Citation Nr: 21021251 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-25 181 DATE: April 12, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) with alcohol abuse, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder that began in service or is otherwise related to service; a confirmed diagnosis for PTSD related to an in-service stressor is not shown at any time during or approximate to the pendency of this appeal. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1989 to September 1991. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the claim for further development. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD with alcohol abuse. The Veteran, and his representative, contends that his acquired psychiatric disorder is related to his military service. Specifically, the Veteran argues that his PTSD stems from January 1990 in-service events, in which, he witnessed and came into close contact with multiple dead bodies during search and rescue missions. The Veteran additionally maintains that he started to heavily drink alcohol following these events. See VA Form 21-0781 (April 2013). The Board concludes that the preponderance of the evidence is against service connection for an acquired psychiatric disorder, to include PTSD. An acquired psychiatric disorder is not shown in service. Complaints of an acquired psychiatric disorder are first shown decades after active service separation. Also, a confirmed diagnosis for PTSD that is related to an in-service stressor is not shown at any time during or approximate to the pendency of this appeal. 38 U.S.C. §§ 1110,1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Service connection for PTSD requires: (1) Medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms 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 regulations require evaluation of mental disorders using the fifth edition of the American Psychiatric Association ‘s Diagnostic and Statistical Manual for Mental Disorders (DSM-5). 38 C.F.R. § 4.125. This applies to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014 (i.e., have not yet been certified to the Board). See 80 Fed. Reg. 14,308 (Mar. 19, 2015). Initially, the Board observes that an April 2014 correspondence reveals that the Veteran’s service treatment records are unavailable and are not located at the National Personnel Records Center. Further, an April 2020 correspondence reflects that mental health or rehabilitation records are unavailable. Where service records are missing or presumed destroyed, the Board has a heightened duty to assist and explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. The threshold for allowance of a claim, however, is not lowered; and there is no presumption, either in favor of or against the claimant. See Washington v. Nicholson, 19 Vet. App. 362 (2005); O’Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board concedes that the Veteran has a PTSD diagnosis and medical evidence reveals a link between the current symptoms and the alleged, but unverified, in-service stressor. See C&P Exam (April 2020). The Board, however, finds that the Veteran is unable to satisfy the third prong of service connection for PTSD, requiring credible supporting evidence that the claimed in-service stressor occurred. The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals, and whether the evidence establishes the occurrence of the stressor is a question of fact for adjudicators. Here, in support of the claim, the Veteran directs the Board to circumstantial evidence, such as administrative remarks, a counseling statement, a court memorandum. See Military Personnel Record (April 2020). He additionally submitted, in December 2014, an undated buddy statement. The buddy statement provides, in part, that the Veteran was onboard the United States Coast Guard Cutter (USCGC) SWEETBRIER “when it responded to a case involving a boat mishap at night, which in turn accounted of the drowning of two people after hitting a log boom in Cordova, Alaska.” On the other hand, the record reflects a July 2014 US Army and Joint Services Records Research Center (JSRRC) response: We reviewed the 1944-2001 ships’ history submitted by the USCGC SWEETBRIER (WLB-405). The history reveals that the USCGC SWEETBRIER was home-ported in Cordova, AK, and that the USCGC SWEETBRIER conducted general Aids-to-Navigation (ATON), search and rescue (SAR), international treaty enforcement, ice operations, marine law enforcement, and environmental protection operations during her time in service. In May 1990, the USCGC SWEETBRIER and her crew received the Meritorious Unit Commendation (MUC) award for the outstanding performance of all missions during the previous 16 months of service. The history does not document the 1990 boat accidents/civilian deaths as described by [the Veteran]. We also coordinated our research with the USCG Head Quarters (USCG HQ), Washington, DC, the custodian of USCG cutter histories. The HQ historian does not document the cutter incidents in 1990. Additionally, we reviewed the January and February 1990 USCG Chronology of monthly events. The chronology does not document the 1990 boat accidents/civilian deaths as described by [the Veteran]. A review of the Veteran’s military personnel records additionally does not reveal credible supporting evidence of the claimed in-service stressor. In this regard, the personnel records reflect unit commendations in January 1990 and May 1990, administrative remarks, a non-judicial punishment (NJP) for fighting, an alcohol incident, and a Naval Alcohol Rehabilitation Center document, dated in August 1991, reflecting a plan/commitment to attend alcoholic anonymous meetings for the next 12 months. The Board observes that the unit commendations do not show the occurrence of the claimed in-service stressor. Further, it is noted that the administrative remarks, to include those related to alcohol use, and the NJP show an unspecified pattern of misconduct; the evidence, however, does not reveal that such pattern of misconduct was due to or stems from the claimed in-service stressor. Indeed, the Board takes judicial notice that the National Minimum Drinking Age Act of 1984 became effective in Alaska on November 1, 1984. Thus, such administrative remarks related to alcohol use, and its effect, can be inferred as counseling for underage drinking. Next, VA treatment records reveal that the Veteran started complaining of PTSD symptoms in March 2013. A subsequent progress note reflects that the Veteran reported that he had a period of years after leaving the Coast Guard when he drank heavily, had many bar fights, a driving while intoxicated (DWI) incident, and multiple car accidents. VA examination report, dated in April 2020, reflects that the Veteran was diagnosed with PTSD with alcohol use