Citation Nr: 21009071 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 18-38 340 DATE: February 18, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran had an acquired psychiatric disability, to include PTSD, at any time during or approximate to the pendency of the claim. 2. Even assuming a diagnosed psychiatric disability, the Board finds the Veteran’s assertions and testimony as to an in-service stressor not credible. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1986 until his honorable discharge in April 1989. This appeal has been advanced on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from a December 2017 rating decision by the Buffalo, New York, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied the Veteran’s claim for service connection for an acquired psychiatric disorder, to include PTSD. In February 2020, the Veteran and his former spouse testified at a Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in Buffalo, New York. A transcript of the hearing has been associated with the record on appeal. In April 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to verify the Veteran’s presence aboard the U.S.S. Peleliu on November 22, 1987, and then readjudicate the claim as appropriate based on the developed information, which the RO accomplished. The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. §§ 1154(a); 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD is governed by 38 C.F.R. § 3.304(f), which requires: (1) medical evidence diagnosing the condition in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), see 38 C.F.R. § 4.125(a); (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) a link, established by the medical evidence, between current symptoms and the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Regarding the second PTSD element as set forth in 38 C.F.R. § 3.304(f), the evidence necessary to establish the claimed stressor varies depending on the circumstances of the stressor and the nature of a veteran’s service. A veteran’s lay testimony alone may establish the occurrence of the claimed in-service event in four instances: (1) if the evidence establishes that the veteran was diagnosed with PTSD during service and the claimed stressor is related to that service; (2) if the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat; (3) if the claimed stressor is related to a fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and the veteran’s symptoms are related to the claimed stressor; or (4) if the evidence establishes that the veteran was a prisoner-of-war under 38 C.F.R. § 3.1(y) and the claimed stressor is related to that experience. 38 C.F.R. § 3.304(f). Analysis Before directly addressing the Veteran’s claim for service connection for an acquired psychiatric disability, to include PTSD, the Board finds it necessary to address two subjects intertwined with the Board’s analysis of service connection. First, the Board will address its credibility findings as to the Veteran. Second, the Board will address VA’s duty to assist the Veteran with development of his claim. The Veteran’s Credibility The Board, as factfinder, is responsible for assessing the credibility and weight to be given to evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). When assessing the credibility of lay documentary evidence, the Board may consider factors such as facial plausibility, bias, self-interest, internal consistency, and consistency with other evidence of record. Caluza v Brown, 7 Vet. App. 498, 511 (1995); Southall-Norman v. McDonald, 28 Vet. App. 346, 355 (2016). When assessing oral testimony before the Board, the Board may consider the demeanor of the witnesses, the facial plausibility of the testimony, and the consistency of the testimony with other testimony and affidavits submitted on behalf of the veteran. Caluza, 7 Vet. App. at 511. In the Veteran’s September 2017 statement in support of claim for PTSD (September 2017 statement), he listed two separate incidents/stressors that he claimed led to his PTSD and associated symptoms, and the information he provided is as follows: 1. Date of incident: November 23, 1987 Location of incident: U.S.S. Peleliu (LHA-5), Marines/Navy amphibious maneuvers off Camp Pendleton, Northern San Diego County, California Unit assignment during incident: U.S.S. Peleliu (LHA-5), Long Beach, California, Air Department – ABFAN E-3 Dates of unit assignment: June 15, 1987 to March 13, 1989 Description of incident: Helicopter crash, one person missing. The aircraft apparently was trying to land on the ship after developing a mechanical problem shortly after takeoff. Possible engine malfunction of some kind. It came back in but not safely. 25 marines/sailors aboard the helicopter, including four crewmen. Three marines and three sailors on the flight deck were injured in the crash. One man missing, all other suffered minor injuries. 