Citation Nr: 21072623 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-46 156A DATE: December 3, 2021 ORDER The appeal to reopen the claim for entitlement to service connection for an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for PTSD is denied. REMAND Entitlement to service connection for an acquired psychiatric disability, other than PTSD, is remanded. FINDINGS OF FACT 1. The evidence associated with the claims file since the March 2010 final denial includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disability other than PTSD. 2. The Veteran's alleged in-service stressors cannot be independently corroborated. CONCLUSIONS OF LAW 1. The criteria for reopening of the claim for entitlement to service connection for an acquired psychiatric disability, other than PTSD, are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 19.20, 19.21, 19.52(a). 2. The criteria for entitlement to service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1970 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A Board hearing was conducted via the virtual hearing process. A transcript of this hearing is contained within the electronic claims file. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Veteran proffers four in-service incidents that caused his current psychiatric disabilities: (1) his witnessing a fellow servicemember die aboard the U.S.S. Midway, (2) his general duties aboard the U.S.S. Midway as part of the "crash and salvage division," (3) that the U.S.S. Midway's bow had cracked, and (4) that the "local government" back home was "beating down [his] family." July 9, 2021, Hearing Transcript (Tr.) at 45; May 9, 2015, Correspondence. New and Material Evidence VA may reopen a claim that previously has been denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers, and material evidence is evidence that, by itself, or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). 38 C.F.R. § 3.156(a) must be read as creating a low threshold, which suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 11718 (2010). Furthermore, evidence as to each previously unproven element of a claim is not required for the claim to be reopened. Id. at 121. Lay testimony "should not be rejected as not being material solely because [a claimant] is a lay person offering observations as to [a particular] condition...." Id. at 122 (citing Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009)). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence generally is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). "Justus does not require the Secretary to consider the patently incredible to be credible. Moreover, any presumption of credibility required by Justus... is inapplicable... when the claim is adjudicated de novo by evaluating both the weight and credibility of all the evidence of record." Duran v. Brown, 7 Vet. App. 216, 22021 (1994). A new etiological theory of entitlement, on its own, cannot be the basis to reopen a claim under 38 U.S.C. § 7104(b); however, if VA receives evidence supporting a new theory of entitlement that constitutes new and material evidence, then it must reopen the claim under 38 U.S.C. § 5108. Boggs v. Peake, 520 F.3d 1330, 133637 (Fed. Cir. 2008). Regardless of any RO determinations that new and material evidence has been submitted to reopen a previously denied claim, the Board still must review whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The agency of original jurisdiction (AOJ) construed the Veteran's current claim for PTSD as one for only that condition. In adjudicating and analyzing the Veteran's claim, however, the Board has a responsibility to construe it as one for any psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 45 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). The Veteran originally filed in January 2010 for service connection for depression. That claim was denied by a March 2010 Rating Decision. At the time of the denial, the evidence of record consisted of service treatment records (STRs) and VA medical center (VAMC) records through January 2010. The Veteran was denied benefits because there was no evidence of any in-service mental health disability. Since that denial, however, there has been a wealth of evidence added to the claims file: updated VAMC records, statements from the Veteran, a psychiatric examination by a private providers, and the Veteran's live testimony. All this evidence is new and material. It previously has not been considered by VA adjudicators, and speaks to facts previously unestablished by the Veteran's prior claim. Thus, the Board finds that reopening of this claim is warranted. See 38 C.F.R. § 3.156(a). Service Connection For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. To establish entitlement to service connection for PTSD, there must be: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a), which requires a diagnosis in accordance with the Diagnostic and Statistical Manual, Fifth Edition (DSM-5); (2) credible supporting evidence that the claimed, in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). With respect to the second element, where the claimed stressor is unrelated to combat, lay testimony alone generally is not sufficient to establish that an in-service stressor occurred; it must be corroborated by credible supporting, evidence. Cohen v. Brown, 10 Vet. App. 128, 142 (1997). Lay testimony alone may be sufficient where (1) a veteran was diagnosed with PTSD during service with a stressor related to that service; (2) a veteran qualifies as a combat veteran under 38 U.S.C. § 1154 with a stressor related to that service; (3) there exists a stressor related to fear of hostile military or terrorist activity; and (4) where the veteran was a prisoner of war under 38 C.F.R. § 3.1(y) with a stressor related to that prisoner-of-war experience. 