Citation Nr: 21009379 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 12-02 309 DATE: February 22, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) for accrued benefits purposes is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran had a diagnosis of PTSD that began during active service or is otherwise related to a verified in-service stressor. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to January 1969, which included service in the Republic of Vietnam. He died in February 2015. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018 the Board remanded the case for further development; there was substantial compliance with the Remand directives. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.800(c). 1. Entitlement service connection for PTSD for accrued benefits purposes. The appellant contends that service connection is warranted for the PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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). Additionally, VA regulations provide that in the following circumstances the veteran’s lay testimony alone may establish the occurrence of an in-service stressor, so long as it is consistent with the circumstances of his service and there is no clear and convincing evidence to the contrary: PTSD is diagnosed in service; the veteran is a combat veteran; the stressor relates to fear of hostile military or terrorist activity; the veteran was a prisoner of war; or the stressor is based on in-service personal assault. 38 C.F.R. § 3.304(f)(1)-(5). If a stressor claimed by a veteran is related to the 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 posttraumatic stress disorder and that 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. For purposes of this paragraph, “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). For the purpose of entitlement to VA benefits, 38 C.F.R. § 4.125 requires that the diagnosis of a mental disorder must be made in accordance with the criteria of the applicable version of Diagnostic and Statistical Manual of Mental Disorder, currently the Fifth Edition (DSM-5). [38 C.F.R. § 4.125 incorporates by reference VA’s adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fifth Edition (DSM-5), for rating purposes]. The applicability date of the rulemaking requiring diagnosis of psychiatric disorders under DSM-5 indicated that the revision is not applicable where a case was pending before the Board on or before August 4, 2014. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). The Veteran’s case was pending before August 4, 2014; therefore, DSM-IV is applicable. VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question for the Board then is whether the Veteran had a DSM-IV diagnosis of PTSD that began during service or is at least as likely as not related to a verified in-service stressor. For the reasons that follow, the Board concludes that the preponderance of the evidence is against finding that the Veteran had a DSM-IV diagnosis of PTSD that began during service or is at least as likely as not related to a verified in-service stressor. As a result, service connection is not warranted. Service treatment records were silent for any complaints or treatment of PTSD or other psychiatric condition and the Veteran’s VA treatment records do not contain a diagnosis of PTSD. 38 C.F.R. § 3.304(f)(1). The Veteran did not identify a claimed in-service stressor when he filed his claim for PTSD. Therefore, in a May 2008 letter, the RO notified the Veteran of his need to submit a statement identifying his claimed in-service stressor(s) and the necessary information to develop and verify the stressor(s) and his claim for PTSD generally. In February 2009, the Veteran submitted a May 2008 report of a psychological consultation with private psychologist, Dr. S.R. In the report, Dr. S.R. identified the stressor provided by the Veteran, based on his service in Vietnam. Dr. S.R. reports that the Veteran was instructed to call in an air strike in an area near his base. The airstrike was performed, and napalm was dropped in the area, which he witnessed. Sometime later, the Veteran reported watching as badly injured and burned villagers were brought to the base for treatment. The Veteran recalled being struck by the sight of one young woman who was burned particularly badly. In response, the Veteran was notified in a May 2009 letter that the stressor statement he submitted did not meet the minimum level of detail needed to seek assistance from the U.S. Army and Joint Services Records Research Center (JSRRC). The Veteran was asked to submit additional information, specifically the date of the claimed incident within a 60-day timeframe; the location of the incident and the unit of assignment at the time of the incident. The Veteran never responded. Therefore, in August 2009, a VA memo was added to the claims file noting a formal finding of a lack of information required to verify the stressor, despite following all procedures to obtain the information. The memo noted that the Veteran’s personnel records do not indicate the receipt of any combat medals/ribbons/awards which would indicate exposure to combat stressors. 