Citation Nr: 21007670 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 19-18 576 DATE: February 10, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. Service connection for hypertension (HTN), to include as secondary to diabetes mellitus, type II (DM) and PTSD, is denied. FINDINGS OF FACT 1. An acquired psychiatric disability was not present in service or for years thereafter, and is not etiologically related to service. 2. HTN was not present in service or for years thereafter, and is not etiologically related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309 (2019). 2. The criteria for service connection for HTN have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1131, 1137, 1153 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1960 to June 1964. The Veteran testified before a Veterans Law Judge (VLJ) in an October 2019 Video Conference hearing. A transcript of the hearing is of record. In May 2020, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Service Connection 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. 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). Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) [i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)]; a link, established by medical evidence, between the veteran's 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) (2019). The Board recognizes that the Veterans Benefits Administration is now required to apply concepts and principles set forth in DSM-5; however, the Secretary of VA has specifically indicated that DSM-IV is still to be applied by the Board for claims pending before it. 79 Fed. Reg. 45094 (Aug. 4, 2014).) In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was 'engaged in combat with the enemy.' See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and 'consistent with the circumstances, conditions, or hardships of such service.' 38 U.S.C.A. § 1154 (b); 38 C.F.R. § 3.304 (d),(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154 (b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Even without combat participation, if the Veteran's claimed stressor is related to 'fear of hostile military or terrorist activity,' and a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and the 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 the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3) (2019). 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) (2019). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2018); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including hypertension, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Service connection for an acquired psychiatric disorder, to include PTSD The Veteran contends that he has a current psychiatric disorder, including PTSD, related to traumatic events and major accident and injuries, including deaths, he witnessed while working as a photographer during active duty in the Navy. He specifically reports that he photographed the bodies of a soldier who died in an automobile accident and a mechanic who was crushed by a hangar door at the Naval Air Test Center in June 1961. He does not know the name of either victim. See May 2014 statement in support of claim for PTSD. Service treatment records do not contain evidence of a psychiatric disorder during active duty or at discharge. The post-service medical evidence of record dated many years after discharge, shows the Veteran has been diagnosed with PTSD. See July 2014 treatment records from the Macomb County Vet Centr, July 2019 PTSD Disability Benefits Questionnaire (DBQ), January 2020 statement from private provider, G.T., PhD, and August 2020 VA PTSD examination. The Veteran’s treating social worker at the Macomb County Vet Center and the August 2020 VA examiner both opined that the Veteran’s currently diagnosed PTSD is related to his reported stressful experiences in service. However, the Board notes that the Veteran’s reported in-service stressors have never been verified. See May 2019 response from DPRIS indicating that a search of the 1942-1998 command history for the Naval Air Station, Patuxent River, Maryland does not list any casualties in 1961. In addition, a May 2019 statement from a representative at Navy Casualty indicates that they are not able to provide information without the name of the deceased. There is no other evidence of record verifying the Veteran’s reported stressors. Without a corroborated stressor, the criteria for service connection for PTSD are not met and the claim must be denied. For the reasons and basis stated above, the Board finds that service connection for an acquired psychiatric disability is not warranted. In reaching this decision, the Board has considered benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 2. Service connection for HTN, to include as secondary to DM and PTSD The Veteran does not contend, and the evidence does not show that his HTN is directly related to his active military service. Rather, he has stated that he believes his currently diagnosed HTN is directly related to his currently diagnosed diabetes mellitus, type II (DM), which he believes is related to his active military service. See June 2014 notice of disagreement (NOD). G. T., PhD., in the aforementioned January 2020 statement has also linked the Veteran’s HTN to his currently diagnosed PTSD. However, the Board notes that service connection is not currently in effect for DM or PTSD. As such, secondary service connection for HTN is not warranted. See 38 C.F.R. § 3.310 (2019). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.