Citation Nr: 21006843 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 13-19 703 DATE: February 5, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety and depression, is denied. Entitlement to service connection for residuals of Bell’s palsy, to include as secondary to an acquired psychiatric disability, is denied. FINDINGS OF FACT 1. The record does not contain competent medical evidence establishing a diagnosis of PTSD based on an in-service traumatic event or stressor. 2. An acquired psychiatric disorder, to include PTSD, was not documented during active duty service or a period of active duty for training, nor was a psychosis shown within one year of separation from service, and the weight of the evidence is against finding a nexus between a post-service diagnosis of any psychiatric disorder and service. 3. Bell’s palsy did not have onset in service, nor is it related to any aspect of service, nor is it shown to be secondary to a service-connected disability. CONCLUSIONS OF LAW 1. 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. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for Bell’s palsy have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1976 to October 1976. The Veteran cancelled a videoconference hearing that was scheduled for March 2016. In November 2016 and December 2018, the Board remanded the appeal for further development, which has been completed. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including psychosis, sensorineural hearing loss, an organic disease of the nervous system and arthritis, 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, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). 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). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Certain evidentiary presumptions - such as the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist Veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the veteran’s service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). 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.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD. 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). The Veteran does not allege that he engaged in combat or that his stressors to support a diagnosis of PTSD are combat-related. Rather, he claims that one drill instructor beat him badly in the face, head, and stomach; and thrusted his knee in the middle of the Veteran’s back. The Veteran complained about the drill instructor, who was disciplined. Other drill instructors retaliated against the Veteran for complaining, and the whole platoon attacked him. During an August 2010 VA mental health evaluation, the Veteran reported experiencing a number of traumatic events in active service-including recovering bodies from a swamp, the death of 87 soldiers, and a shooting rampage from a soldier. He also recalled being brutalized by other soldiers. In March 2011, the Veteran reported that one drill instructor marched recruits into a swamp; and recruits died. The Veteran was assigned to pull the dead bodies out of the swamp, and there were little crabs eating at the skin of the dead soldiers; the smell was awful. In August 2011, the Veteran described another incident that occurred during grenade training, when another drill instructor and a private blew up right next to the Veteran. The private pulled the pin and held onto the grenade; the drill instructor tried to get the private to throw the grenade, but it was too late. The blast was really strong, and the Veteran fell backwards and hit the wall. There was much blood everywhere. The Veteran’s service personnel records showed that prior to service, in May 1976, the Veteran was arrested for simple assault. The Veteran failed to disclose the conviction by civil authorities for assaulting his spouse and he was discharged for fraudulent enlistment, under honorable conditions. Service treatment records for his limited period of service are entirely negative for complaints, treatment or diagnosis of a psychiatric disorder. Neither the service treatment records nor personnel records reference the claimed Veteran’s stressors. Moreover, the service personnel records fail to document any markers indicative of any behavioral changes which might be expected of someone who experienced personal trauma. See 38 C.F.R. § 3.304(f)(5). After service, treatment records in 2007 noted a diagnosis of anxiety and depression with positive depression screens in 2014, and continued his mental health treatment in 2016. PTSD screens were negative and there is no evidence of a diagnosis of PTSD that meets the DSM criteria. On psychological evaluation in connection with disability benefits from the Social Security Administration (SSA) in October 2007, the Veteran reported a diagnosis of Bell’s palsy in October 2006. Veteran stated that he was in the military for four years. The Veteran did not report any trauma during service at the time of the examination. On VA examination in July 2018, following an examination of the Veteran and a review of the claims file, the examiner concluded that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria. The examiner noted a history of arrests and incarceration for assault prior to and after service. The examiner further found that the Veteran’s symptoms did not meet the threshold of a psychiatric disorder at that time. In an addendum opinion report in October 2019, the VA examiner noted diagnoses of anxiety and/or depression starting in 2007. However, there was no medical evidence that he experienced anxiety or depressed mood in the 31 years between the first mental health treatment note and the end of his military service. The examiner noted that while the Veteran’s former spouse in 2016 indicated that she noticed changes in his behavior after his discharge from the basic training, specifically stating he became abusive, the examiner noted that the Veteran was arrested for simple assault prior to service and was discharged for fraudulent enlistment, which called into question the veracity of his former spouse’s statement. Additionally, while symptoms of anger, irritability, and abusive behaviors likely existed prior to service, there was no evidence that his anxiety and depression pre-existed service. There was no evidence to support a connection of the complaints, diagnoses and treatment after 2007, and the Veteran’s military service during the months he was in basic training. Therefore, it was less likely than not that anxiety and depression initially noted years after service, were incurred in, caused by, secondary to, or exacerbated by his military service in basic training. Additionally, the Veteran’s reported stressors had not been substantiated, nor were they consistent with the conditions of military basic training. The Board notes that VA attempted to verify the reported in-service stressors; however, since the Veteran failed to provide any dates, names, or additional specificity, the claimed stressors could not be verified due to insufficient information. The RO determined in a December 2011 VA Memorandum, that the information required to corroborate the claimed stressful events was insufficient to send to the Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. In other words, it would be futile to ask for stressor corroboration because the information as it stood, including the Veteran’s personnel file, was insufficient to allow for further meaningful research. The Board agrees with this assigment. The Veteran’s recollection of events seems unclear, with citation to numerous issues that are not always consistent with prior statements. 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). 