38 C.F.R. § 3.304(f)(2). Subsequently, the Veteran submitted a statement in support of his claim in August 2009 in which he identified a second claimed in-service stressor. The Veteran reported that he was stationed in Vietnam during the Tet Offensive (confirmed by his personnel records) and that at one point the base where he was stationed came under fire and that he heard lots of explosions and debris flew over his head and he thought he was going to die. In August 2010, the Veteran then submitted a psychological report, again from Dr. S.R. (who is a licensed clinical psychologist), in support of his claim. Dr. S.R. diagnosed the Veteran with PTSD, opining in his June 2010 report that the Veteran “endorsed sufficient criteria to meet the diagnostic threshold for PTSD as required by the DSM-IV, including criterion A numbers 1 and 2; criterion B numbers 1, 2, 5; criterion C numbers 1, 2, 3, 5 and criterion D numbers 1, 3, 5; and criteria E and F.” Dr. S.R. reported that in previous sessions the Veteran had described in detail his combat-related trauma dating back to his service in Vietnam during the “Tet Offensive.” The report also noted that the Veteran had been his patient on and off since December 2003 but included no other clinical notes or treatment history. In September 2010, the Veteran was afforded a VA examination. The VA examiner, interviewed the Veteran and reviewed his claims file, including the report from Dr. S.R., and determined that the Veteran does not meet the DSM-IV criteria for PTSD. The VA examiner also opined that the Veteran’s claimed stressor is not adequate to support a diagnosis of PTSD. The VA examiner further noted a lack of social changes, re-experiencing, or heightened physiological arousal due to service or any relationship to fear of hostile military activity. The VA examiner also stated that “there are no symptoms, there is no severity, and there is no duration of symptoms.” The VA examiner additionally noted that the opinion provided for PTSD was separate and distinct from a previously service-connected psychiatric disorder diagnosed by a November 2008 VA examiner as depressive disorder associated with diabetes and its complications. However, because the private treatment records from Dr. S.R., dating back to December 2003, were not associated with the claims file, and as there were conflicting diagnoses, in January 2018 the Board remanded the case to the RO for further development. The Board directed the RO to obtain the private treatment records from Dr. S.R. and an addendum opinion to determine the nature and etiology of the Veteran’s claimed psychiatric conditions. No additional private treatment records were added to the claims file. Upon request, the appellant provided the necessary medical release form to obtain the records from Dr. S.R.’s facility. However, upon submission, a May 2020 reply was returned requesting the Veteran’s death certificate and noting that no records could be produced without said certificate. The appellant was notified of the request in a July 2020 letter and given 30 days to respond. No response was provided, and so the private treatment records from Dr. S.R. could not be obtained. The addendum medical opinion was provided in December 2019. A different VA examiner reviewed the claims file, including the report from Dr. S.R., as well as subsequently produced VA treatment records, and opined that, though the Veteran had reported some symptoms of PTSD, such as nightmares related to the criterion A stressor of his deployment to Vietnam, the Veteran’s reported symptoms did not rise to the level of a PTSD diagnosis. Further, the VA examiner pointed to an October 2014 VA mental health assessment, which included a PTSD screening. The PTSD screening was negative for a finding of PTSD. During the mental health assessment, the Veteran reported no PTSD symptoms, no combat experiences, and denied significant military trauma. A similar VA PTSD screening, provided in November 2008, was also negative for a finding of PTSD. The VA examiner opined that the Veteran’s mental disorder was depressive disorder due to another medical condition, with depressive features, as previously diagnosed in 2008. There is no competent medical evidence of any other diagnosed psychiatric disorder, other than the already service-connected depressive disorder. To the extent the Veteran had a diagnosis of PTSD from Dr. S.R., it was not based on a verified stressor, and therefore service connection is not warranted on that basis. 38 C.F.R. § 3.304(f). The Veteran provided two claimed in-service stressors, but neither are corroborated. The first claimed in-service stressor of witnessing napalm bombing victims, could not be verified as the Veteran never submitted the minimum level of detail necessary to have the stressor verified. As noted, the Veteran’s DD Form 214 and personnel records do not reflect awards or medals indicative of combat service. To the extent the second claimed in-service stressor was related to his fear of hostile military activity during the Tet Offensive, the Veteran’s lay testimony cannot establish the occurrence of this claimed in-service stressor as the stressor was found by the September 2010 VA examiner to be inadequate to support a diagnosis for PTSD. As indicated, 38 C.F.R. § 3.304(f)(3) requires a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirm that the claimed stressor is adequate to support a diagnosis of PTSD and find that a Veteran’s symptoms are related to the claimed stressor. Such has not been accomplished in this case. As the PTSD diagnosis from Dr. S.R. is not based on a verified stressor, and as the Veteran has otherwise been found on multiple occasions not to have a PTSD diagnosis, the Board concludes that the Veteran has not met the criteria for entitlement to service connection for PTSD. 38 C.F.R. § 3.304(f). To the extent the appellant and the Veteran, both of whom are lay persons, may have believed the Veteran had PTSD due to his military service; they are not competent to do so. As this is a complex medical determination, their lay statements are not probative to establish a clinical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the preponderance of the evidence is against the claim, there is no doubt to be resolved; service connection is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board is grateful for the Veteran’s honorable service, service connection for PTSD is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Caban, 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.