disorder. No other diagnosis was rendered by the examiner. The examination report additionally shows that the Veteran reported that after his claimed in-service stressor occurred, he started to drink heavily and to have trouble sleeping at night, to include having nightmares. The Veteran additionally stated that he was 18 at the time and that he did not receive any mental health treatment or psychiatric medication. Following service, the Veteran reported attending alcoholics anonymous due to car wrecks and DWI incidents; he denied any past history of using psychiatric medication or being hospitalized psychiatrically; and he denied any past suicide attempts, but said he "may have come close.” Given the above, the Board finds that the Veteran is unable to satisfy the third prong of service connection for PTSD, requiring credible supporting evidence that the claimed in-service stressor occurred. As noted above, service connection for PTSD requires: (1) Medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In the Veteran’s case, the first and second prong are arguably met, as the record shows a diagnosis for PTSD and a link, established by medical evidence, between the current symptoms and the claimed in-service stressor. The third prong, however, is not met. As to this, 38 C.F.R. § 3.304(f) precludes use of “after-the-fact medical nexus evidence” to establish “actual” occurrence of an in-service stressor. Moreau v. Brown, 9 Vet. App. 389, 394-96 (1996). The requirement in 38 C.F.R. § 3.304(f) for “credible supporting evidence” means that a veteran’s testimony or lay statements, by themselves, cannot, as a matter of law, establish the occurrence of a noncombat stressor. Id. Here, it is not argued, and the record does not reflect, a combat-related stressor or combatant status and, thus, the Veteran’s lay statements, by themselves, cannot establish the occurrence of his noncombat stressor. Moreover, the Veteran has not argued, and the record does not reflect, that his PTSD claim is based on an in-service personal assault. See 38 C.F.R. § 3.304(f)(5). The Board has given consideration to the Veteran’s reports of experiencing in-service and post-service symptomology, to include sleep impairment and/or nightmares, of an acquired psychiatric disorder, as related to the claimed in-service stressor. While the Veteran is competent to offer lay statements regarding mental health symptoms at any time, here, as a lay person, under the facts of this case, the Veteran does not have the requisite medical training or credentials to be able to render a competent medical opinion concerning the etiology of the currently diagnosed mental health disorder. The DSM-5 cautions that it is “not sufficient to simply check off the symptoms in the diagnostic criteria to make a mental disorder diagnosis.” Rather, clinical training is required “to recognize when the combination of predisposing, precipitating, perpetuating, and protective factors has resulted in a psychopathological condition in which physical signs and symptoms exceed normal ranges.” The “purpose of DSM-5 is to assist trained clinicians in the diagnosis” of various mental disorders. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify”); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness); see also Waters v. Shinseki, 601 F.3d 1274, 1277 1278 (Fed. Cir. 2010) (concluding that a veteran’s lay belief that his schizophrenia and anti-psychotic drugs to treat it had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA’s duty to seek a medical opinion on the issue). Accordingly, his opinion, to this extent, is given no probative value because he lacks the requisite medical expertise to formulate a medical opinion on whether any in-service or post-service symptoms represented the onset of an acquired psychiatric disorder. The Board has also considered the evidence submitted by the Veteran, to include the circumstantial (e.g. administrative remarks) and direct (e.g. lay reports and buddy statement), however, the Board assigns greater probative value to the July 2014 JSRRC response finding, after several inquiries into separate databases, no supporting evidence, document, or information of the claimed in-service stressor. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). In this instance, the Veteran’s claimed in-service stressor of coming into close contact and witnessing dead bodies while on duty is of a sort event that would ordinarily have been recorded in a chronology or history of a ship, in which case the Board may legitimately infer from the absence of such a record that it did not occur. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (noting that under Fed. R. Evid. 803(7), “the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded”); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (noting that the Federal Rules of Evidence, including section 803(7), while not controlling in the adjudication of VA benefits claims, provide “useful guidance,” and quoting federal case law to the effect that “[t]he absence of a record of an event which would ordinarily be recorded gives rise to a legitimate negative inference that the event did not occur” (internal citation omitted)). Thus, the Board may infer from the silence in the histories or chronologies of the USCGC SWEETBRIER that the claimed event did not occur during active service if it finds that the histories or chronologies are complete “in relevant part,” and that the claimed event would ordinarily have been recorded had they occurred. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring). Such a finding constitutes “contradictory” evidence weighing against the credibility of a claimant’s testimony. Id. Here, the July 2014 JSRRC response does not indicate an incomplete or unavailable chronology or history for the USCGC SWEETBRIER. Indeed, the JSRRC response reveals that all relevant chronologies and histories were reviewed but were negative for the event as described by the Veteran. In this instance, it defies belief that the alleged event would not have been recorded in a ship’s history or chronology given the significant injury and death the Veteran says he witnessed on duty. Therefore, in consideration of the above, coupled with the decades intervening service separation and the first documented complaint, which was first made decades after service separation when the memory is less reliable, the Board assigns greater probative value to the July 2014 JSRRC response. Additionally, greater probative value is given to the Veteran’s post-service medical records, which contain no objective finding for an acquired psychiatric disorder, until decades after separation from service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom., Forshey, 284 F.3d at 1358. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.