Citation Nr: 21014553 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-04 220 DATE: March 15, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), is denied. FINDING OF FACT The Veteran’s stressors are not corroborated or verified; and the preponderance of the evidence weighs against finding the Veteran’s acquired psychiatric disorder had its onset during or is otherwise related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and MDD, have not been met. 38 U.S.C. § § 1131, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304(f).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1978 January 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the claim for further development, to include corroborating the Veteran’s in-service stressors and providing the Veteran a VA examination. The Board notes the Veteran’s claim for service connection for sleep apnea has also been certified to the Board under the Legacy appeal system; however, the Veteran requested a hearing in conjunction with that claim and is being scheduled for such. As such, the Board will not delay adjudication of this claim. The Veteran also has three service connection issues pending under the Appeals Modernization Act (AMA) system. This decision does not address or affect the merits of the Veteran’s other pending claims. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and MDD, is denied. The Veteran asserts he has a psychiatric disorder, to include PTSD and/or MDD, that developed as a result of being subjected to racial discrimination and a racially charged shooting during his military service. The Board finds service connection is not warranted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection for PTSD requires medical evidence diagnosing the condition; 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. § 4.125. Generally, where a determination is made that a veteran did not “engage in combat with the enemy,” or the claimed stressor is not related to combat, a veteran’s lay testimony alone will not be enough to establish the occurrence of the alleged stressor. 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 contain service records or other corroborative evidence that substantiates or verifies the veteran’s testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994). However, if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians, and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304 (f)(5). Behavioral changes following the claimed assault, including substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause, and unexplained economic or social behaviors are also relevant pieces of evidence supporting the existence of an in-service stressor. Id. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning now to the evidence, the Veteran’s service treatment records, including a separation examination, do not show a diagnosis or symptoms of PTSD or another acquired psychiatric disorder. Medical records show his mental health symptoms emerged in August 2011, following arrival to a VA facility for general care. He noted being around other Veterans made him recall bad memories of racial discrimination from service. He was formally diagnosed with MDD in November 2011, at an initial mental health assessment. At the assessment, the Veteran reported intense stress from racial discrimination when he was in service, the emergence of negative intrusive memories of service following his recent treatment at VA, and recent stress about finances and losing his job. He reported not experiencing problems with memory or depression until he came to VA for his general care initial assessment earlier in 2011. His December 2019 VA mental health examination indicates diagnoses of MDD and PTSD. The Veteran contends his current MDD and PTSD are due to in-service racial discrimination that began as soon as he arrived at Ft. Bragg in North Carolina and a shooting that reportedly occurred during his time at the base. The Veteran reports when he first arrived at Ft. Bragg, a major brought him into his office to tell him that he did not like African Americans and that the Veteran would not be given a medal in front of his company. He reports that another superior, Sgt. M., also brought him into his office and told him how much he hated African Americans. Further, Sgt. M. reportedly forced the Veteran to do his duties twice and waited until they were alone before saying racially discriminatory things. The Veteran states he reported these incidents to a Commander W. The Veteran also alleges Commander W. cleared fellow servicemen to capture the Veteran, take him to an unknown location, and interrogate him regarding past drug use. He reports that five of his friends were gathered and interrogated in the same manner. He reports following this incident he started to have bad dreams and get into fights. Lastly, he reports he and a friend moved off-base from Ft. Bragg to avoid racial discrimination, only to have a fellow serviceman fire a shotgun through a window while he was hosting guests. He reports he and the individuals involved went to the police department to give statements, but nothing was done. He reports that he has kept in contact with two individuals involved in the shooting and who reportedly still suffer from the incident. The Veteran also generally asserts that he was passed up for promotions and advancement due to his race. Based on review of the evidence, the Board finds that the Veteran’s account of the nature of his service at Ft. Bragg, and specifically his reported in-service stressors which involve personal assault, is not corroborated. Contrary to the Veteran’s allegations that his superiors did not like him due to his race and did not identify him for promotion or advancement, the Veteran’s personnel records show his superiors supported him and recommended him for advancement. For example, performance evaluations reveal his superiors described the Veteran as “outstanding” and “equaled by few and surpassed by none” as a Morse code interceptor. His numerical evaluations were near perfect. Moreover, Sgt. M., who the Veteran specifically noted did not like him due to his race, recommended in a 1982 performance report that the Veteran be selected for additional courses, advanced military occupational specialty training, and be considered for the position of squad leader and assistant platoon sergeant. This advice was apparently heeded, as a performance evaluation from 1983 indicates he had been made an assistant squad leader and was described in the position as “a versatile and conscientious leader who strives for self-improvement” whose “genuine interest in the welfare of his squad members [] earned him the respect of the entire platoon.” Further, the Veteran reported the emergence of nightmares and getting into fights after being captured by fellow servicemen, but his service treatment records do not include notations of nightmares, he did not note the