Citation Nr: 21011789 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 08-23 107 DATE: March 2, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the appellant has PTSD that began during active service, or is otherwise related to an in-service injury or disease; the appellant’s claimed stressors were inconsistent with the circumstances of his service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty from February 1963 to December 1964, with subsequent reserve service. This case comes from the Board of Veterans’ Appeals (Board) on appeal from a May 2006 RO decision. In November 2008, the appellant testified at a personal hearing before a Veterans Law Judge (VLJ), who has since retired from the Board. In 2015, the appellant’s attorney requested a second Board hearing, which was held before the undersigned Veterans Law Judge in December 2015. The record contains transcripts of the hearings. This appeal has a long procedural history and has been before the Board and the United States Court of Appeals for Veterans Claims (Court) multiple times. As this procedural history has been addressed in prior Board decisions and remands, it will not be repeated here in full. The Board most recently denied the appellant’s claim for service connection for PTSD in a November 2017 decision, which he appealed to the United States Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Remand asking the Court to vacate the Board’s November 2017 decision. In a May 2020 Memorandum Decision, the Court set aside the Board’s November 2017 decision and remanded the matter for further proceedings. The appeal was then remanded in December 2020 to comply with the Memorandum Decision. The RO has substantially complied with the Board’s remand instructions, so the Board may proceed to the merits of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). I. Duties to Notify and Assist The Court’s May 2020 Memorandum Decision concluded that the Board erred by failing to provide the appellant with proper notice and an opportunity to respond to its conclusion in November 2017 that the appellant’s “claimed stressors related to fear of hostile military activity from the appellant’s Korea service simply are not consistent with the circumstances of such service” because the Board had stated in an October 2013 Board remand that the reported stressor was “consistent with the time, place, and circumstances of his service.” The Court held that the principles of fair process required notice and opportunity to respond to this apparent change in the evaluation of the appellant’s credibility. See Smith v. Wilkie, 32Vet. App.332, 334 (Apr. 27, 2020) (“the principles of fair process require the Board to provide claimants notice and an opportunity to respond when it purports to reverse prior assertions that evidence is credible or otherwise satisfactory to establish a fact necessary to the claim”). When the Board remanded this claim in December 2020, it stated: The Board’s November 2017 decision and this remand are intended to serve as notice of the Board’s position regarding the appellant’s credibility and its evaluation of whether his reported stressors are consistent with the circumstances of his service. The appellant now has an opportunity to submit additional evidence and argument on this point while his case is in remand status. On Remand, the RO issued a December 2020 Supplemental Statement of the Case denying the claim, stating in relevant part: The Board’s November 2017 decision and the current Board of Veterans’ Appeals remand issued December 10, 2020, were intended to serve as the Board’s position regarding the credibility and evaluation of whether the reported posttraumatic stressors are consistent with the circumstances of your service. You have been afforded an opportunity to submit addition [sic] evidence and argument on this point. As of this current decision no additional information has been received from you On January 21, 2021 the appellant and his representative were notified that the case was being returned to the Board. Since the Court’s Memorandum Decision, the only thing received was November 2020 Correspondence from the appellant’s representative, which made arguments relating to credibility and application of the regulations to this matter, but did not identify any additional development that was required. The Board has complied with the duty to provide notice to the appellant regarding its credibility determinations, and he has had the opportunity to present additional evidence and argument addressing the credibility of his stressor statements. It has been more than 60 days since the Board’s decision and the most recent Supplemental Statement of the Case were issued, and more than 30 days since the appellant was notified his appeal was being returned to the Board, with no additional evidence or argument received. In addition, the May 2017 JMR did not take issue with the June 2016 Board decision's analysis regarding VA's fulfillment of the duties to notify and assist in this case. Other than as noted above, neither the appellant nor his attorney has raised any issues with the duty to notify or duty to assist since that time. Indeed, the appellant's attorney's September 2017 brief, which challenged other aspects of the Board's June 2016 decision in great detail, raised no outstanding issues regarding either the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Moreover, neither the appellant nor his attorney has asserted that VA failed to comply with 38 C.F.R.