Citation Nr: 21072128 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-38 107 DATE: December 2, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The preponderance of the evidence is against finding that PTSD began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1990 to April 1990 and from July 1998 to October 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in January 2021. This matter was previously before the Board in May 2021. At that time, the Board recharacterized the Veteran's claims and granted service connection for an acquired psychiatric disorder, other than PTSD, to include persistent depressive disorder and bipolar disorder. The Board remanded the Veteran's claim for entitlement to service connection for PTSD for additional development. A supplemental statement of the case was issued in September 2021 by the VA Appeals Management Center (AMC), which continued the denial of the claim. The case is once again before the Board. 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) 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). In that regard, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of active service, established the disease was incurred during active duty service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent and credible 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In any case where service connection is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such issue shall be given to the veteran. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). Analysis The Veteran is seeking service connection for PTSD which he asserts is related to verbal and mental abuse during active duty. See September 2015 VA 21-0781. Service connection for PTSD requires a medical diagnosis of PTSD 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). The above cited regulation, 38 C.F.R. § 4.125(a), refers to the American Psychiatric Associations' Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DMS-5) as the source of criteria for the diagnosis of claimed psychiatric disorders. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM, Fourth Edition (DSM-IV) and replace them with references to the updated DSM-V (5). Because the Veteran's appeal was certified to the Board in May 2019, this claim is governed by the DSM-5. Credible supporting evidence is not required in the case of a combat stressor reported by a combat veteran. 38 C.F.R. § 3.304(f)(2). If a claimed stressor is related to a fear of hostile military or terrorist activity and a VA psychologist or psychiatrist or one with whom VA has contracted confirms that the stressor is adequate to support a PTSD diagnosis and the veteran's symptoms are related to that stressor, the Veteran's report alone may be enough to establish the stressor. 38 C.F.R. § 3.304(f)(3). Initially, the Board notes that the Veteran had active service during a period of war. However, the Veteran's personnel records indicate that he did not have combat service. The evidence does not suggest that he engaged in combat with the enemy rather, the evidence suggests, and the Veteran has consistently asserted that his PTSD is due to verbal and mental abuse by his platoon leader. Therefore, neither the combat provisions of 38 U.S.C. § 1154 nor the rule relating to combat stressors are applicable. In an August 2015 Statement in Support of Claim for Service Connection for PTSD, the Veteran reported one in-service stressor which he described as "humiliation, belittling, threats and harassment" from his platoon sergeant, from his first day at the company until the day he left. He reported that the verbal and mental abuse was unbearable, and it still goes on in his head. A review of the medical evidence of record reveal multiple VA treatment notes with the first diagnosis of PTSD made in March 2011. See March 2011 VA psychiatry note. The records reflect the Veteran was first evaluated for mental health in December 2009. At that time the Veteran was diagnosed with depression. The clinician noted the Veteran screened negative for PTSD. See December 2009 VA preventive medicine note. On March 2011 VA psychiatry note, the VA psychiatrist noted the Veteran has complex PTSD. Id. The Veteran reported he has never been diagnosed with PTSD. Id. During a July 2015 VA mental health consult the Veteran reported a specific incident where he fell off a bridge and his commanding officer walked past and stated, "let him fall, he won't be missed." The Veteran identified this incident as causing him to stop caring and increase feelings of significant low self-worth. The clinician noted the Veteran appears to experience PTSD symptoms stemming from childhood abuse and low feelings of self-worth due to emotional abuse during active duty military. On a July 2015 VA social work noted, the clinician noted the Veteran was unable to get a letter from his provider to support his PTSD diagnosis. A September 2015 VA psychiatry note reflects that the Veteran reported because of the treatment by his platoon sergeant he found himself depressed and angry at others. During this visit, the VA psychiatrist indicated that he had a nice discussion with the Veteran about his experience during active duty. The VA psychiatrist opined that the Veteran's experience did not warrant a diagnosis of PTSD as he lacks a clear criterion A event. Notably, in October 2015, the Veteran filed a claim for depression (related to PTSD noncombat) and indicated he wished to withdraw his claim for PTSD in lieu of his new claim for depression. During his December 2015 VA mental disorders (other than PTSD and eating disorders) examination, the Veteran reported his primary problem is depression. He has a history of two suicide attempts in 2014 which he asserts were triggered by his depression. The Veteran was diagnosed with persistent depressive disorder (dysthymia). The VA psychologist indicated the Veteran did not have more than one mental disorder. He noted the Veteran's report that his platoon sergeant berated him verbally about his weight. The VA psychologist explained as this is not a criterion A stressor, the CAPS was not administered. He noted that the Veteran meets DSM-5 criteria for persistent depressive disorder. During his January 2021 Board hearing, the Veteran testified that he was harassed and belittled by his platoon sergeant until he separated from service. He testified to being called "fatbody" until he left service. He testified that when most soldiers were allowed to change their socks on a road march, he could not. He testified that the platoon sergeant made him run through puddles just to keep his feet wet and that this caused blisters, loss of toenails and blood running out of his boots. He testified that back then you could not say anything, you had to suck it up. He testified as to the incident during training where he slipped and fell on a bridge and his platoon sergeant said to "let him fall, his family will never miss him." In February 2021, following his Board hearing, the Veteran submitted buddy statements in support of his claim. The Veteran resubmitted these statements in November 2021. In a statement submitted by the Veteran's sister, she notes that since returning home from active duty her brother has changed and not for the better. She stated that he has become introverted and depressed all the time, and that one is