases, such as psychoses, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, as the Veteran has not been diagnosed with any psychoses at any time during the pendency of the appeal, continuity of symptomatology is simply not applicable with regard to the Veteran's claimed psychiatric disorder. 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) (2015); Cohen v. Brown, 10 Vet. App. 128 (1997). Diagnoses of mental disorders must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM- IV). Id., see also 38 C.F.R. § 4.125 (a). In August 2014, VA amended 4.125 by changing DSM-IV to DSM-5. See Fed. Reg. 45093 (Aug. 4, 2014). With limited exceptions, a veteran's lay testimony alone is generally insufficient to establish the occurrence of a stressor. 38 C.F.R. § 3.304(f). Special consideration must be given to claims for service connection for PTSD based on personal assault as a result of the sensitivity and difficulty in establishing proof of the assault in such claims. Patton v. West, 12 Vet. App. 272 (1999). Medical evidence could be used to corroborate the Veteran's claimed stressor in personal assault PTSD claims. Id. Further, 38 C.F.R. § 3.304(f)(5) also allows the Veteran to use evidence other than the service treatment records to corroborate his account of the stressor incident. This evidence includes, but is not limited to: medical records, police records, statements from the Veteran's family and friends, and changes in behavior, to include, substance abuse, a request for a transfer to another military duty assignment, and unexplained changes in social behavior. This evidence is still subject to a credibility analysis. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). The other exceptions to the stressor verification requirement are inapplicable in this case. See 38 C.F.R. § 3.304(f)(1)-(4). VA is not required to grant service connection just because a health care professional accepts a claimant's description of experiences during service as credible and provides a diagnosis of PTSD on that basis. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The adequacy of a reported stressor to cause PTSD is a medical determination, but the occurrence of the event alleged as a stressor that caused PTSD is an adjudicative determination. Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993). Similarly, the Board may still weigh any medical opinion evidence submitted or obtained under 38 C.F.R. § 3.304(f)(5) in context with other record evidence, and the mere submission of a medical opinion does not preclude the Board from making a factual determination regarding the weight to be given to that opinion concerning the stressor or diagnosis. Menegassi, 638 F.3d at 1382 n.1. The Veteran contends that he has PTSD related to racist verbal and physical assaults during service and to a May 1981 plane crash onboard the U.S.S. Nimitz and claims of The service treatment records (STRs) are void of findings, complaints, symptoms, or any diagnoses related to a psychiatric disorder. The service personnel records also do not document any behavioral changes or inability to fulfill duties to support the Veteran's contention or reflect poor performance or other evidence indicative of mental health issues. In a May 2017 Statement in Support of Claim for Service Connection for PTSD, the Veteran indicated that he did not know when the stressor event occurred, but that the stressor event occurred on a ship. The Veteran was unable to provide specific dates, but contended that while onboard the U.S.S. Nimitz he saw people eaten by sharks. He also witnessed people get sucked into the intakes of jet aircraft and on three occasions bombs went off when planes landed incorrectly and ran into other planes on the ship. The Veteran described body pieces being all over the ship which he had to clean up. He also stated that he was subjected to racial slurs and prejudice. In an August 2017 memorandum, the U.S. Department of Army, Records Management and Declassification Agency (RMDA) (formerly the Joint Services Records Research Center (JSRRC)) issued a formal finding of a lack of inability to corroborate the Veteran's claimed stressors. Efforts to obtain the needed information were exhausted and any future attempts were deemed futile. Post-service VA treatment records include a September 2017 report which indicates an assessment of anger issues and questionable PTSD. The physician stated that the event which the Veteran and his spouse thought would qualify for PTSD was unclear, but indicated that he would be provided a mental health evaluation. A September 2017 mental health outpatient initial evaluation note shows that the Veteran did not think about trauma and denied unstable emotional health. He stated that he did "okay" overall. The Veteran and his wife stated they were told to go through the mental health center for his PTSD claim, but he did not feel that mental health services were needed. A psychiatric diagnosis was deferred. A March 2020 mental health note shows that the Veteran was referred for anger issues and negative military experiences, but a PTSD screening was negative. Another March 2020 