§ 3.103(c)(2), and neither has identified any prejudice in the conduct of the Board hearings. As the issue has not been raised, there is no need for the Board to discuss compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010). See Dickens, supra. II. Entitlement to service connection for PTSD The appellant primarily asserts that in 1963, during patrols along the Korean Demilitarized Zone (DMZ), he participated in combat in which he was fired upon by the enemy and returned fire, killing an unknown number of the enemy. He also asserted that he fired upon a group of women and children who did not return his fire. Moreover, he has stated that it was his job to "search out, ambush, and kill any infiltrators attempting to cross the border." His attorney also contends that his lay testimony alone is sufficient to establish the occurrence of this claimed in-service stressor under 38 C.F.R. § 3.304(f)(3), and this contention was the focus of the May 2017 JMR. See, also, November 2020 correspondence. The appellant also has asserted in statements and personal hearing testimony that he believes he has PTSD as a result of hazardous, special guerilla training at Fort Lewis, Washington. He believes that these claimed incidents involving his special training and missions in the DMZ were not recorded because the government wants to deny the activities in which he participated. The appellant is requesting service connection for PTSD related to these experiences. The Board has thoroughly reviewed all the evidence in the appellant's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (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. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Pertinent legal authorities for consideration were provided to the appellant in the Board's June 2016 and November 2017 decisions and will not be repeated here in full. If the evidence establishes that the appellant engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the appellant's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304 (f)(1); see also, 38 U.S.C. § 1154(b). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that a claimant did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, his lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the appellant's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by re-designating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows (emphasis added): 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 [PTSD] 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. The provisions of the above amendment apply to applications for service connection for PTSD that (1) are received by VA on or after July 12, 2010; (2) were received by VA before July 12, 2010, but have not been decided by a VA regional office as of July 12, 2010; (3) are appealed to the Board of Veterans' Appeals (Board) on or after July 12, 2010; (4) were appealed to the Board before July 12, 2010, but have not been decided by the Board as of July 12, 2010; or (5) are pending before VA on or after July 12, 2010, because the Court vacated a Board decision on an application and remanded it for readjudication. Thus, the amended regulation applies in this case. In this case, a review of the appellant's service treatment records reveals no complaints, treatment, or diagnoses of PTSD. The appellant's VA medical records reflect multiple diagnoses of PTSD related to his reported experience in Korea. These diagnoses are predicated upon the appellant's own stories regarding his stressor events, however. He also carries diagnoses including depression, anxiety, panic disorder, bipolar disorder, dissociative disorder, and personality disorder. A July 2015 VA psychiatric examination yielded the examiner's conclusion that the appellant does not meet the psychiatric diagnostic criteria for a diagnosis of PTSD. However, October 2015 and April 2017 private psychological evaluations, as well as the August 2017 private PTSD Disability Benefits Questionnaire arranged by the appellant's attorney, reflect diagnoses of PTSD related to reported stressors in Korea. The claim must be denied because the Board finds there is no credible evidence and no supporting evidence that the claimed in-service stressors occurred. Moreover, the claim must fail even after applying 38 C.F.R. § 3.304(f)(3) because the Board finds that the claimed stressors related to fear of hostile military activity from the appellant's Korea service simply are not consistent with the circumstances of such service. Accordingly, as discussed further below, the appellant's non-credible lay testimony alone does not establish the occurrence of the