2. Date of incident: October 15, 1986 Location of incident: U.S.S. Midway (CVN-41), San Francisco, California Unit assignment during incident: U.S.S. Midway (CVN-41), Air Department – Division Dates of unit assignment: August 1986 to June 1987 Description of the incident: Severe stress caused by (team spirit exercise) prolonged sea service during Western Pacific tours of duty. Personal leave denied due to minimum staff availability. Ordered by barracks division Commander LTC [name redacted] during short, temporary assignment duty in Yokosuka, Japan; to be evaluated for possible stress by fleet recreational director. The RO developed information as to the Veteran’s claimed stressor of a helicopter crash aboard the U.S.S. Peleliu by submitting an inquiry through the Defense Personnel Records Information Retrieval System (DPRIS). The inquiry yielded information from multiple sources. First, the U.S.S. Peleliu’s 1987 command history documented that the vessel embarked off the coast of Camp Pendleton, California, for exercises during the period of November 9 to 23, 1987. Second, according to the United States Marine Corps (USMC) Yearly Chronology of the U.S.S. Peleliu (LHA-5) for 1987, on November 22, 1987, a CH-46E Sea Knight helicopter crashed into the U.S.S. Peleliu, 20 miles off the coast of California. The helicopter was participating in joint United States Navy-USMC wargames when the helicopter crashed on the deck of the vessel, with one Marine being killed and 25 other servicemen being injured. Third, according to a USMC Casualty Branch document, on November 22, 1987, one Marine assigned to the 1st Marine Division, Camp Pendleton, California, died of traumatic injuries sustained when a CH-46E Sea Knight helicopter crashed on take-off from the U.S.S. Peleliu while transporting troops for a night tactical insert. Search and rescue efforts were undertaken to recover the Marine’s body, but were unsuccessful, and he was presumed dead. The Veteran’s alleged recollection of the helicopter crash, as stated in his September 2017 statement, is significantly similar to the information developed by the RO. He listed the date of the occurrence as November 23, 1987, whereas the RO developed the incident to have occurred on November 22, 1987. He provided information that the U.S. Navy and USMC were engaged in “amphibious maneuvers off Camp Pendleton,” and the RO developed information that the U.S. Navy and USMC were engaged in wargames off the coast of Camp Pendleton, California. The Veteran reported the helicopter was trying to land on the ship after developing a mechanical problem shortly after takeoff. The RO developed information that the helicopter crashed after takeoff while transporting troops. According to the Veteran, a combination of twenty-five Marines and Sailors were aboard the helicopter. The RO was not able to develop the number of servicemembers aboard the helicopter, but it did develop that twenty-five servicemembers were injured. Finally, the Veteran reported one serviceman was missing as a result of the crash. The RO developed information that one Marine was presumed dead because search and rescue efforts yielded negative results for his body. The Veteran testified before the undersigned VLJ at a Board hearing in February 2020. His representative elicited a narrative response from the Veteran, rather than a question-and-answer exchange, about what occurred aboard the U.S.S. Peleliu. The Veteran testified that after fueling a helicopter as part his duties, the helicopter took off from the vessel. February 2020 Board Hearing Transcript, at 4. He noticed “sputtering” as it took off, and before he could return to his department, he heard the captain order search and rescue, and crash and salvage over the speaker system. Id. When questioned by the undersigned VLJ, the Veteran was unable to recall the date the crash occurred, other than to say it was late 1987. Id. at 5. He was also unable to recall what time of day the event occurred. Id. The Board does not expect a veteran to recall every aspect of military service, particularly when the event at issue occurred over thirty years ago, as in this case. But the glaring problem with the Veteran’s factual assertions is that he was never aboard the U.S.S. Peleliu in November 1987 when the helicopter crash occurred. According to the Veteran’s service personnel records, which have not been challenged as being inaccurate, he served aboard the U.S.S. Peleliu from February 1988 until April 1989. In November 1987, he was stationed at a U.S. Naval Hospital in Yokosuka, Japan. It was only after the Board issued its April 2020 remand order and the RO issued its June 2020 supplemental statement of the case (SSOC), which confirmed the Veteran was never aboard the U.S.S. Peleliu in November 1987, that the Veteran submitted a September 2020 statement via his representative in which he asserted—for the first time—that the crash occurred while he was aboard the U.S.S. Midway, not the U.S.S. Peleliu. The Board finds the Veteran’s recollection of purported PTSD stressors is not credible. In finding his accounts not credible points to the following evidence: First, the Veteran’s recollection of events aboard the U.S.S. Midway in November 1987 is nearly identical to the actual events that occurred aboard the U.S.S. Peleliu in November 1987. This is remarkable to the Board because the Veteran was not aboard the U.S.S. Peleliu at the time of the events and he has not indicated that he knew of the events from any other source. Second, the Veteran’s recollection of events is difficult to believe because the Veteran was not aboard the U.S.S. Midway in November 1987. When the Veteran’s representative submitted a supplemental statement in September 2020 on the Veteran’s behalf alleging the helicopter crash