Citation Nr: 21005692 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-32 315 DATE: February 2, 2021 ORDER Entitlement to service connection for an acquired psychiatric condition, to include post-traumatic stress disorder (PTSD) and depression, is denied. FINDINGS OF FACT 1. The Veteran did not participate in combat, was not a prisoner-of-war, and PTSD was not diagnosed during service; and there has been no verification or corroboration of the Veteran’s inservice stressors. 2. An acquired psychiatric disorder, to include PTSD and depression, has not been shown to have manifested in service, within one year of service, or otherwise be related to service. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disorder, including PTSD and depression, 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 September 1969 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision from the Department of Veterans (VA) Regional Office (RO). In June 2018 the Board remanded the Veteran’s claim for further development. The required development has been completed and the matter is properly before the Board at this time. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has withdrawn his Board hearing request. See Statement in Support of Claim from September 2017. Lastly, a claim for service connection for a psychiatric disability is deemed to encompass all psychiatric diagnoses reasonably presented in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Pursuant to Clemons, the Board has expanded the service connection claim for PTSD as reflected on the title page of this decision. Entitlement to Service Connection for an Acquired Psychiatric Condition The Veteran contends that his acquired psychiatric disorder, to include PTSD and depression, is related to military stressors that occurred during his active duty service in Germany nearly 50 years ago. In order to establish service connection for a claimed disorder, the following must be shown: (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). Service connection for certain chronic diseases, including psychosis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Alternatively, when a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be “shown in service,” the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). However, if a condition is not noted during service, then generally a showing of continuity of symptomatology after service is required for service connection, if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). As an initial matter, the Board finds that the Veteran has a current diagnosis of PTSD and depression. See VA treatment records and September 2020 VA Examination. In support of his current diagnosis of PTSD and depression, the Board notes that the Veteran has alleged several in-service stressors that have not been consistent throughout this appeal, greatly reducing the credibility of the Veteran as an historian of his service and consequently limiting the probative value of his statements from events nearly 50 years ago. During his private mental health examinations in May 2000 and October 2012, the Veteran reported that when he was stationed in Germany, he lost a friend who committed suicide in the barracks and another friend who got hit with a tire rim off a wheel and died. See private treatment examinations from May 2000 conducted by Dr. R.M. and from October 2012 conducted by Dr. E.B. Additionally, during the May 2000 private examination, Dr. R.M. reported the Veteran did not like to talk about Vietnam, he became nervous around people who talked about Vietnam, and that the Veteran stated he had problems with his knees because of “combat related injuries.” The examiner reported the Veteran “seemed to be very reluctant to go back into the traumatic event of combat in Vietnam.” However, the Board notes there is no record of the Veteran serving in combat or in the Republic of Vietnam at any time during his military service. Likewise, during the Veteran’s September 2020 VA Examination, the Veteran indicated several stressor events in support of his PTSD symptoms. Here, the Veteran again reported he lost a friend who committed suicide in the barracks. However, the Veteran also reported for the first time during the appeal that his platoon sergeant was killed in a car wreck after drinking and driving and that he also found out another friend was killed crossing the street in Frankfurt. The Veteran made no mention of his friend who died after being struck by a tire rim during the September 2020 VA examination. Tellingly, the Veteran’s service treatment records and personnel records fail to support his contentions. The RO sent the Veteran letters dated December 11, 2012, February 25, 2014 and September 24, 2019, asking him to provide specific information concerning the stressful event(s) he experienced during military service. The Veteran was asked for specific dates and names, his unit, the geographic location where the event(s) took place, the names (first and last) of any individuals wounded or killed, and a description of the incident. The Veteran was also notified that without this information, the RO could not verify the stressor incidents with the U.S. Army and Joint Services Records Research Center (JSRRC). As of the date of this decision, no information has been received from the Veteran to corroborate his stressor events. A VA Memorandum from the Alternate JSRRC Coordinator dated June 20, 2014 made a formal finding of a lack of information required to corroborate stressors(s) associated with the Veteran’s