claimed in-service stressor. The appellant's claims file contains no evidence that he received any awards or decorations indicative of combat, and there is nothing in his service records suggesting that he ever served in combat. His putative participation in Ranger School, or any other specialized combat or special operation training, is not recorded in his service personnel records, or his DD Form 214. He was assigned to Fort Lewis from July 1963 until he left for Korea in December 1963. However, under "specialized training," all completed courses were dated in May 1963, during his basic training. There is no indication of any training completed at Fort Lewis. Therefore, strictly looking at the service records, the appellant's claimed stressors cannot be presumed to have occurred under 38 U.S.C. § 1154(b) because those records do not show, on their face, combat service. His attorney argues no corroboration is required to find this statute applicable. However, the statute clearly indicates satisfactory lay evidence can be proof of in-service incurrence if consistent with the circumstances, conditions, or hardships of combat service. Since the service records themselves do not corroborate combat service, then his lay testimony would have to be "satisfactory," which, at a minimum, means credible, and consistent with the circumstances, conditions, or hardships of combat service. As described in detail below, the appellant's lay testimony is not credible - and is, therefore, not satisfactory lay evidence - nor is it consistent with the circumstances of his service. The appellant's personnel records reflect that he arrived in Inchon, Korea in December 1963, and returned to the United States in December 1964. He was discharged from active service in December 1964 at the rank of E-3 (Enlisted, three). His military occupational specialty (MOS) was that of light weapons infantry. He received a single medal during his period of service, reflecting expertise with the rifle. His service records reflect no specialized training or education in special operations, guerrilla warfare, or "hand to hand combat." With regard to verifying the appellant's reported stressors, the appellant was notified in correspondence dated in January 2008 that additional information was required for VA assistance in helping him substantiate his PTSD claim including names and approximate dates for events identified as stressors. In a February 2008 response, the appellant indicated that, while in Korea, he had killed infiltrators as he was trained to do, but he provided no details of any event that may be verified. In a March 2008 memorandum, the RO found that information sufficient for a request for service department verification had not been provided. In a statement received by VA in July 2008, the appellant wrote that in Korea, "I was given 2 men, 1 Korean, 1 American. We were sent on missions inside the DMZ. We patrolled, set up ambushes, and killed infiltrators. The patrols and other things we did was above and beyond normal training. The number of killed is unknown. Firefights were frequent." During the November 2008 Board hearing, the appellant testified under oath as to his activities in Korea. He stated that his small team of a man from Chicago, himself, and a Korean who could understand the language, would go up inside the DMZ, and "we would search out, and ambush, and kill infiltrators that was trying to come across the DMZ. . . .we had several encounters where I call it combat. You all might not call it combat, but any time somebody's shooting at me and I'm shooting at them and we're running for our life and fighting back, I call it combat." He also described a particular alleged incident. "[W]hen we went on the DMZ it is really no man's land. And if you was on that DMZ with me and I found you, you was dead. I don't care who you were. That was just the way I was trained. And I had a group trying to cross and I just emptied two magazines into them and all I could hear is sounding like woman and kids. They never fired a shot back. That's one of the only times that I ever ambushed anybody and they did not fire back. And I have thoughts of that everyday. And there was a lot of that stuff that went on over there." During the 2008 hearing, the appellant explained that where he was stationed in Korea, he was about thirty minutes away from the DMZ by truck. He stated that he would go up to the DMZ, "When they would I guess get a report through Army intelligence that somebody was coming up on us or whatever but I went up there sometimes twice a week, sometimes once a week. Sometimes we stayed up there two or three days. Some days we would go up there and we would stay one. It depended on whatever the situation was. But once we found something going across and we killed them, then we, you know, came back." He was asked whether there was any desire to capture any of the infiltrators for intelligence purposes. His answer was, "No. Our job was to seek out and destroy." In July 2010, the Board remanded this issue to conduct further development. Specifically, it