occurred while he was aboard the U.S.S. Midway rather than the U.S.S. Peleliu, he did not assert any changes to his recollection of events or dates, only as to the vessel he was aboard. Thus, the Board assumes the facts he asserted that occurred aboard the U.S.S. Peleliu in November 1987 must have allegedly occurred aboard the U.S.S. Midway in November 1987, identically as he described. According to his “History of Assignments,” the Veteran served aboard the U.S.S. Midway from September 5, 1986, until his transfer to U.S. Naval Hospital in Subic Bay, Philippines, on March 2, 1987. Then, he was transferred to U.S. Naval Hospital in Yokosuka, Japan, on March 11, 1987. A March 4, 1987 service treatment record (STR) from Yokosuka, Japan, U.S. Naval Hospital states, “Pt is yours for surgery. Couldn’t apparently make it on ship. Dumped here in Subic. Good luck.” He was then transferred back to the U.S.S. Midway on May 28, 1987, but he was immediately transferred back to the Yokosuka, Japan, U.S. Naval Hospital on the same day for medical treatment. The Veteran remained at the Yokosuka, Japan, U.S. Naval Hospital until his transfer to the U.S.S. Peleliu on January 8, 1988. His STRs indicate he received medical treatment at the Yokosuka, Japan, U.S. Naval Hospital on September 9, 1987, after which his next STR indicates treatment aboard the U.S.S. Peleliu on September 7, 1988. The Board has no reason to doubt the veracity of the Veteran’s service records, to include his historical assignment or STRs. Based on this competent, credible, and highly probative evidence, the Veteran was stationed at the Yokosuka, Japan, U.S. Naval Hospital during all of November 1987. Third, the Veteran’s testimony about the event was oddly generalized. When asked by his representative to describe what occurred, the Veteran provided broad testimony, which contrasted with his detailed September 2017 statement. Although he provided testimony about fueling a helicopter and recalled a “sputtering” noise at the time, it was nonetheless vague, and he provided no further descriptive testimony. Notably, he did not recall the month or day of the event, even though he specifically listed it in his September 2017 statement. Finally, and not to be overlooked, the Veteran filed his claim for benefits in June 2017. It took him three years to realize that he had mistaken the vessel on which the helicopter crash occurred. Interestingly, he only changed his location after the RO issued its June 2020 SSOC reconfirming the Veteran was never aboard the U.S.S. Peleliu in November 1987. On this note, the Board will point out that the Veteran did not sign the September 2020 supplement statement in support of claim in which he changed his location to the U.S.S. Midway; rather, his representative signed and submitted the statement. Cf. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (“[I]t is not unreasonable to conclude that a[] [veteran’s] attorney is acting with the full authority and knowledge of his client and thus, to attribute to his client the attorney’s actions and communications.”). The competent, credible, and probative evidence of record only indicates that the Veteran was not aboard the U.S.S. Peleliu in November 1987, nor was he aboard the U.S.S. Midway in November 1987. Furthermore, the Board finds it incredible to believe that while aboard the U.S.S. Midway at any time during his active service that the Veteran witnessed a helicopter crash or its aftermath that was nearly identical to the crash that occurred aboard the U.S.S. Peleliu in November 1987. In sum, the Veteran’s assertions are not credible. Duty to Assist In his November 2020 appellate brief, the Veteran’s representative reaffirmed the Veteran’s assertion that the helicopter crash occurred aboard the U.S.S. Midway rather than the U.S.S. Peleliu. As such, the Veteran’s representative requested the Board remand this case to the RO for further development consistent with VA’s duty to assist under 38 U.S.C. § 5103A. The representative asserted VA has a duty to assist with corroborating the occurrence of the helicopter crash aboard the U.S.S. Midway. The Board finds VA has satisfied its duty to assist and remand is not warranted under the particular facts of this case. Section 5103A of Title 38 of the United States Code, provides: (a) Duty To Assist.— (1) The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary. (2) The Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim. Accordingly, “[t]he statute only excuses . . . VA from making reasonable efforts to provide such assistance, if requested, when ‘no reasonable possibility exists that such assistance would aid in substantiating the claim.’” Wood v. Peake, 520 F.3d. 1345, 1348 (Fed. Cir. 2008) (quoting 38 U.S.C. § 5103A(a)(2)). The Board finds there is no reasonable possibility that further development will substantiate the Veteran’s claim because the Board finds the Veteran to lack credibility and his alleged recollection of events is unsupported by any credible evidence. In his September 2017 statement, the Veteran set forth detailed facts about a helicopter crash aboard the U.S.S. Peleliu. The RO conducted appropriate development and confirmed the Veteran’s factual assertions almost entirely as he presented them, except for his presence aboard the vessel at that time. When the Veteran submitted