Citation Nr: 21021108 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 15-03 602 DATE: April 9, 2021 ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder, anxiety and alcohol dependency, to include as due to service-connected bilateral hearing loss, tinnitus and/or eczema. ORDER Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder, anxiety and alcohol dependency, to include as due to service-connected bilateral hearing loss, tinnitus and/or eczema is remanded. FINDING OF FACT The claimed in-service stressors for post-traumatic stress disorder (PTSD) have not been corroborated by credible supporting evidence, and the competent and credible evidence does not reflect a current diagnosis of PTSD during the pendency of the appeal. CONCLUSION OF LAW The criteria for entitlement to service connection for post-traumatic stress disorder (PTSD) are not met. 38 U.S.C. §§ 1111, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 4.125(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1960 to August 1963, and the Army National Guard from January 1972 to November 1997. These matters come before the Board of Veterans’ Appeals (Board), on appeal from June 2014 and June 2017 ratings decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. By way of background, the Veteran’s claim for entitlement to service connection for post-traumatic stress disorder (PTSD) was denied in February 2003. The Veteran did not immediately appeal that denial, which therefore became final. The Veteran filed a claim for entitlement to service connection for unspecified depressive disorder, which was denied in June 2014. He filed a Notice of Disagreement (NOD) that same month. The Veteran was issued a statement of the case (SOC), and he filed a Form 9 in January 2015, appealing that claim to the Board. In the Veteran’s Form 9, he requested a Board Hearing. The Veteran then filed a claim to reopen the previously denied claim, and in a June 2017 rating decision, the RO declined to reopen the Veteran’s PTSD claim. The Veteran appealed that decision, and the Veteran’s claim was eventually certified to the Board, along with the claim for entitlement to service connection for unspecified depressive disorder. The Veteran then testified before the undersigned Veteran’s Law Judge at a January 2018 Board video conference hearing. A transcript of that hearing has been associated with the claims file. Following the Veteran’s testimony, the Veteran’s claims were placed on the Board’s docket, and in a Decision from June 2018, the Veteran’s claim of entitlement to service connection for unspecified depressive disorder was recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder, anxiety and alcohol dependency, to include as due to service-connected bilateral hearing loss, tinnitus and/or eczema, as shown on the title page. See further Clemons v. Shinseki, 23 Vet. App. 1 (2009). In that same June 2018 Decision, the Board found that new and material evidence had been received to reopen the claim for entitlement to service connection for PTSD. Both of the claims were then remanded for additional development and adjudication. The claims returned to the Board, however in January 2021, the Board again remanded these matters for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2).   Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for post-traumatic stress disorder (PTSD). The Veteran has claimed that he has a diagnosis of PTSD that is due to his active duty service. To establish service connection for PTSD, the evidence must satisfy three basic elements: 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran’s claim, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As noted in the Board’s prior January 2021 remand, the Veteran’s claimed diagnosis of PTSD has not been confirmed. There is some past evidence of a PTSD diagnosis. A medical record from Dr. C.E., dated December 2000 stated that the Veteran “Does meet criteria for PTSD … he described several criterion ‘A’ traumas, including seeing the bodies of women and children who were killed by [Vietcong] for aiding American soldiers, and frequent combat experiences.” As the Board will note later, these listed stressors are not those identified by the Veteran, nor have they been corroborated. 38 C.F.R. § 3.304(f). A Mental health psychiatric evaluation note from January 2001 indicates that the Veteran “presents with PTSD/depressive [symptoms].” There is no indication that this evaluation was based on corroborated stressors, and there is no evidence that the psychiatric evaluation was based on the appropriate Diagnostic and Statistical Manual of Mental Disorders. The Veteran’s VAMC records, to include group therapy sessions then included a working diagnosis of PTSD, which had not been verified. This was confirmed as early as December 2001 in a mental health psychiatric evaluation and stayed with the Veteran’s VAMC diagnostic history through regular consultations and group therapy sessions. As a more recent example, the Board notes that his claims file contains a psychology progress note from December 2017, which notes a “diagnostic impression [of] depression, borderline … PTSD.” The Board also notes that the Veteran’s claims file includes a VA mental health evaluation from May 2014. The Veteran was seen in person, and his claims file was reviewed. The