was requested that the U. S. Army and Joint Services Records Research Center (JSRRC), formerly the Center for Unit Records Research (CURR), obtain the unit histories for Company B, 2nd Brigade, 47th Infantry from July 1963 to September 1963, and for Company B, 2nd Brigade, 8th Infantry from October 1963 to November 1963, to determine if the appellant participated in any special operations training that involved physical assault. It was also requested that JSRRC obtain the unit history for Company B, 1st Battalion, 17th Infantry, for the purpose of determining whether the appellant or his unit preformed duties near the DMZ. Specifically, it was requested that the JSRRC determine whether the appellant's unit conducted any combat operations in the DMZ from December 1963 to December 1964. In an August 2011 response from CURR, it was noted that the U.S. Army Center for Military History (CMH), located at Fort Lesley McNair, Washington, DC, was unable to document that the 2nd Brigade, 47th Infantry or the 2nd Brigade, 8th Infantry as valid U.S. Army units. However, the available records for the 2nd Battalion, 47th Infantry (2nd Bn, 47th Inf) and the 2nd Battalion, 8th Infantry (2nd Bn 8th Inf) for the periods indicated were researched, and no unit records were able to be located. The search was also coordinated with the National Archives and Records Administration located in College Park, Maryland, and no unit records for the periods indicated were able to be located. Because no unit records were located, the historical researchers were unable to determine if either of the units was in Korea during the time indicated by the appellant. However, the CMH stated that the Station List for June and August 1963 indicated that the 2nd Bn, 47th Inf was located at Fort Lewis, Washington, and was inactivated on October 1, 1963. The Station List for June and August 1963 indicated that the 2nd Bn, 8th Inf was at Fort Riley, Kansas, and for November 1963, the unit was at Fort Lewis, Washington. In a second August 2011 response from CURR, it was noted that the available records were researched, and there were no unit records pertaining to the 1st Battalion, 17th Infantry (1st Bn, 17th Inf) for the period indicated by the appellant. Research was also coordinated with the National Archives and Records Administration located in College Park, Maryland, and they were unable to locate any unit records for the period indicated. Since no unit records were available, this office was unable to document the location of the 1st Bn, 17th Inf. Additionally, CURR contacted the CMH located at Fort Lesley, McNair, Washington, DC. The CMH stated that the Station List for June 1963 indicated that 1st Bn, 17th Inf was located at UnChon-Ni, Korea, and the Station List for August and November 1963 indicated that the 1st Bn, 17th Inf was at Tangduchon-Ni, Korea. The first CURR response verified that the appellant's unit was present in Fort Lewis, Washington. However, this response gave no indication that the appellant's units participated in any special operations training that involved physical assault. Likewise, the second CURR response verified that the appellant's unit was present in Korea. However, this response gave no indication that the appellant's units participated in firefights or missions that involved killing or receiving fire from enemy infiltrators. The Board finds that all available avenues have been exhausted in order to attempt to verify the appellant's reported stressors. These claimed stressors are not independently verified. The Board further explicitly finds that the appellant's reports are incredible and inconsistent with the circumstances that are known of his service, contrary to the contentions in his attorney's September 2017 and November 2020 briefs. With regard to the appellant's reports of being subjected to hazardous guerilla training at Fort Lewis, the Board finds that there is simply no corroborative evidence of record supporting the appellant's reports that he underwent training which involved personal assault while in Fort Lewis. As noted above, neither guerilla training nor ranger training (to include training by a Ranger as contended by counsel in the September 2017 brief) is reflected in his service personnel records. His statements that the government does not want that information to be public simply makes no sense and strain credulity. Being sent to such highly specialized trainings is exactly the type of thing that would be noted in a service member's military personnel records. Furthermore, he states he was investigated by and received a "high clearance" from the FBI, yet his service personnel records have no entries under "investigations and clearances." Again, this is the type of item that would be noted if it were true. The appellant's attorney argues that the Board has "to explain why [the appellant's] service personnel records are completely silent" about this training. The explanation, which the Board thought was clear from its prior discussion, is the fact that the training did not happen. Simply because