claim for service connection for PTSD. The findings of the JSRRC Coordinator were: (1) the information required to corroborate the stressful events described by the veteran is insufficient to send to the U. S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of National Archives and Records Administration (NARA) records; (2) all procedures to obtain this information from the Veteran have been properly followed and all efforts to obtain the needed information have been exhausted stating that any further attempts would be futile; (3) efforts made in order to obtain the information necessary to corroborate stressful events for the PTSD claim included letters dated December 11, 2012 and February 25, 2014; and (4) the Veteran’s personnel records do not provide sufficient detail to confirm any stated stressor. Importantly, neither the service treatment records, nor personnel records, reference the claimed Veteran’s stressors and the Board finds the Veteran’s statements lack credibility for the reasons stated above. Thus, the uncorroborated statements made by the Veteran, with no combat service, and without evidence of fear of hostile military or terrorist activity during service, hold little probative value in the present claim and are insufficient, by themselves, to substantiate his claim for PTSD in the instant case. The Veteran’s service treatment records contain no complaints, history, diagnosis or findings consistent with a psychiatric disability. On separation from service in April 1972, nearly 50 years ago, the Veteran reported he had drug abuse problems, but the examiner reported there was no evidence of recent use at that time. In a May 2000 post-service private psychiatric record, a private psychologist with the initials of R.M. noted that the Veteran was seeking evaluation for PTSD. The Veteran reported that he suffered a great deal of distress and trauma related to incidents that occurred during his active service. Dr. R.M. provided a diagnosis of PTSD related to his combat experiences in Vietnam. As stated above, the Veteran did not serve in combat and did not have service in Vietnam. Therefore, the evaluation provided by Dr. R.M. is neither credible nor does it have any probative value in the present claim. In another private medical record dated October 2012, a private psychologist with the initials of E.B. stated that the Veteran had diagnoses of PTSD, generalized anxiety disorder and major depressive disorder related to his service. Dr. E.B. further stated that the Veteran’s generalized anxiety disorder and major depressive disorder stemmed from his PTSD. The record does not reflect that Dr. E.B. provided a rationale as to why the Veteran’s psychiatric disorders were related to his active service. To the extent that Dr. E.B. opined that the Veteran’s PTSD began in service, as noted, the service and post-service treatment records do not support this contention and the examiner provided no rationale in support of the opinion. Therefore, the evaluation made by Dr. E.B. is of little probative value in support of the Veteran’s contention that his PTSD began in service. In September 2012, a VA clinician noted that the Veteran had a positive screen for depression during a routine visit. A September 2013 VA mental health consultation note indicated the Veteran had positive alcohol dependency, persistent bad dreams, social phobia, depression, sleeping problems, anger problems, and suicidal ideations, but that he denied any plan or intent. Tellingly, the Veteran reported that these symptoms began in 2010 when he retired from his job and was diagnosed with prostate cancer. In August 2014, a VA clinician noted the Veteran had a positive screen for PTSD and depression during his annual visit and the Veteran reported thinking about suicide every night. The Veteran was walked over to the mental health clinic where he was seen by a VA mental health provider at that time. In the August 2014 VA mental health evaluation, the Veteran reported depressed mood and difficulty coping with past trauma experienced while in the military, including witnessing multiple deaths. Specifically, during the examination the Veteran reported that while serving in the military he found his good friend dead after he had hung himself in a bunk next to where the Veteran slept, and that another close friend was struck by a car and killed right next to him. The examiner opined that the Veteran’s symptoms of depression and anxiety have impaired current functioning and his symptoms were likely affected by past experience of trauma. Again, while some of the reports of stressor events have remained similar in structure, the details provided by the Veteran have been general and non-specific in nature and at times inconsistent with his prior reports, which reduce their probative value in this case. A detailed review of the Veteran’s statements, overall, indicate that the Veteran is not an accurate historian. In September 2014 a VA staff psychiatrist diagnosed the Veteran with major depressive disorder with possible PTSD. Further VA treatment records after 2014 document diagnoses of depression, PTSD and in limited cases, alcohol abuse. On VA examination in August 2020, the Veteran reported several in-service stressors while stationed in Germany. The first stressor he reported was when he was informed that a close friend had committed suicide in the barracks. As to the second stressor reported by the Veteran, which was not mentioned at any point prior to this date in the record, the Veteran reported his platoon