38 C.F.R. § 3.304(f)(1)(4). Despite the Board's obligation to construe broadly the Veteran's PTSD claim to encompass one for any psychiatric disability, it still is mindful that PTSD and all other psychiatric disabilities require different standards to obtain service connection. "If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 84344 (1984) (footnote omitted). Here, Congress has delegated to VA broad rule-making authority for regulations covering "the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under [VA compensation] laws." 38 U.S.C. § 501(a)(1). Congress also has not enacted any legislation prescribing the requirements for a claim of PTSD, and VA's regulation prescribing different evidentiary standards for PTSD and non-PTSD psychiatric disabilities is not arbitrary, capricious, or manifestly contrary to the authorizing statute. Compare 38 C.F.R. § 3.304(f) (requirements for service connection for PTSD), with 38 C.F.R. § 3.303(a) (requirements for service connection generally). Thus, the Board must analyze separately PTSD and any other non-PTSD diagnoses. STRs do not show any complaints of, treatment for, or diagnosis of any psychiatric condition. The Veteran's May 1971 separation examination revealed normal psychiatric findings upon clinical evaluation. Post-service February 2009 VAMC records show that the Veteran was diagnosed with PTSD and depression. He reported that he first began feeling depressed around 1999 and that it has continued to this day. In March 2009, the Veteran submitted a printout from the Department of the Navy, detailing some of the history of the U.S.S. Midway. In a March 2015 correspondence, the Veteran first reported the incident regarding the death of his fellow servicemember. According to the Veteran, the fellow service memberRobert Doucettewas killed when an airplane wheel chalk struck him in the head. He reports becoming sad and depressed over this incident, ultimately applying for a transfer to shore duty, which subsequently was denied. This incident is alleged to have occurred about March or April of 1971. This statement also contained the Veteran's allegations that, "because of family problems," his "mother, brother, and sister were being beat up by the local police." He continued by stating that his mother and sister eventually were placed in jail while he was in active duty. In a May 2015 correspondence, the Veteran detailed his duties as part of "Crash & Rescue." There, he allegedly was responsible for rescuing the pilots once they landed a defective plane. Dressed in a fireproof suit, he would spray down planes (sometimes carrying bombs) and rescue the pilots from the cockpits. When not actively rescuing pilots, the Veteran was required to sit on the back of firetruck hanging over the side of the ship. This very frequently frightened him. Of record is a September 2015 PTSD disability benefits questionnaire (DBQ) completed by the Veteran's private psychologistDr. L.B. She believes that the Veteran's "PTSD with anxiety and depression . . . is more likely than not . . . related to his military service in the US Navy, and the constant fear of his life." In September 2016, the AOJ conducted research on the Veteran's first alleged stressor. It revealed that there was a "[REDACTED]," Petty Officer Second Class in the U.S. Navy, who died on May [REDACTED], 1970, in Vinh Binh, Vietnam, at the age of twenty-three; the reasons listed for death was "other accident." The research also reveals that the Mr. [REDACTED] was Caucasian. The Veteran's subsequent October 2016 VA Form 21-0781 indicates that his referenced friend and fellow servicememberthis time referred to as "E-2[REDACTED]"was "[African] American." On his October 2018 VA Form 9, the Veteran expanded the possible date range for stressor (1) to JanuaryMay 1971. In October 2020, the AOJ associated with the Veteran's claims file the U.S.S. Midway's logbooks from November 1970 through the very end of April 1971. While they document numerous injuries for a variety of servicemembers, there is no reported injury with an individual whose name closely resembles that of the Veteran's friend or any deaths. At his hearing, the Veteran testified that, at the time of stressor (1), he was eighteen, and his friend was "a lot older." Tr. at 4. His friend was "like a mentor," and "took [the Veteran] under his wing." Id. The Veteran testified that he called his friend "[REDACTED]" because that is what he "thought his name was" because "that's what everybody called him." Id. Therefore, he never questioned his friend's name. The Board concedes that the medical evidence of record verifies that the Veteran has been diagnosed and treated for PTSD. Thus, the first element of service connection for PTSD has been established. See 38 C.F.R. § 3.304(f). Turning to the second element, the Board will address in turn each alleged stressor. Stressor (1)Witnessing the Death of a Fellow Servicemember