Citation Nr: 21010316 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-24 386 DATE: February 24, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1977 to December 1980. In support of his claim, the Veteran recently testified at a January 2021 “virtual” hearing before the undersigned Veterans Law Judge of the Board; a transcript of the hearing is of record. During the hearing, the Veteran was granted an additional 30 days to submit more evidence and/or argument in further support of his claim, and that 30-day allowance (grace period) since has expired. The claims file includes private opinions and a Disability Benefits Questionnaire (DBQ) completed by Dr. Jennings concluding the Veteran has PTSD and major depressive disorder related to his time in the Marine Corps. The opinions are insufficient to support a grant of service connection, however. Initially, the Board points out that the Veteran did not serve in combat to warrant application of 38 C.F.R. § 3.304(f)(2), and Dr. Jennings is not employed by VA or contracted by VA; thus, his opinion does not meet the alternative requirements of subpart (f)(3) to be accepted as sufficient after-the-fact evidence etiologically linking the Veteran’s mental impairment to fear of hostile military or terrorist activity. Moreover, the Veteran’s alleged stressors are not based on fear of hostile military or terrorist activity and, thus, require confirmation. Subpart (f)(3) requires that the event or circumstance in service be perpetrated by either a member of an enemy military or by a terrorist. See Hall v. Shinseki, 717 F.3d 1369 (Fed. Cir. 2013), see also Acevedo v. Shinseki, 25 Vet. App. 286, 291 (2012) (citing to definition of "hostile force" in 38 C.F.R. § 3.1(y)(5) as one with "anti-American" objectives or views). There also are several notable discrepancies in Dr. Jennings’ reports and/or the contentions of the Veteran’s attorney regarding the Veteran’s service. Dr. Jennings stated that the Veteran served with a high level of security clearance in Bangor, Washington, from 1979-1983, whereas, in actuality, he had a “secret” clearance and served in Bangor, Washington, from June 1978 to December 1980, when he was separated from active service. Dr. Jennings also stated that the Veteran had been awarded a Naval Unit Commendation with an individual Silver Star. The Navy Silver Star is the third highest combat decoration a military member may be awarded. The Board is unsure why Dr. Jennings indicated that the Veteran had been awarded the Silver Star when he did not serve in combat, and there is no evidence in his official military records of him receiving this award or commendation (see, e.g., his DD Form 214). Dr. Jennings also erroneously indicated the Veteran received the Meritorious Unit Commendation with bronze stars; however, the Meritorious Unit Commendation in the claims file is for a unit attached to the American Embassy in San Salvador, El Salvador, and do not pertain to this Veteran’s particular service. In addition, an article in the claims file notes that the Marine Corps Security Forces Battalion Bangor has been awarded the Navy/Marine Corps Meritorious Unit citation (MUC) streamer with 4 bronze stars; but they were not for the Veteran’s periods of service, instead, were for periods after he had separated from service. The only individual medal the Veteran received was the Good Conduct Medal.   As well, Dr. Jennings did not discuss the Veteran’s post-service employment that also may be relevant. The earliest clinical evidence of PTSD is in 2010, when the Veteran had a positive screening. A September 2013 VA clinical record reflects that he reported having “dreams that remind him of being on guard duty – a recurring dream of fighting and shooting sometimes.” He also reported that he had been in “security – 20 something years and had been a prison guard for a couple of months. But he worked in airport security for approximately 12 – 13 years, worked as a corrections officer for three to nine years (he has given various accounts and listed two different prisons), and at a Diversion Center for two years. As Dr. Jennings found that the Veteran’s current acquired psychiatric disabilities were due to being on alert/guard duty in service, as opposed to since, it seems highly relevant that, since service, the Veteran has worked in security for more than a decade, including as a prison guard and in a correctional facility. Rather than discuss the Veteran’s dreams of “guard duty” as they may relate to his post-service occupation, Dr. Jennings failed to provide any discussion whatsoever of the Veteran’s post-service security employment. Moreover, the September 2013 VA opinion does not specifically relate PTSD to the Veteran’s military service and actually notes the Veteran reported that, while he did not enjoy the Marines initially due to racial issues, he enjoyed it later on when he started to play sports. The Veteran’s attorney has stated that, in 1976, the Bangor Naval Submarine Base’s main gate was cut and that the “Trident Monster” (a group of protestors) “walked onto the Bangor base itself through the illegally cut openings, and that the Veteran “was standing on duty for 24 hours at a time while watching over the crowds that yelled insults and racial epithets at him.” But the Veteran was not in the Marine Corps in 1976, did not join the Marine Corps until December 1977, and was not stationed in Washington state until June 1978. Thus, this alleged stressor incident