the appellant alleges it is so does not make it true. The appellant's attorney argues that the appellant claims the training was by Army Rangers, but never stated that he went to ranger training school. That is incorrect. The appellant expressly stated during his 2008 testimony that this was "gorilla [sic] warfare school is what they called it, but actually it was a ranger training school." Again, to the extent he claims his training in Fort Lewis was "ranger training school," that is simply incorrect. The Board takes judicial notice of the fact that Army Ranger School is located in other states, primarily at Fort Benning, Georgia, see http://www.ranger.org/page-584454, and, to the extent the appellant is referring to the 75th Ranger Regiment at Fort Lewis, Washington, that regiment was not created until 1973, and was stationed at Fort Lewis in 1974 - long after the appellant's period of service. See http://www.ranger.org/page-593624. To the extent he is claiming he underwent some kind of specialized training led by Army Rangers, the discussion above addresses why this is not credible. Compare September 2008 Hearing Tr. at 5 (“they sent me to kind of gorilla warfare school is what they called it, but actually it was a ranger training school”) with September 2017 Appellant’s Informal Brief (stating the Veteran “has never asserted that he attended ranger training school”). The Board recognizes the appellant's attorney's contention in the September 2017 brief that the Board's June 2016 decision improperly rejected the credibility of the appellant's statements regarding his claimed stressor from abusive trainings at Fort Lewis. The Board rejects this contention because the Board thoroughly discussed its reasons for making this negative credibility determination (which are reiterated above). Such credibility findings based upon the appellant's inconsistent and facially implausible statements are squarely within the Board's discretion as a fact-finder. See, e.g., Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of inconsistent statements, the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). The attorney's focus on whether the Board properly "note[d] the distinction between [the appellant's] reports of the circumstances of his training versus participation in Army Ranger School training" misses the forest for the trees. The brief's arguments on this point also failed to address the larger, global credibility issues with the appellant's multiple inconsistent, vague, implausible, and unsupported statements of record regarding both this claimed stressor and the claimed stressor from his Korea service (discussed further below). Moreover, the Board recognizes the appellant's attorney's argument in the September 2017 brief specifically challenging the June 2016 Board decision's rejection of the appellant's assertion that he was beaten so badly during this alleged special training that he lost several teeth. Review of his service dental records reflects that he had two teeth removed due to non-restorable caries, when he was stationed at Fort Gordon, Georgia. The first tooth was extracted in July 1963, shortly after his entrance into service, and the second tooth was extracted in August 1963. His December 1964 separation report of medical examination noted a total of five missing teeth. The attorney's brief states, "There is no apparent explanation in [the appellant's] dental records for how or when he lost two more teeth (Numbers 14 and 19) than the three that were extracted at Ft. Lewis....There are no other dental records indicating any further extractions of the remaining two missing teeth." The attorney relies on the appellant's lay assertions in support of the argument, "Indeed, [the appellant's] explanation that he had two teeth knocked out in training appears to explain how he lost a total of five teeth in service." There is absolutely no objective, affirmative support for this inference in the appellant's service treatment records. In fact, his December 1964 separation report of medical history includes an affirmative representation by the appellant to the contrary, namely his report of no severe tooth or gum trouble. He also did not respond to an inquiry regarding bleeding excessively after injury or tooth extraction. Had he in fact lost multiple teeth in such a violent incident, it is reasonable to expect that he would have reported it upon separation in response to these specific dental inquiries. The fact that he did not, but rather affirmatively made a contrary representation, undermines the credibility of this contention. With regard to the appellant's claims that he was assigned to lead a three person group for the purpose of killing infiltrators to South Korea, this statement is similarly incredible, absent any independent support whatsoever. As previously noted, the suggestion that someone who held the rank of E-3 and had been in the military for less than one year and had absolutely no specialized training (again, none was noted in his records when it ordinarily would be the type of thing recorded) would