Citation Nr: 21015274 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-35 568A DATE: March 17, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a diagnosis of PTSD or other acquired psychiatric disorder that began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1983 to July 1986. This matter comes before the Board of Veterans’ Appeals (Board) from August a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the undersigned Veterans Law Judge by virtual hearing. A transcript of the hearing is of record. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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). The Board must assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks service connection for PTSD or another psychiatric disorder. Preliminarily, the Board notes that the only acquired psychiatric disorder for which the Veteran has a current diagnosis is PTSD. Establishing service connection for PTSD requires (1) medical evidence diagnosing PTSD in conformance with the DSM-IV criteria; (2) a link, established by medical evidence, between a veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. See 38 C.F.R. § 3.304 (f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). If PTSD was diagnosed by a medical professional, VA must assume that the diagnosis meets the DSM-IV criteria relating to adequacy of the symptomatology and sufficiency of the stressor. See Cohen, 10 Vet. App. at 153. A mental disorder diagnosis must conform to the Fourth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-IV), or, for claims received by or pending before the AOJ on or after August 4, 2014, the Fifth Edition (DSM-5). See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). If a stressor is related to the Veteran’s fear of history military or terrorist activity, and a VA psychiatrist or psychologist (or a psychiatrist or psychologist with whom VA has contracted) confirms that the stressor is adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the stressor, in the absence of clear and convincing evidence to the contrary, and provided that the stressor is consistent with the places, types, and circumstances of his service, his lay testimony alone may establish the occurrence of the claimed stressor. 38 C.F.R. § 3.304 (f)(3). If the Veteran did not engage in combat with the enemy, or the Veteran did engage in combat, but the alleged in-service stressor is not combat related, the Veteran’s lay testimony, by itself, is not sufficient to establish the occurrence of the alleged in-service stressor. Instead, the record must contain credible supporting evidence which corroborates the Veteran’s testimony or statements. Cohen, 10 Vet. App. at 147. The Veteran’s service treatment records are silent for any complaints of, treatment for, and/or a diagnosis related to PTSD or any other psychiatric disorder. A July 1986 separation report of medical history indicates the Veteran denied a history of frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. A July 1986 separation report of medical examination indicates a normal psychiatric clinical evaluation. The record contains a May 2011 report from E.M.T., Ph.D., a licensed psychologist who interviewed the Veteran and provided a psychosocial assessment. Dr. T. diagnosed PTSD, chronic, delayed. Dr. T. stated that the Veteran: presents with classic symptomatology related to service-connected posttraumatic stress disorder. [The Veteran]’s situation is somewhat unusual. He has outlined his stressor regarding the time he spent guarding weapons. He spent two years working 12- hour shifts, 7 days a week. The reason he was busted down to a PFC was that his Commander wanted him to wake up the other person so that if [the Veteran] had to use the bathroom facilities, there would always be someone available. He refused to do that and was nearly [court-martialed]. [The Veteran] is somewhat embarrassed about coming forth at this time, but he is having more and more bouts of severe depression. Recently, he did not work for over three weeks and just stayed at home and was very isolative. I have urged him to seek individual therapy. He should be evaluated for psychotropic medication. Based on my clinical interview, observations and review of assessment measures, it is my professional opinion that he meets all criteria as outlined by DSM-IV regarding 309.81. He has suffered in silence for many years. He has tried to deal with it himself by self-medicating with alcohol. He is now willing to address these issues. The record contains a letter dated in August 2012 from C.L., Psy.D.: [The Veteran] started working with me on 06/07/2011 for issues that has arisen related to his time in the service at Fort Campbell Kentucky. [The Veteran] shows the classic signs and symptoms of Posttraumatic Stress Disorder and has been working in therapy toward resolving these symptoms and issues. It is my opinion that his diagnosis of Posttraumatic Stress Disorder is a direct result of this time spent during his military service. Following the hearing before the undersigned, the record was left open for 60 days for the Veteran to submit treatment records from Dr. L. In January 2021, the Veteran’s representative submitted a statement noting that the relevant clinic records