sergeant in Germany was drunk and driving in the mountains when he was killed in a car accident. The Veteran also mentioned a third stressor event, providing different details from what he reported in the VA mental health consultation in 2014, involving his friend who was killed crossing the street in Frankfurt, Germany. This time, the Veteran reported he “found out” about his friend who was killed crossing the street, whereas, in 2014, he reported that he was standing right next to his friend when he died. Tellingly, the Veteran did not mention his friend who was killed by an exploding tire rim during this examination. Based on clinical data obtained from the examination, coupled with a review of the Veteran’s medical records and lay statements, the examiner provided a DSM 5 diagnosis of PTSD. Importantly, the examiner noted that his major depressive disorder and generalized anxiety were not separate diagnoses because the Veteran’s symptoms of those diseases were part of his primary diagnosis of PTSD. Although the Veteran’s reported psychiatric symptoms met the DSM 5 criteria for a diagnosis of PTSD, the examiner opined that the claimed condition of PTSD was less likely than not incurred in or caused by the claimed in-service events. After a detailed review of the Veteran’s record, including all medical and lay evidence, 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). In this case, 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 not supported by any corroborating evidence of record and, to a degree, refuted by his own statements in certain accounts of record. Specifically, in September 2013, the Veteran reported that his symptoms of PTSD and depression began in 2010, after he retired and was diagnosed with prostate cancer, rather than beginning in service. Again, no corroborating evidence has been found in support of his contentions that his PTSD is related to service and the Veteran’s lay statements alone are not sufficient to verify his claimed stressors. Tellingly, he has not provided sufficient information to permit the verification of such and therefore the claim for PTSD must be denied. Moreau, 9 Vet. App. at 395-396; Dizoglio, 9 Vet. App. at 166. To the extent that the record may contain a diagnosis of PTSD based on the in-service reported stressor, such a diagnosis is based on the Veteran’s unsupported history of alleged stressor events that have not been confirmed and have, in many cases, been refuted (combat service in Vietnam). A medical opinion premised upon an unsubstantiated account is of no probative value and does not serve to verify the occurrences described. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); see also Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996) (an opinion by a mental health professional based on a post-service examination of the Veteran cannot be used to establish the occurrence of a stressor). The Board cannot ignore the service records, medical evidence and lay statements, which provide, overall, significant evidence against the Veteran’s recollections of events from more than 50 years ago. With regard to service connection for a psychiatric disorder, other than PTSD, it is acknowledged that no psychiatric disability was diagnosed during service. Treatment records after 2011 document a diagnosis of major depressive disorder and in limited cases, alcohol abuse, and generalized anxiety disorder. However, said disabilities were diagnosed well after the Veteran’s separation from service. A diagnosis of depressive and anxiety disorder was first recorded in 2012, more than 40 years after discharge from service, and there is no indication that these conditions had onset during or within one year of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Here, none of the Veteran’s medical providers have related his depressive disorder to his service or any other aspect of his military service, other than using the reported unverifiable in-service stressors, which have not been confirmed. Significantly, as discussed above, the VA examiner in September 2020 opined that the Veteran’s PTSD was less likely than not incurred in or caused by the claimed in-service events. The Board finds the VA examiner’s opinion to be highly probative. The opinion was based on a thorough review of the claims file, including the service treatment records and examination of the Veteran, and the opinion is consistent with other evidence of record. Simply stated, both service and post-service medical records, as well as the best medical opinion in this case, provide evidence, overall, against this claim indicating a problem that began many years after service with no connection to service. The Veteran contends that his psychiatric disorder is etiologically related to service. However, unlike disabilities that may be observable as to both their incurrence and their cause, the cause of a psychiatric disability is not readily apparent to lay observation. Indeed, psychiatric diagnoses are generally the province of medical professionals. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). In sum, a psychiatric disorder was not shown in service or for many years thereafter, and the most probative evidence is against a finding that the Veteran has a diagnosed psychiatric disorder that is causally related to service. Accordingly, the preponderance of the evidence is against the claim, and it is denied. 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 an acquired psychiatric disorder to include PTSD, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.