report indicates that the Veteran stated that he was hogtied and called a racial slur during service. He indicated that the crewmate above his rank led a group of guys that harassed him and nothing was done about it. The Veteran stated that he was moved to a different workstation alongside one of his harassers. The Veteran also stated that there was a plane crash on the landing deck and he had to clean up body parts. The assessment was "anger issues." An April 2020 mental health note indicates a chief complaint/referral for possible PTSD, anger, and military harassment. It was noted that he was suffering bereavement issues, including suffering many deaths within his family and a loss of his ministry due to a stroke in 2017. The initial DSM-5 diagnoses were chronic PTSD and anger. Notably, however, none of these records related the Veteran's PTSD to his service. Lay statements in support of the Veteran's claim include a January 2020 statement from his mother who stated that he was a "very nervous person" after service and could not stand loud noises. She stated that his personality changed, that he suffered a lot of bigotry, and that he saw many of his friends die in front of him and had to clean up the bodies. In statements provided by the Veteran in February 2020, he stated that he endured a lot of prejudice and was the subject of racial slurs which caused a bit of anger. He stated that "J.D.B." and 10 other crewmembers were part of a racist group that constantly called him racial slurs. He said he told "Lieutenant P. and Chief M.," but nothing was done. He also stated that his supervisor "J.D.B." and a crewmember tied him up with a rope for hours until a friend untied him. He also stated that he saw many of his friends and others killed in many ways including falling and jumping overboard and being eaten by sharks. In June 2021, the Veteran underwent a private psychological evaluation to assess his current mood especially regarding concerns that he may be suffering from long-standing, unaddressed trauma from his past. The Veteran presented that he was unable to forget negative instances during service including racist behavior from crewmembers. He reported a significant amount of trauma regarding racist behavior from crewmates, physical assaults, witnessing death and dismemberment, near-death experiences, and general fearfulness concerning his four-year deployment with the Navy. His wife stated that she noticed anxiety, anger, and negativity since their marriage five years after his deployment. The psychologist indicated that no relevant historical information was able to be gathered or reviewed prior to the evaluation after which PTSD was diagnosed. However, the psychologist opined that the Veteran's background history overall suggests that he was exposed to chronic stress during his service that was never formally diagnosed or treated which resulted in long-standing issues of thought intrusion and affective difficulties. The psychologist further opined that as a whole his presentation resulted in accompanying emotional and behavioral difficulties likely due to his past symptoms of trauma suggestive of PTSD. In an August 2021 statement crewmember "T.W." attested to serving with the Veteran onboard the U.S.S. Nimitz and indicated that he observed that the Veteran was verbally and physically abused. In August 2021, the Veteran provided a May 1981 newspaper article about the plane crash on the U.S.S. Nimitz. In August 2021, the Veteran also provided Vet Center records which include a December 2018 note and shows that his counselor stated that he denied all of the clusters of PTSD except irritability. A June 2019 note shows that the Veteran complained of harassment from "Lieutenant P.," "J.D.B.," and "Chiefs M. and C." In an August 2021 statement, the Veteran stated that the last two and one-half years of his service did not go well. He stated that racist bullying began in late 1978 while onboard the U.S.S. Nimitz. Although he was unable to remember the name of the main person who he says verbally assaulted him, threatened to hang him, and tied him up by his ankles, his friends ("T.W." and "A.M.E.") untied him and got him down. He also stated that in early 1981 a plane crashed on the boat's deck killing several people at which time he was working in the jail. He stated that his nerves got really bad when the bodies had to be cleaned off of the deck and body bags were taken down to the mess hall. In August 2021, the Veteran testified that he was constantly harassed during service by fellow servicemembers who called him racial slurs. He testified that his Chief told him to let it go. He said that the men used lanyards to hang him from the rafters. The Veteran also testified that there was a bad accident onboard the ship. They were bringing down body bags and he saw that. At that time, they sent him to work in another workstation. His wife testified that she was not married to him at that time, but that over the years he told her about some of the things that happened to him. She testified that the Veteran could not remember the name of the instigator that led to him being tied