did not occur to him. The Veteran’s also has stated that, on May 22, 1978, approximately 4,000 people gathered for a large scale anti-nuclear protest, and that 300 protestors climbed the base’s fence and were arrested. However, the Board again points out the Veteran was not in Washington state at that time because he did not arrive there until in June 1978. Thus, this alleged stressor incident also did not occur to him. The articles submitted note that the protestors used nonviolent civil disobedience and that the “usual idea was to stage an event on the bases, such as a prayer, until they were removed.” The Veteran has claimed that, in June 1978, protestors claimed to have a bomb and were willing to blow up the base (he did not state on his VA Form 21-0781 that he was actually involved in their apprehension), but there is no evidence to support his assertion and, as noted, the articles indicate the protestors conversely were nonviolent. The Veteran also contends that the protestors threw firecrackers, breached the fence, or attempted to breach the fence on several occasions. The Board acknowledges the Veteran was a guard at Naval Submarine Base Bangor and that civil disobedience/non-violent protesters scaled the fences around the base in October 1979 (see the article in the claims file titled “confronting the U.S. Navy at Bangor, 1973-1982, by Brian Casserly). However, no other alleged stressor involving protestors has been verified by VA and/or is consistent with his dates of service, including especially in Washington state. The Veteran additionally has alleged that he was fearful while escorting a missile from a submarine in Seattle to a silo because it could explode, and that he also was fearful because he was not provided any protective gear (e.g., lab coat, eye protection, gloves), despite transporting a nuclear weapon. He also contends that he was harassed due to being black, and the harassment included racial slurs, being treated more harshly by superiors – such as in the way of being forced to take a swim test after having his wisdom teeth removed, being forced to train in the gas chambers without a proper filter and while having a wound, and not getting relieved from guard duty. As well, he says he was in many racial fights and that he received an Article 15 for fighting; however, the only Article 15 in his claims file was for being absent without leave (AWOL). The Veteran’s Report of Medical History for separation purposes in 1980 reflects that he denied depression or excessive worry, denied frequent trouble sleeping, and denied nervous trouble of any sort.   A January 2013 VA Disability Benefits Questionnaire (DBQ) for Residuals of Traumatic Brain Injury (TBI) indicates the Veteran reported that he was then currently “taking something for mood swings”. Treatment records clarifying who prescribed him medication, and for what diagnosis, may be useful to the Board in deciding this appeal. Social Security Administration (SSA) records also may have information relevant to this VA appeal, so these other records also need to be obtained and considered. After obtaining all addtional records pertinent to this claim, the Veteran should be provided a VA mental status examination to ascertain the likelihood he has an acquried psychiatirc disorder of some sort – including PTSD and/or major depressive disorder (MDD) – because of his military service. Accordingly, this claim is REMANDED for the following action: 1. Ask the Veteran to identify all private providers from whom he has received treatment for mood swings, depression, and/or PTSD from 2009 to 2013. Have him complete and return a VA Form 21-4142, Authorization and Consent to Release Information, for each provider identified, so that VA may obtain these confidential records. 2. Also obtain the Veteran’s SSA records, including all medical treatment records considered in this other Federal agency’s determination. 3. After obtaining all additional records relevant to this claim, schedule the Veteran for an examination by a psychiatrist or psychologist to determine whether he has an acquired psychiatric disorder of some sort (including PTSD and/or MDD), and, if confirmed he does, whether it is as likely as not (50 percent or greater probability) the result of his service. To this end, the examiner must consider the pertinent evidence of record – including: a.) the Veteran’s Report of Medical History for separation purposes wherein he denied difficulty with sleep, nerves, or depression; b.) the earliest clinical evidence of PTSD in 2010; c.) his post-service employment in airport security for more than a decade, at two different correctional facilities for several years (e.g. three to nine), and at a Diversion Center for two years; d.) his allegations of racial tension/harassment in service; e.) the 2013 VA record noting he conceded that, while he did not enjoy the Marines initially due to racial issues, he enjoyed it later on when he started to play sports; and f.) his report that he was fearful around nuclear missiles owing to the constant possibility they would detonate. The examiner conversely should not consider that the Veteran was present at the site of multiple violent protests but may consider that he was stationed at a Navy base in October 1979 when nonviolent anti-nuclear protesters climbed a fence as an act of civil disobedience.   When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide adequate rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.