examiner is noted to have used the correct DSM-5. When asked to list any potential mental health disorders, the examiner only identified unspecified depressive disorder. They also indicated that no other mental health disorder could be diagnosed. Due to, in part, the unclear diagnostic history, the Board in June 2018 remanded the Veteran’s claim for a subsequent VA examination. That VA examination occurred in September 2020. The Veteran was seen in person, and it is clear from the report provided that the Veteran’s claims file was reviewed. While the examiner did confirm that the Veteran had a diagnosis of unspecified depressive disorder, the examiner specifically denied that the Veteran had a current diagnosis of PTSD. They also wrote that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under the DSM-5. When discussing potential stressors, the examiner listed the following four stressors, as reported by the Veteran: (1) combat related trauma. Veteran reported that he didn’t want to talk about what happened because ‘it bothers me.’ (2) “machine gun blew up and I was the assistant gunner. It semi-knocked us out. It never got documented.” (3) “I got hurt in Japan. My right foot. I went down in the big hole at nighttime. No one could see me or hear me at first. I twisted my ankle. I got pictures.” (4) “drowning in the ocean a couple times. I hit the bottom of the ocean with my shoulder and I pushed off the sand.” For each of the listed stressors, the examiner indicated that the criteria for a diagnosis of PTSD was not met. The examiner then discussed each of these stressors, and stated that they could not be corroborated, and the ones that could meet the criteria, such as stressor (1), was not discussed in any way. As such, the examiner noted that “a PTSD diagnosis is consistently documented in his [records] but could not be objectively confirmed for the current exam.” As such, the medical evidence of record does not confirm that the Veteran has a current diagnosis of PTSD under 38 C.F.R. § 3.304(f). The Board also notes that the second criteria for entitlement to service connection for PTSD is not met, because the listed stressors as identified by the Veteran have not been corroborated. The Veteran testified at the January 2018 Board hearing that he served “all over in the Pacific, in Hawaii, submarine training, Okinawa, Japan, Taiwan, Hong Kong for R&R, Philippines for jungle training.” The Veteran then stated that he “went to Thailand, swam the Mekong at night and brought the last Americans out of Laos. Went across Cambodia into Da Nang.” When asked if these activities would be reflected in his personnel records, the Veteran answered the he “didn’t think so,” as there was only “one clerk for 144 people.” The Board notes that there is inconsistent evidence regarding the Veteran’s claimed combat experience. The Veteran’s DD-214 notes the Veteran served on active duty in the Marine Corps from November 1960 to August 1963, with 1 year, 1 month and 28 days of foreign and/or sea service. The only medal or citation was for the Good Conduct Medal. The Board further notes that the Veteran’s service personnel records do not list any deployments to Southeast Asia. However, a Record of Service notes the Veteran was assigned to Company D of the 1st Battalion, 5th Marine Regiment Fleet Marine Force Pacific from May through July 1962. The Board further notes the Veteran was stationed with Company M of the 3rd Battalion of the 9th Marine Regiment, 3rd Marine Division Fleet Marine Force from August 1962 through August 1963. An NGB Form 22 showing service in the Minnesota ARNG from August 1980 to January 1982 shows no decorations other than an expert badge for the M16 rifle. An NGB Form 22 showing service in the Minnesota ARNG from November 1986 to April 1995 indicates the Veteran was in receipt of, among others, the Vietnam Service Medal, the Vietnam Campaign Medal, and the Purple Heart. A Personnel Qualification Record indicates the Veteran received the Vietnam Campaign Medal. A Transmittal of and/or Entitlement to Awards notes the Veteran is entitled to an Armed Forces Expeditionary Medal. “Vietnam” was handwritten next to this award. No other awards, including the Vietnam Service Medal, the Vietnam Campaign Medal, or the Purple Heart, were selected. The Board is also reminded that this claim was previously remanded in June 2018. In the remand directives, it was outlined that the RO was to make additional efforts to attempt to corroborate the Veteran’s three claimed stressors. These stressors were (1) being deployed in Southeast Asia (generally), (2) being on a ship, the USS Magoffin, during a typhoon in December 1962, and (3) being carried out to sea by a rip tide off the coast of Camp Pendleton, California, in the Fall of 1961. The Board acknowledges that efforts were then made following the June 2018 remand to corroborate the Veteran’s identified stressors, first in January 2020 and then again in May 2020. Logbooks for the USS Magoffin have been associated with the claims file, however the identified stressor of being on that ship during a typhoon in December 1962 could not be confirmed. The January 2021 Board Decision also noted that the other identified stressors, including being deployed in Southeast Asia (generally) and being carried out to sea by a rip tide