and hung up by his ankles, but that two of the guys involved were "J.D.B." and "D.B.M." She further testified that "Chief C." knew about the abuse, but did nothing. His Master Chief Lieutenant "P." and Head Officer "G." also failed to act on his behalf during a two-year period. The Veteran confirmed that he was not in receipt of medical treatment or counseling and/or medications for treatment of his PTSD. His wife further testified that there was a plane crash onboard the U.S.S. Nimitz and that a lot of bombs went off. The Board finds that the claim must be denied. There is no competent medical evidence to show that the Veteran has any psychiatric disorder, to include PTSD, that is related to his service. The Board has considered the August 2021 statement from "T.W.," but finds that the statement is of diminished probative value due to a lack of specificity. "T.W." merely reiterated that the Veteran was verbally and physically abused as previously described by the Veteran. However, like the Veteran, he did not provide a date for the occurrence of the incidents, including the incident during which the Veteran was "hog tied" and freed by "T.W." Such facts are not required; however, increased specificity can add to the persuasiveness of such uncorroborated statements and, potentially, lead to further development of the assertions or possibly a finding that the alleged stressor occurred based on those statements alone. That is not the case here. As noted above, the Veteran is not a credible witness. His statements, therefore, are of no probative value. The buddy statement is of diminished probative value, and when weighed against the remaining evidence of record, the Board does not find the statement from "T.W." to be credible or persuasive supporting evidence that any alleged stressor occurred. The Board emphasizes that absence of a record of the incident is not evidence that the physical and verbal abuse did not occur. Rather in this case, it is the lack of markers in the service records that weighs against the claim that such verbal and physical assaults happened. The Board has also considered statements and testimony from the Veteran's wife regarding his claimed service-related PTSD stressors. However, like "T.W." she also merely reiterated what was told to her by the Veteran. Accordingly, the Board does not find her statements and testimony to be credible or persuasive evidence. Finally, the Board has considered the June 2021 private psychiatric evaluation and medical opinion, but notes that it is not based on a review of the of the Veteran's case as a whole. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). It is true that a review of the claims failure or lack thereof does not control the probative value of a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the opinion relates the Veteran's PTSD to his service, his claimed stressors of verbal and physical assaults have not been corroborated by his STRs, SPRs, or any competent and credible lay evidence of record (i.e., witness statements). Accordingly, any medical evidence or medical opinion that finds that the Veteran has PTSD related to verbal and physical abuse during service, based on the uncorroborated history provided by the Veteran, has limited probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Regarding the stressors involving the May 1981 plane crash onboard the U.S.S. Nimitz; the Veteran's involvement in cleaning up body parts; witnessing crewmembers being sucked into intakes; seeing crewmembers fall and jump overboard and get eaten by sharks; and witnessing bombs going off, the Board finds that these specific incidents have not been corroborated by the evidence of record. The Board has also considered whether the Veteran has been diagnosed with any psychiatric disorders other than PTSD. However, the Veteran does not contend nor does the evidence of record reflect any additional psychiatric diagnoses. The Board finds that there is no competent medical evidence to show that the Veteran has any psychiatric disorder, to specifically include PTSD, that is related to his service. In this case, the earliest post-service medical evidence of the Veteran's PTSD was in April 2020 which is over 38 years after service. Moreover, the Board finds that the Veteran's statements relating his PTSD to his service, as well as those of his spouse, are not credible and are afforded no probative value. Their contentions conflict with the absence of treatment evidence for over 38 years. Finally, there is no competent medical evidence that the Veteran has any psychiatric disorder that is related to his service. The Board has taken the contention that the Veteran has a psychiatric disorder that was caused by service, seriously. The Board has also closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his claimed psychiatric disorder. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of his psychiatric disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a psychiatric disorder, including PTSD, and there is no doubt to be otherwise resolved. As such, this claim is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.