be given such an assignment simply challenges credulity. The appellant's attorney argues that the Board points to no evidence to actually refute the appellant's statements. That misconstrues the evidentiary burden. To reiterate - because his statements are (a) not credible and (b) not consistent with the circumstances of his service, his claimed stressors must be corroborated by some type of evidence. Moreover, the Board has pointed to evidence that refutes his claims of what he did in Korea - the service records lack any documentation that he was trained in these "search and destroy" missions or any specialized training at all, and, instead, lists specialized training all completed on 10-May-1963 consisting of standard courses such as ATP 21-114 which was standard basic training, training in the Code of Conduct and the like. The evidence of training he received that excludes the training he claims is evidence that refutes his claims. The specialized training he claims to have received would be the type of item recorded in military personnel records. In fact, his allegations are not corroborated and are not otherwise credible or consistent with his service. One of the reasons his statements are not credible is the appellant has made multiple inconsistent statements regarding the specific circumstances of his claimed stressors on or near the DMZ and regarding the specific nature of his MOS at that time. For example, in multiple statements, he stated that his duties included multiple encounters involving searching out, ambushing, and killing infiltrators trying to cross the DMZ, as well as frequent firefights. He testified that he performed such duties with two other men and that all three men, including himself, were "special forces trained" and that he "retrained the two guys that went with me in special formation because I was...specially trained in hand to hand combat." He stated that he was sent on missions inside the DMZ in which he and other men did patrols that were "above and beyond normal training." He suggested that his duties in the DMZ involved covert activities and stated that the Army intentionally kept his and others' rank so low that if they were captured then "we supposedly were just grunts that got lost....That was our cover story." Moreover, he stated that his MOS involved "special operations" as a sniper at the DMZ. See, e.g., 2008 hearing testimony; July 2008 substantive appeal and correspondence. However, he also testified that he "drove a personnel carrier when my regular duty called it." He further testified that he was "a border observer for artillery, aircraft, Navy, front spotter...when we call in air strikes." He also asserted that his duties involved patrolling along and within the DMZ to ensure the safety and protect the border. Moreover, he stated that he trained South Korean soldiers in guerrilla warfare. See, e.g., 2008 hearing testimony; September 2013 statement. He reported to the July 2015 VA examiner that his claimed stressor involved a specific incident in the DMZ when he fired rounds into the dark, heard women and children screaming, and noticed no one fired back. (Notably, the examiner observed that his responses were vague and suggested some discrepancies between his objective behaviors and reported symptoms, including his lack of a reaction when someone knocked loudly on the door.) A July 2004 VA mental health progress note recorded the appellant's report that his "wife said I was never at the DMZ." He stated that he was in the infantry but "does not remember any other details." He also reported that he was stationed about seven miles from the DMZ and had to walk or ride there "two or three times to help with training and patrol." He reported "shooting at South Koreans, prostitutes hanging around the fences and kids starving to death." In summary, the Board finds that these statements are very vague as to the precise details and circumstances of the claimed stressors in Korea. They also are inconsistent with each other in terms of the nature and circumstances of his duties in Korea. He has at various times asserted that his duties involved secret, special missions requiring killing enemy infiltrators and receiving fire on the DMZ, training South Koreans in guerrilla warfare, patrolling the border, serving as a sniper, and driving a personnel carrier. At other times he omitted such details about his claimed duties or provided an entirely different account. For example, the July 2004 VA mental health note from before the filing of his 2005 service connection claim notably omitted any details regarding alleged special operations, secret missions, shooting at women and children, or receiving live fire from the enemy. Moreover, the appellant has made inconsistent statements regarding his alleged targets. Finally, even assuming for the sake of argument that his grandiose claims regarding his specialized training, special operations, and secret missions in the DMZ are true, they are facially inconsistent with other statements of record that his MOS also included comparatively