on eggshells not knowing if he is going to have an outburst for expressing an opinion or action. The Veteran's niece submitted a statement noting that since service her uncle has become withdrawn, depressed, introverted and very moody. She stated he is not his happy go lucky self. In a statement from his nephew, he noted that having been close with the Veteran throughout different periods of his life, he can say that he is much different. He stated their once natural, easy-going relationship was now strained, pressured, and sometimes awkward due to his constant unstable mood. He noted concern that his uncle will never be the same. Finally, in a statement from a friend who allowed the Veteran to live with him and his family briefly, he reflected on a conversation with the Veteran where they had differing viewpoints. He stated the conversation escalated quickly to the point the Veteran was yelling and screaming and was having a hard time getting control of his emotions. He stated it was hard to wrap his head around what happened as it was a drastic mood swing and that it was atypical of the person he knew. While the Veteran's family members and his friend are competent as laypersons to report symptoms the Veteran experiences, or behaviors they have observed, the diagnosis of a psychiatric disability, specifically PTSD, falls outside the realm of common knowledge of a lay person. They have not demonstrated that they have the necessary medical training and expertise necessary to assess such a complex medical diagnosis as PTSD or to differentiate such a condition from other psychiatric disabilities. See Layno v. Brown, 6 Vet. App. 465 (1994). Further in support of his claim, the Veteran submitted letters from his treating providers in February 2021. The Veteran also resubmitted these letters in November 2021. In the January 2021 letter from A.J., PMHNP, he noted he is familiar with the Veteran's medical and psychiatric history and with the functional limitations imposed by his health concern. He noted the Veteran is compliant with his treatment and has not verbalized any side effects to current treatment regimen. He also noted that his letter does not pertain to any recommendations for disability assessments or recommendations. In the February 2021 letter from A.V., Ph.D., she noted the Veterans reports of experiencing PTSD symptoms including intrusive thoughts and nightmares related to the bridge incident. However, she did not diagnose PTSD or provide a nexus opinion. In the February 2021 letter from his treating physician, D. O., M.D. provided a diagnosis of PTSD, chronic in nature but did not explain the basis upon which PTSD was diagnosed. D.O. noted the Veteran's self-reports of PTSD symptoms however it is not clear if the Veteran was fully assessed with respect to the DSM criteria for PTSD at the time the diagnosis was made. Therefore, D.O.'s opinion is afforded little probative value. In May 2021, the Board determined that an addendum medical opinion was required to determine if the Veteran has PTSD with delayed onset or whether the Veteran's PTSD clearly and unmistakably existed prior to the Veteran's active duty service because his PTSD has been related to pre-service trauma. In the August 2021 VA medical opinion, the examiner opined that PTSD is less likely than not incurred in or caused by service. In addressing the Board's remand directives, the examiner noted that PTSD cannot be said to have clearly and unmistakably pre-existed service, despite the fact that several VA providers have described him as suffering from childhood PTSD. He explained that there is no evidence the Veteran was diagnosed with or treated for a mental health condition prior to service, and he was presumed sound on entry. The VA examiner noted that since the Veteran's PTSD did not clearly and unmistakably exist prior to service, the issue of whether or not it was aggravated by service is moot. The examiner further explained that the in-service stressors described by the Veteran are not corroborated by available service treatment records and the in-service stressors described by the Veteran would not meet the DSM-5 definition of a traumatic event: "exposure to actual or threatened death, serious injury, or sexual violence." He stated that without meeting the DSM-5's definition of a traumatic event, an in-service diagnosis cannot be supported. The Board finds that the August 2021 VA medical opinion provides the most probative evidence as to whether the Veteran meets the criteria for a diagnosis of PTSD in this case, as the VA clinician review the Veteran's claim file, considered the Veteran's reported stressors, and provided an analysis of why the Veteran did not meet the specific criteria for the diagnosis of PTSD under the DSM-5. Furthermore, assuming that the diagnosis of PTSD by D.O. is adequate, there is, nevertheless, a need to corroborate the claimed stressors. A stressor involves exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and the person's response involved intense fear, helplessness, or horror. See Cohen v. Brown, 10 Vet. App. 128 (1997). The evidence necessary to establish the occurrence of an in-service stressor varies depending on whether or not the veteran engaged in combat with the enemy. Gaines v. West, 11 Vet. App. 353, 358 (1998). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressor is related to combat, the veteran's lay testimony, alone, is sufficient to verify the claimed in-service stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d), (f). If a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, and a VA psychiatrist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military activity" is defined to mean 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, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The list of examples of such an event or circumstance specifically includes attack upon friendly military aircraft, vehicle-imbedded explosive devices, and incoming artillery, rocket, or mortar fire. See 38 C.F.R. § 3.304(f)(3). The Board finds that the relaxed standard based on fear of hostile military activity does not apply in the instant case as such claimed stressors are not based on a fear of hostile military activity. Instead, the Veteran's stressors relate to military activity by his own troops, which is not hostile military activity. See Acevedo v. Shinseki, 25 Vet. App. 286, 289 (2012) (holding that "hostile military or terrorist activity," as used in subsection (f)(3), refers to actions taken by an enemy of the United States, not to actions taken by U.S. military personnel.). Therefore, because the most probative evidence of record is against a finding that the Veteran has a qualifying stressor, the claim of entitlement to service connection for PTSD must be denied. The Board notes that although the claim for service connection for PTSD is being denied, the Veteran is in receipt of a 50 percent evaluation for an acquired psychiatric disorder, other than PTSD, to include persistent depressive disorder and bipolar disorder. Should the Veteran wish to continue to pursue entitlement to PTSD, the Board notes that this decision does not preclude him from filing a new claim and submitting additional evidence. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, 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.