had been destroyed and that Dr. L. could not be found. In a written statement received in August 2011 the Veteran’s brother reported that the Veteran had become withdrawn since service. The Veteran mostly kept to himself and did not participate in activities such as hunting as much as he did before. In July 2011, the Veteran provided a statement listing his reported stressors. He described his assignment working in the “arms room” at Ft. Campbell. This involved long hours on duty with sometimes only two soldiers at a time working in the room which had to be kept locked. The Veteran recalled an incident when he was home over the holidays and he was called by “MPI (Military Police Investigations). They wanted me to come back, as PFC Simmons had shot himself through the hand and hit an MP signing out her weapon. The bullet hit (I can’t remember her name) on duty MP in the spleen. She later lost her spleen. I was questioned as to the functional state of the pistol that had been discharged. 1 came back, gave my statement, and we were back down to 3 [soldiers on duty in the arms room].” The Veteran also described an incident where he got in trouble for locking the arms room rather than waking the other soldier on duty with him when the Veteran needed to go to the bathroom. He stated that got into an argument with a superior over his refusal to wake the other soldier. The Veteran also mentioned that a military plane was lost in December 1985 in Nova Scotia. In November 2011, the RO made a formal finding of a lack of information required to corroborate the reported stressors. The reported stressors were noted to be “personal in nature and unverifiable.” At his hearing in December 2020, the Veteran testified that his stressors included: I had lost a lot of friends in a plane crash, and one of them took my seat for the plane. He didn’t -- you know what I mean, he had -- he died in my place. What happened was is what -- after my dad died, I took what they call a section. I was a military policeman, and I took a section. And when you take a section, you lose your deployability status; however, I had an agreement with my Captain and my First Sergeant that when we deployed that I got to go, that I would go, and they agreed….They left -- they ended up going to -- one went to Korea, one went to Germany, so they left, they were gone. The new Captain came in, new First Sergeant, and they wouldn’t let me go, so Scott Gerdes took my place…When it should have been mine. Not only are the two private providers’ diagnoses of PTSD based on uncorroborated service events, these opinions lack sufficient support for the conclusions that the Veteran has PTSD related to in-service stressor(s). Dr. L.’s statement is conclusory and lacks any specificity or rationale. Dr. T.’s rationale has insufficient discussion of why the Veteran’s report of the altercation with his superior over the Veteran’s refusal to wake his fellow soldier so the Veteran could take a bathroom break would constitute a stressor sufficient to support a diagnosis of PTSD. The RO determined that the Veteran’s reported stressors noted in his July 2011 written statement could not be verified. The Veteran’s testimony at the December 2020 hearing regarding his belief that another soldier died in his place in the plane crash in December 1985 does not require verification. The Veteran did not witness the crash, and his report of how he could have been on the plane is so attenuated that it would not be possible to verify. Further, the diagnoses of PTSD of record were not based on this event. As none of the Veteran’s reported stressors are based upon combat, fear of hostile military or terrorist activity, being a prisoner-of-war, or personal assault, and because PTSD based on these stressors was not diagnosed during service, the Veteran’s lay evidence, alone, cannot establish their occurrences. 38 C.F.R. § 3.304 (f)(1)-(5). The Board acknowledges that a VA psychiatric examination has not been obtained but finds a VA examination is not warranted in this case. The Veteran’s reported stressors are either insufficient to support a diagnosis of PTSD or unverifiable. There is no credible evidence of record indicating that the Veteran has a psychiatric diagnosis other than PTSD. The evidence of record fails to show any psychiatric complaints or findings during active service, and/or competent and credible evidence of record suggesting that the Veteran has a psychiatric disability other than PTSD that is related to service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (a mere conclusory generalized lay statement that service caused the claimant’s current condition is insufficient to require the Secretary to provide an examination). Thus, the low standard of McLendon has not been met and a VA examination is not warranted. Id. In summary, the Board finds that the Veteran’s in-service stressors cannot be corroborated and the private providers’ statements showing diagnoses of PTSD are based upon uncorroborated stressor events and lack sufficient rationale. The criteria of 38 C.F.R. § 3.304 (f) have not been met. The record contains no other current diagnoses of an acquired psychiatric disorder. Service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.