presence of nightmares at his separation examination, and there are no disciplinary actions or indications otherwise on the record that suggest the Veteran began fighting after the alleged capture incident. The Veteran’s personnel records indicate exemplary service throughout his time at Ft. Bragg. Thus, with affirmative evidence to the contrary, the Board finds the Veteran’s descriptions of racial discrimination from his superiors at Ft. Bragg to be less than credible. The Board also finds evidence weighs against the occurrence of the 1983 shooting alleged by the Veteran. The Veteran has been on notice of the need for information to verify this event, such as witnesses and possible witness statements, since February 2014, when VA first sent him a letter requesting this information. In June 2017 he responded, reporting he was still in contact with two people involved in the shooting. However, he did not provide their contact information nor submit lay statements from them. In September 2018, the Board remanded this claim specifically for development to corroborate the Veteran’s stressors, including the 1983 shooting incident. In September 2019, VA sent the Veteran another letter requesting he complete forms and provide stressor information, contact information for witnesses and doctors that have treated him since service, as well as witness statements. In a second response, made in October 2019, the Veteran supplied a description of racial harassment during service and stated, “if needed I can provide names of others that can confirm the information I am providing,” even though he knew VA has been trying to obtain this information since 2014. The Veteran did not provide the names of the witnesses nor provide their lay statements. The Board finds the Veteran’s longstanding choice not to provide contact information for witnesses to the incident when he claims to be in contact with them and has been on notice for at least the last six years that VA needs this information to corroborate his testimony to be behavior representing highly persuasive evidence against the existence of the 1983 shooting. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding “[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence,” in a case where an incarcerated Veteran failed twice to be sufficiently specific about the stressful events he alleged). Moreover, the record does not show the Veteran experienced behavioral changes indicative of a traumatic event during service. As noted above, the Veteran’s performance evaluations indicate consistent, exemplary service. The Board considered evidence from sources other than the Veteran’s service records to corroborate his stressors. However, these sources also do not evince behavioral changes indicative of a traumatic event during service. The only evidence in support of a behavioral change comes from his sister’s January 2020 buddy statement regarding his claim for sleep apnea. In it, she stated that the Veteran was cheerful before arriving at Ft. Bragg. However, she then moved on to explain the Veteran complained about trouble sleeping. Thus, the Board did not ascribe this statement much probative value towards whether the Veteran experienced a behavioral change indicative of mental health symptoms during service. Notably, the probative value of this statement towards the Veteran experiencing a behavioral change when he arrived at Ft. Bragg is outweighed by the Veteran’s near perfect performance evaluations throughout his time at Ft. Bragg. The Board acknowledges the RO may not have properly requested documentation of the Veteran’s potential shooting incident. In development correspondence sent to the Fayetteville Police Department, it was indicated that the incident occurred in April 1981, when the incident reportedly occurred in the summer of 1983. Notably, it appears the Veteran indicated at his December 2019 examination that the shooting occurred in 1981, but he otherwise reported on the record that it occurred in 1983. While the RO’s request for a 1981 record thus indicates a possible duty to assist error regarding corroborating this event, the Veteran stated in 2017 that he contacted the Fayetteville Police Department to obtain documentation of the incident, only to be told the department does not keep records of such incidents for longer than 20 years. Thus, the Board has no reason to believe a remand to correct this duty to assist error would provide any benefit to the Veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board also acknowledges the record contains positive evidence of an association between the Veteran’s current mental health diagnoses and his military service. For example, a VA examiner opined in December 2019 that the Veteran’s PTSD and MDD were at least as likely as not related to the Veteran’s military service. However, the diagnosis of PTSD is based on descriptions of in-service events that the Board has herein determined are not corroborated. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. However, VA is not required to accept a doctor’s diagnosis of PTSD due to personal assault as proof that the stressor occurred, as doctors typically rely on unverified stressor information provided by the patient. See Menegassi v. Shinseki, 638 F.3d 1379, 1382-83 (Fed. Cir. 2011). To the extent, the examiner links the diagnosis of MDD to these reported events in service, the Board has herein found the Veteran’s assertion of such events to be less than credible. Thus, the Board cannot rely on these two opinions to support service connection. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); see also Coburn v. Nicholson, 19 Vet. App. 427, 432-33 (2006). Finally, pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease, such as a psychosis, is shown as such in service, subsequent manifestations of the same chronic disease is generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. See 38 C.F.R. §§ 3.303 (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, a psychosis was not diagnosed during service or within one year from discharge. Thus, presumptive service connection based on a chronic disease or through continuity of symptomatology is not warranted. See 38 C.F.R. §§ 3.303 (b); 3.307, 3.309. In sum, the Board finds the evidence of record weighs against the claim. The Veteran’s account of the events during his military service are not corroborated or found credible, and thus, the positive medical opinions based on them are insufficient to support the claim. The criteria for service connection for an acquired psychiatric disorder are not met. In making these determinations, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). While the Board is grateful for the Veteran’s honorable military service, service connection for an acquired psychiatric disorder is not warranted. The claim is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante, 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.