mundane duties such as border patrols and driving personnel carriers. It strains credulity that someone with such a purportedly prestigious, specialized MOS also would have performed such relatively mundane duties during the same brief period of service. We can only conclude that his stressor statements, both as to the abusive training and as to his activities in Korea, are inherently incredible. Additionally, the Board has considered the impact of the July 13, 2010, amendment on the appellant's claim pursuant to the May 2017 JMR. Specifically, the May 2017 JMR asserted that, contrary to the Board's finding in the June 2016 decision, 38 C.F.R. § 3.304(f)(3) was applicable to the appellant's claimed stressor regarding alleged involvement in cross-fire with the enemy in Korea and witnessing of casualties. The JMR directed the Board to provide an adequate statement of reasons or bases as to whether the appellant's lay statements alone are sufficient to verify the in-service claimed stressor regarding his Korea service under that provision. The claimed stressor regarding his Korea service is related to his alleged fear of hostile military activity pursuant to the May 2017 JMR. The key issue under 38 C.F.R. § 3.304(f)(3) is whether there is an "absence of clear and convincing evidence to the contrary," or whether "the claimed stressor is consistent with the places, types, and circumstances of the veteran's service" such that the Board may exercise its discretion under this provision to find that the appellant's lay testimony alone may establish the occurrence of this claimed stressor. Because his claimed stressor from his Korea service is inconsistent with the circumstances of such service, the Board need not accept his lay testimony alone to establish the occurrence of this claimed stressor. The appellant's attorney's September 2017 brief suggests that because there is no "clear and convincing evidence to the contrary," then that finding alone requires the Board to grant entitlement to service connection here based upon the appellant's lay testimony alone under 38 C.F.R. § 3.304(f)(3). Specifically, counsel argued: "...[T]he Board may reject the credibility and probative value of [the appellant's] lay statements only in the presence of 'clear and convincing evidence to the contrary, and [evidence that] the claimed stressor is [inconsistent] with the places, types, and circumstances' of his service." However, the Board finds that this is a distorted and legally incorrect representation of this provision. Rather, 38 C.F.R. § 3.304(f)(3) (emphasis added) in fact states, in pertinent part: 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 [PTSD] 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.... The plain meaning of this provision demonstrates that the VA adjudicator must find both "the absence of clear and convincing evidence to the contrary," and that "the claimed stressor is consistent with the places, types, and circumstance" of service, before exercising discretion ("may") to find that the lay testimony alone establishes the occurrence of the claimed in-service stressor. See id. Therefore, it is sufficient for the Board to merely find that the claimed stressor is not consistent with the places, types, and circumstances of the appellant's service in order for the Board to find that his lay testimony alone does not establish the occurrence of the claimed in-service stressor. That is the case here, contrary to the attorney's contention otherwise in the September 2017 brief. For the reasons discussed in detail above, the appellant's claimed in-service stressor regarding his fear of hostile military activity in Korea involving special operations and killing infiltrators in the DMZ simply is not consistent with the circumstances of his Korea service, to include his MOS, rank, documented level of training, and awards. The appellant's unit and service records confirmed his presence in Korea and show that he received a single rifle award. However, service records regarding his MOS, training, and rank simply do not show that this claimed stressor (involving alleged special operations and secret missions in the DMZ, and killing enemy infiltrators) was consistent with the circumstances of his service. Finally, the Board recognizes the appellant's attorney's contentions in the September 2017 brief generally challenging the Board's June 2016 decision's negative credibility findings as to the appellant's statements about his claimed stressors from his Korea service. Such credibility determinations are squarely within the Board's discretion, and the Board thoroughly has explained why the appellant's various statements of record about this claimed stressor simply are not credible, as discussed above. In his November 2020 correspondence, the Veteran, throughout his attorneys, referenced “the Secretary’s concession of error at the Court.” In the March 2019 Brief of Appellee, the Secretary conceded that “the Board erred in failing to explain why it was no giving a negative finding on the issue, and further erred in failing to