off the coast of Camp Pendleton, California, in the Fall of 1961, had not been corroborated. Importantly, the Veteran was reminded in the January 2021 Board Decision that it was his responsibility to relay a consistent list of stressors for his claim, so that they could be corroborated. Again, the stressors requested by the RO in January 2020 and May 2020, as directed by the Veteran, are different than those claimed by the Veteran during his September 2020 VA examination, which are also different than the stressor originally reported to Dr. C.E. in December 2000. In January 2021 the Veteran was also reminded that VA’s duty to assist is not always a one-way street, and that the Veteran was to cooperate in obtaining evidence necessary to adjudicate his claim. This included providing a consistent and detailed account of what his claimed stressor(s) are, and how he believes they form the basis for his claimed PTSD. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, pursuant to the remand directives in January 2021, the RO was to reach out to the Veteran to provide a consistent list of detailed stressors that he believes have caused his claimed diagnosis of PTSD. The Veteran was to be informed that credible supporting evidence that the claimed in-service stressor occurred is necessary for his claim, and that the failure to cooperate in the development of this claim may result in an adverse determination. 38 C.F.R. § 3.304(f). Then, if and only if the Veteran had provided that list of stressors to be corroborated, was the RO to schedule the Veteran for a VA examination so that his claimed PTSD could be confirmed, based on the appropriate DSM. It was required that this corroboration occurred prior to the exam, because a clinical diagnosis of PTSD relies on confirmed in-service stressors, which must be considered against PTSD diagnostic criteria. That corroboration has not occurred. Pursuant to the Board’s remand directives, the RO sent the Veteran a subsequent development request letter in January 2021. This letter identified the relevant information needed from the Veteran so that his claimed in-service stressors could be corroborated. The letter also informed the Veteran that failure to cooperate in this development may result in an adverse determination. Neither the Veteran, nor his Representative have responded to that request for additional information. As a result, the Veteran’s claimed in-service events can not be corroborated, and pursuant to the remand directives, the Veteran was thus not given a VA psychiatric evaluation. Again, this is because the VA examination for his PTSD had relied on the potential for corroboration of those listed stressors. To be sure, deck logs associated with the U.S.S. Magoffin have been associated with the claims file, but those records do not indicate being stuck in a typhoon in December 1962. The other stressors identified, such as being deployed in Southeast Asia (generally) and being carried out to sea by a rip tide off the coast of Camp Pendleton, California in the Fall of 1961 have also not been corroborated. Again, the Board notes that these stressors are different than those identified by the Veteran to the September 2020 VA examiner, which included (1) combat related trauma that the Veteran refused to discuss, (2) a machine gun “blew up” while the Veteran was the assistant gunner, (3) falling into a hole during the night and twisting an ankle, and (4) “drowning in the ocean a couple times.” See September 2020 VA examination. And again, the Board notes that these stressors are further different than that which the Veteran reported to Dr. C.E. in December 2020, where the Veteran indicated he saw “the bodies of women and children who were killed by [Vietcong] for aiding American soldiers.” As such, the Veteran’s listed in-service stressors cannot be corroborated. The Veteran’s identification of stressors has been largely inconsistent, and efforts to corroborate those stressors have been unsuccessful. The RO also made efforts to reach out to the Veteran for information to help corroborate those stressors in January 2020 and May 2020, and both attempts were unsuccessful. Then the Veteran was given an additional opportunity by the Board in January 2021 and informed that this information was necessary for his claim of entitlement to service connection for PTSD. The RO, pursuant to the Board’s remand directives, reached out to the Veteran in January 2021, and the Veteran has not responded. As this information was necessary for corroborating the claimed in-service stressors, and that information was not given, the claimed in-service stressors can not be confirmed. Furthermore, as corroboration of the in-service stressors was necessary for a VA examiner to confirm a current diagnosis of PTSD, and as those stressors could not be confirmed, the Veteran’s diagnosis of PTSD has not been confirmed. Thus, the Board must turn to the most recent diagnostic evidence available, which either denied that the Veteran had a current diagnosis of PTSD or indicated that a current diagnosis “could not be objectively confirmed.” See May 2014 VA Exam and September 2020 VA exam respectively. Unfortunately, the Veteran’s lay statements are not enough. See 38 C.F.R. § 3.304(f) (1-5). Even if the Veteran’s lay statements had been enough, his inconsistent statements over time limit his credibility, which in turn, would afford the Veteran’s lay statements little probative weight. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the Board is not required to accept a Veteran’s uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Woody v. Derwinski, 1 Vet. App. 190, 192 (1991). So, in conclusion, the Veteran has failed to provide credible supporting evidence that the claimed in-service stressors actually occurred, and the supporting medical evidence is against a finding of a current diagnosis of PTSD under 38 C.F.R. § 3.304(f). The Board finds that the preponderance of the evidence is against his claim of entitlement to service connection for PTSD. Thus, the Board finds that entitlement to service connection for PTSD is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and service connection for PTSD is denied. 38 U.S.C. § 5107, Gilbert v. Derwinski, Vet. App. 49, 55-57 REASONS FOR REMAND The Board incorporates its discussion from the sections above by reference. The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder, anxiety and alcohol dependency, to include as due to service-connected bilateral hearing loss, tinnitus and/or eczema is remanded. The Veteran has claimed that he has an acquired psychiatric disorder, which is due to his active duty service. He has also claimed that his psychiatric disorder may be proximately due to and/or aggravated by his service-connected bilateral hearing loss, tinnitus, and/or his eczema. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As noted above, the Veteran’s claim was previously before the Board in June 2018, where the claim was remanded. Such remand was necessary so that the Veteran’s diagnoses could be confirmed and an etiological opinion could be rendered. That VA examination occurred in September 2020. In the Board’s January 2021 Board remand, it was determined that the September 2020 VA examination was inadequate for determining the Veteran’s claim for entitlement to service connection. In brief, the September 2020 VA examiner’s report did not offer an opinion on direct service connection, it did not discuss the Veteran’s lay statements, and an opinion on possible aggravation was not given, which is required under 38 C.F.R. § 3.310. Finally, the September 2020 report was based on an inaccurate factual premise, as it indicated the Veteran’s symptoms followed his first divorce, but an earlier treatment record indicated that these symptoms were present during his marriage. See December 2012 VAMC treatment record; See further Reonal v. Brown, 5 Vet. App. 460, 461 (1993). As a result, the Veteran’s claim was remanded by the Board in January 2021. The Board notes that the directives of the previous remand were followed. The RO was to reach out to the Veteran for information that could help corroborate his claimed in-service occurrences for his PTSD claim. Following that corroboration, the Veteran was to be scheduled for a VA examination. As noted in the preceding section, since the Veteran did not respond to the RO’s request for information which would allow for possible corroboration of the in-service events related to his PTSD claim, that VA examination never took place. Because the VA examination for PTSD never occurred, the in-conjunction VA examination for an acquired psychiatric disorder also never occurred. Thus, the Board finds that the previous remand directives were essentially followed by the RO, even though the Veteran had not been scheduled for the VA examination. See Stegall, Id. Having said that, the Board recognizes that the VA examination which could have corrected the inadequacies of the September 2020 VA examination therefore never occurred and is still required. And because the Veteran’s entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran must be given another VA examination, so that the required etiological opinions may be provided. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. After, completion of step one, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination(s) is not feasible) to determine the nature and etiology of any acquired psychiatric disorder, to include unspecified depressive disorder, anxiety and alcohol dependency, to include as due to service-connected bilateral hearing loss and/or tinnitus and/or eczema. A copy of this remand must be made available to the examiner for review in conjunction with this examination. Following a review of the Veteran’s claims file, the examiner is asked to opine as to the following: (a.) For any acquired psychiatric disorders that can be diagnosed, to include, but not limited to, unspecified depressive disorder, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. (b.) If not, the examiner must opine whether each diagnosed disorder is at least as likely as not (1) proximately due to service-connected bilateral hearing loss, tinnitus, and/or eczema, or (2) aggravated beyond its natural progression by service-connected bilateral hearing loss, tinnitus, and/or eczema. The examiner is reminded than an opinion on possible aggravation is required. The examiner must address the lay statements and testimony from the Veteran regarding his claimed disabilities. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case (SSOC) and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.