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. While in witness statement in 2016 the Veteran’s former spouse reported that the Veteran initially became angry, irritable and abusive after service due to having endured beatings in service, clearly the Veteran had a history of abuse prior to service. While a fellow servicemember in 2016 reported being stationed in South Carolina from 1974 to 1976, and recalled hearing about a marine drill instructor and recruit being blown up by a grenade, it is not clear when this happened, who was involved in the incident or whether the Veteran was anywhere near the incident when it happened. The evidence has not shown that the Veteran was present where an explosion took place, or any other location where he would have been subjected to hostile military or terrorist activity. In sum, no corroborating evidence has been able to be found in support of his contentions. The statements are very unclear. In any event, as the lay statements alone are not sufficient to verify his claimed stressors, and he has not provided sufficient information to permit the verification of such stressors. Moreau, 9 Vet. App. at 395-396; Dizoglio, 9 Vet. App. at 166. The Board has considered statements from the Veteran asserting that he has PTSD. While the Veteran is competent to report his mental health symptoms, he has not been shown to be competent to diagnose a psychiatric disorder. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In a claim of service connection for PTSD, there is a specific legal requirement for a diagnosis, which requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125, that is, a diagnosis that conforms to the DSM. 38 C.F.R. § 3.304. Thus, the diagnosis of PTSD is a complex medical question and the Veteran has not been shown to possess the requisite expertise or knowledge to diagnose it. In light of the absence of a diagnosis of PTSD in accordance with DSM and sufficient information to permit the verification of the claimed stressors, the claim for PTSD must be denied. 38 C.F.R. § 3.304(f). Concerning an acquired psychiatric disorder other than PTSD, the record contains a diagnosis of anxiety disorder and depression. The Board finds that the weight of the probative evidence of record does not link any diagnosed psychiatric disorders to service. The Board finds that service connection is not warranted for any acquired psychiatric disorder, as the preponderance of the competent and credible evidence does not link any diagnosed psychiatric disorder with service. Significantly, the VA examiner opined that his depression and anxiety was less likely than not due to service. There is no competent medical evidence that contradicts the VA examiner’s findings. More importantly, the service and post-service medical records clearly provide evidence against the claim that the Board can not ignore, indicating a problem that is simply not related to the Veteran’s service more than 30 years ago. 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; Gilbert, 1 Vet. App. at 55-57. 2. Entitlement to service connection for residuals of Bell’s palsy The Veteran contends that service connection is warranted for Bell’s palsy. The Veteran and his former spouse have asserted that the condition developed due to facial injuries incurred when the Veteran was beaten in service. Initially, as noted above, there is no evidence in the service records, or any other evidence contemporaneous with service or until more than three decades after service, to corroborate that the Veteran was beaten in service and incurred facial injury. The service treatment records for the Veteran’s limited service contain no complaints, history or findings consistent with Bell’s palsy or facial injuries. After service, VA treatment records after 2006 noted a diagnosis and treatment for Bell’s palsy. Thus, a chronic disorder was not shown in service or within one year following discharge from service. The Board notes that the first documented evidence of Bell’s palsy is several decades after the Veteran’s discharge from service. In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service and post-service treatment records. Thus, the Veteran has not adequately shown that his present complaints of Bell’s palsy continued since service. Accordingly, competent evidence linking the current claimed disorders to service is needed to substantiate the claim. On VA examination in July 2018, the Veteran reported that he was diagnosed with Bell’s Palsy in 2006, after he experienced drooping of his face on the right side and facial paralysis with facial pain and inability to close his eyes. He was hospitalized briefly and treated with medications. The symptoms remained about 4-6 weeks and resolved. The symptoms returned and affected the left side of his face. He had drooping of the left side of the face, facial pain, and trouble closing his eye on the left side. He was hospitalized a second time and treated with medications, but he did not fully recover. Following a review of the claims file and an examination of the Veteran, the examiner opined that the Veteran’s Bell’s Palsy was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that Bell’s palsy was the medical name given to palsy of the trigeminal nerve that resulted from inflammation around the facial nerve. The exact cause of the inflammation was unknown, but possible contributing factors included genetic predisposition, viral infection and ischemia of the facial nerve. To the extent that the condition was being claimed as a result of being beaten in service, the examiner noted that there was no documentation in the service records of an assault involving the Veteran’s face or of injury to the face. The Board finds the VA examiner’s opinion to be highly probative. The 2018 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. Moreover, the examiner provided adequate rationale for the opinion. Accordingly, the VA examiner’s opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Significantly, there is no competent medical opinion of record linking the current disability to service. The Board has considered the statements from the Veteran and his former spouse asserting that his Bell’s palsy was due to service. The Veteran and his former spouse are certainly competent to report as to the observable symptoms they experience and their history, but he cannot diagnose because of the medically complex nature of such diagnoses. Layno v. Brown, 6 Vet. App. 465 (1994); See Jandreau, 492 F.3d at 1377. The ultimate questions in this case are related to internal medical processes which extend beyond an immediately observable cause and effect relationship. Id. The Board finds that the specific, reasoned opinion of the VA examiner of greater probative weight than the more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which she relied to form the opinion, and the examiner provided rationale for the conclusions reached. As noted, there is no competent medical evidence that supports the claim. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claim. In summary, there is no competent evidence of Bell’s palsy in service or within one year following discharge from service. Thus, the provisions regarding continuity of symptomatology are not applicable. See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Moreover, the most probative and persuasive evidence is against a finding that his current Bell’s palsy is related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. To the extent the Veteran claims he developed Bell’s palsy as secondary to a psychiatric disorder, as service connection for a psychiatric disorder has not been established, there is no legal basis upon which to award service connection for Bell’s palsy on a secondary basis. 38 C.F.R. § 3.310. (Continued on the next page)   In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for service connection for Bell’s palsy. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); See Gilbert, 1 Vet. App. at 54. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.