comply with the instructions in a prior JMR to address how close Appellant’s unit was to the DMZ.” As to the first error conceded by the Secretary, the above discussion provides ample reasons and bases for the Board’s conclusion that the Veteran’s lay statements were not consistent with the time, place, and circumstances of his service in Korea. The Secretary’s concession relates to the reasons why the Board’s current credibility determination differs from that in the October 2013 remand. First, and as pointed out in the March 2019 Brief of Appellee, the threshold for the Board to order an examination is “by design a ‘low threshold,’ nowhere near the level of certainty needed to find favorably for the veteran.” The Board’s examination of the record in making a merits determination was, therefore, more searching, thorough, and critical than in assessing whether the Veteran met the low threshold to obtain the assistance of a VA examination. Moreover, the July 2015 VA examination that resulted from the October 2013 remand produced an examination report which documented further inconsistencies in the Veteran’s allegations regarding his stressors, indicated that the Veteran’s responses were vague, and noted discrepancies between his observed behaviors and his reported symptoms. This new evidence raised additional red flags that post-date the October 2013 remand and resulted in a re-examination of the Veteran’s lay statements in the context of the entire record. Moreover, there are other statements, arguments, and allegations subsequent to the October 2013 remand that also raise concerns about the accuracy, consistency, and credibility of the Veteran’s reports. Just as an example, the Veteran’s expert witness, Dr. T., testified at a December 2015 Board Hearing and related what he told her about his stressors which deviated in important respects from the allegations of record in October 2013. Also, as discussed above, he submitted, through his representatives, argument attempting to explain the inconsistency between his prior allegations and his service records which invited a new examination of the consistency and credibility of the appellant’s statements of record and his representations to the Board. Compare September 2008 Hearing Tr. at 5 (“they sent me to kind of gorilla warfare school is what they called it, but actually it was a ranger training school”) with September 2017 Appellant’s Informal Brief (stating the Veteran “has never asserted that he attended ranger training school”). The record before the Board changed sufficiently after October 2013 for the Board to conduct a new examination of the record and to make fresh credibility determinations based on the changes in the record. The second error conceded by the Secretary was that the Board failed “to comply with the instructions in a prior JMR to address how close Appellant’s unit was to the DMZ.” See March 2019 Brief of Appellee. This is a reference to the December 2012 JMR which stated: “the Board provided no analysis whatsoever as to whether UnChon-Ni or Tangduchon-Ni, Korea would be considered ‘near’ the DMZ.” Notably, the JMR referred to a statement in a prior Board decision that “there is no evidence that he was located near the DMZ or present in any area of combat.” Id. As the above analysis shows, the Board’s determination is not based on a finding regarding proximity to the DMZ or even whether the Veteran was ever present in the DMZ. Instead, the Board has considered the specific stressors alleged by the Veteran and found them not credible and not consistent with the places, types, or circumstances of his service. Giving the Veteran the benefit of every doubt, the Board concedes that the Veteran’s unit was “near” the DMZ, such that his claimed stressors during his service in South Korea are not wholly inconsistent with the “places…of his service,” but the problem with his testimony is not the location of the base where he was stationed. Rather, the inconsistencies involve the types of training he claims to have undergone, the types of duties he claims to have performed, and the circumstances of his service. The December 2012 JMR did not require VA to conduct any particular development with respect to the proximity to the DMZ and takes judicial notice that Camp Kaiser (as identified by the representative) and Camp Casey (also identified by the representative) are “near” the DMZ. See, e.g., September 2017 Appellant’s Informal Brief. The Board finds no further development or analysis is required regarding the proximity of the Veteran’s duty stations to the DMZ. Upon review of all relevant evidence of record, the Board finds that there is no evidence that the appellant served in combat, his claimed stressors have not been verified, and his claimed stressors are not consistent with the circumstances of his service. For these reasons, the preponderance of the evidence is against the appeal and service connection cannot be granted for PTSD. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kerry Hubers 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.