his statement in September 2020 changing his location to the U.S.S. Midway, he changed nothing else about the event: the date remained the same, the location of the event in California remained the same, the circumstances of the event remained the same, the number of service members involved stayed the same, and the number of deceased and/or missing servicemembers remained the same. As already discussed, the Veteran was not aboard the U.S.S. Midway in November 1987. Even if the Veteran was trying to assert that a helicopter crash occurred aboard the U.S.S. Midway at some unidentified point during his active service, his general assertion is not reasonable. The Veteran would have the Board believe a nearly identical helicopter crash occurred aboard the U.S.S. Midway as it did aboard the U.S.S. Peleliu. This assertion is simply not reasonable, is unsupported by common sense, and is rebutted by the evidence as to the Veteran’s lack of credibility. The Board finds the Veteran’s alleged recollection of the events aligns with the actual events that occurred aboard the U.S.S. Peleliu in November 1987. Notably, the Veteran has provided no reasonable grounds for the Board to believe he confused his locations, dates, or events. A mere assertion, without more in this case, is insufficient to convince the Board there is a reasonable possibility of finding evidence described by the Veteran in relation to the U.S.S. Midway when all of the evidence demonstrates he described the actual events that occurred aboard the U.S.S. Peleliu. Accordingly, the Board finds VA satisfied its duty to assist when it developed evidence related to the Veteran’s alleged in-service stressor, the helicopter crash aboard the U.S.S. Peleliu. The Board does not find the Veteran’s assertion of an identical event occurring aboard the U.S.S. Midway to be reasonable or credible. Thus, the Board finds there is no reasonable possibility that further development will substantiate the Veteran’s claim. 38 U.S.C. § 5103A(a)(2). VA’s duty to assist is not triggered. The Board now turns to the merits of the Veteran’s claim for service connection. Service Connection As to the first element of service connection, a current disability, the Board finds the evidence weighs against such a finding. In the context of service connection for an acquired psychiatric disability, to include PTSD, the “current disability” requirement must be proven with evidence diagnosing the condition in accordance with the DSM-5. See 38 C.F.R. §§ 3.304(f), 4.125(a). “[A] clear (that is, unequivocal) PTSD diagnosis by a mental-health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor” because “[m]ental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis.” Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The Veteran was afforded an in-person VA examination in December 2017. The examiner’s report is complete and thorough. She reviewed the Veteran’s electronic claims file and his computerized medical records, and she considered and documented his medical history and lay statements. The examiner used the DSM-5 criteria in her analysis. The examiner diagnosed the Veteran with alcohol dependence, noting he was diagnosed and treated during his naval service in 1987 for severe alcoholism with blackouts. As to criterion A, exposure to an event that involved death or threatened death, actual or threatened serious injury, or threatened sexual violation, the examiner opined that the Veteran’s report of witnessing a helicopter crash “marginally” satisfied the criteria. She too spotted the evidence indicating the Veteran was not aboard the U.S.S. Peleliu in November 1987. The examiner found the evidence did not satisfy criteria C through I. Overall, the examiner found the Veteran’s claimed stressor of a helicopter crash did not meet the DSM-5 criteria. Furthermore, the examiner found the Veteran’s reports as to his second in-service stressor, to include (1) being made to dive into a pool for remedial swimming lessons prior to his first naval deployment and being asked if he had “any last words”; (2) seeing a burial at sea; (3) being lonely and away from family for one-and-a-half years in Japan as part of his sea service; and (4) being denied leave, did not qualify as category A stressors. Absent evidence to the contrary, the Board finds the December 2017 VA examiner was competent to exam and diagnose the Veteran with respect to a psychiatric condition. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board finds the examiner’s report and findings credible as they are based on accurate facts, a review of the Veteran’s medical history, consideration of his lay statements, and are in conformity with the DSM-5. The Board also finds examiner’s diagnosis and rationale are the most probative evidence of record. Accordingly, as the Veteran does not have diagnosed psychiatric disorder, to include PTSD, in accordance with the DSM-5, he does not have a current disability for VA compensation purposes. 38 C.F.R. §§ 3.304(f), 4.125(a). Consequently, the first element of service connection is not satisfied. Cohen, 10 Vet. App. at 138. The inability to satisfy the first element is dispositive in this case, and the Veteran is not entitled to service connection for an acquired psychiatric disorder, to include PTSD. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.