Because this stressor is unrelated to combat, or to fear of hostile or terrorist activity, lay testimony is not sufficient to establish the incident; the Veteran is required to point to credible, support evidence. See Cohen, 10 Vet. App. at 142. There is no evidence, aside from the Veteran's own testimony, that a fellow servicemember died aboard the U.S.S. Midway while he served aboard that vessel. The logbooks document a plethora of injuries from November 1970April 1971, including some of a similar nature that the Veteran describes (a servicemember being struck in the head with an aircraft's wheel chock), but those incidents neither were sustained by anyone named anything even remotely close to "[REDACTED]" nor resulted in a fatality. The injuries that were recorded span from the minorsmall lacerations on one's thumbto the very severehead trauma requiring helicopter transportation to a Navy hospital (the incident noted above)and everything in between (burns, twisted ankles, lacerations of the head, low-back injuries, etc.). Because the logbooks do not corroborate the Veteran's recitation of events, this stressor cannot serve as the basis for service connection for PTSD. Stressors (2) and (3)General Duties and a Crack in the U.S.S. Midway's Bow The Veteran is competent to report his occupation during service and his general duties under that occupation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). His recitation that he sat on firetruck, which frequently was placed on the side of a ship, creating the feeling that he was going to fall off, however, requires independent verification. This also is true of his report that the U.S.S. Midway's bow cracked. There is no evidence in the record to support those events, and his own lay statements are not enough to serve as the second element for a claim for PTSD. See Cohen, 10 Vet. App. at 142; 38 C.F.R. § 3.304(f). Stressor (4)Family Problems Back Home Even though this stressorlike all otherslacks independent verification, it also lacks any connection to service. A verified stressor must be "in-service." 38 C.F.R. § 3.304(f). While the Veteran's assertions that his direct family was mistreated by local law enforcement back home may be true, it has no connection to his military service. Thus, that also cannot serve as the basis for a claim for PTSD. Because there is no verified, in-service stressor, the Veteran's claim for service connection for PTSD must be denied. See 38 C.F.R. § 3.304(f). REASONS FOR REMAND Unlike a claim for PTSD, other psychiatric disabilities must satisfy the basic requirements for service connection under 38 C.F.R. § 3.303(a). Under that standard, lay evidence can be enough to satisfy the second element of service connection. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained, there are four factors that must be met: (1) whether there is competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is insufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4). The Veteran has non-PTSD psychiatric disabilities, and he is competent to report the above stressors. It is true that, "in non-PTSD cases, a physician's opinion can sometimes provide evidence both of service incurrence or aggravation and of a causal nexus between a current condition and service." Moreau v. Brown, 9 Vet. App. 389, 397 (1996). Dr. L.B.'s opinion, while it at least indicates a connection between the Veteran's military service and his psychiatric disabilities, is not adequate to grant service connection, as it states an overarching conclusion devoid of any supporting rationale or discussion. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) (citations omitted) (discussing various factors to consider when determining whether a medical opinion is adequate). Thus, the Board finds that the McLendon factors have been met, entitling the Veteran to a VA examination for this claim. See 20 Vet. App. at 81. Thus, remand is warranted to secure a medical examination and opinion for the Veteran's non-PTSD psychiatric disabilities. The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Send to the Veteran the necessary forms to identify any private psychiatric treatment he has received and afford him the opportunity to complete and submit those forms. VA also must send the Veteran forms necessary to authorize VA to obtain these records on her behalf. If the Veteran identifies any records, then make reasonable attempts to obtain them. Such attempts must be documented in the claims file. 3. If, after reasonable attempts have been made, any identified records cannot be obtained, then notify the Veteran as such in accordance with 38 C.F.R. § 3.159(e). 4. After the above development has been completed, schedule the Veteran for a psychiatric examination. The examiner shall answer the following: (a.) List all the Veteran's psychiatric diagnoses. (b.) Is it at least as likely as not (a fifty percent probability or greater) that any of the Veteran's non-PTSD diagnoses occurred in, or is the result of, his period of active duty service, to include his allegations of witnessing a fellow servicemember die, his general duties during service, and hearing that the U.S.S. Midway's bow cracked? Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 5. Conduct any other development deemed necessary and then readjudicate the Veteran's claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.