Citation Nr: 21022771 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-42 900 DATE: April 19, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT An in-service stressor sufficient to cause current PTSD has not been verified. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1101, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1981 to July 1985. 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) The Veteran contends that during active service he was welding a tank and later that tank crashed, killing servicemembers aboard, for which he remains concerned that his welding work contributed to the accident. This contention forms the basis of the Veteran’s claimed stressor for PTSD. After a thorough review of the evidence, the Board finds that the Veteran’s stressor is not verified and accordingly entitlement to service connection for PTSD 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 in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). Under 38 C.F.R. § 3.304(f), specific provisions apply under varying circumstances, which the Board finds are not present in this case: Subsection 1 relates to PTSD diagnosed during service, which the evidence here does not support; Subsection 2 relates to combat with the enemy, which the evidence here does not support; Subsection 3 relates to a stressor related to fear of hostile military or terrorist activity, defined as “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,” which the evidence here does not support; Subsection 4 relates to prisoners of war, which the Veteran in the present case was not; and Subsection 5 relates to in-service personal assault which is not the contention here. Accordingly, in the present case, the Veteran’s claimed stressor must be supported with credible supporting evidence. The Veteran served from July 1981 to July 1985 including domestic posts and in Japan. The Veteran’s Form DD 214 records that he was a metal worker and does not reflect combat deployment, nor does the Veteran contend that he served in combat. The Veteran submitted the claim for PTSD in October 2010. The Veteran contends that he was welding and burned himself which working the rails of a tank which subsequently later the same evening ran off an embankment or cliff causing fatalities, at least one of whom was a friend of the Veteran. See January 2012 and August 2012 statements, e.g. The Veteran’s service treatment records (STRs) document a welding injury described as right forearm burn in June 1982. The December 2014 Form VA-9 includes a statement by the Veteran that he had friends killed in the tank accident but he can’t recall names because his “mind [is] not right.” A January 7, 2017 CAPRI record notes that the Veteran related how he had been working in Virginia “years ago” on a machine that later a coworker used and had died. This was listed under “non-military trauma,” in the appointment notes. CAPRI records dated December 15, 2017 record that the Veteran said two men died in the tank accident that forms the basis of his claimed stressor. The Veteran testified at a May 2018 Board hearing where he stated that PTSD symptoms started around 2010 when he was seeking treatment at VA. The Veteran explained how he thought the tank accident was his fault and that four people died. The Veteran stated that he witnessed the tank accident. The Veteran also mentioned someone who got shot in the head. The evidence of record notes many instances where the Veteran recounts being upset in reference to his son’s death in 2004; his son was shot in the head per the Veteran. A May 2019 VA memo states that VA has not received adequate information to support verification of the claimed stressor by the Joint Services Record Research Center (JSRRC). VA received archived records for the Veteran’s tank battalion at Camp Pendleton from January 1982 to June 1983. These records do not document a tank accident involving deaths of servicemembers. At the May 2019 VA PTSD examination, the examiner confirmed a diagnosis of PTSD and polysubstance use disorder. The claimed stressor was relayed by the Veteran as he had welded a track and subsequently one night a tank was in an accident, with fatalities including a friend, and the Veteran felt responsible for this accident due to a possible welding error. The examiner confirmed this stressor met the criteria to support a diagnosis of PTSD. The examiner noted this claimed stressor was not related to fear of hostile military or terroristic activity or personal assault. The Board notes that the examiner checked additional boxes related to stressor number two, but there is not a claimed second stressor listed. The examiner opined that the Veteran had a diagnosis of PTSD that was incurred in-service as a result of the Veteran’s relayed story about his friend dying in an accident for which he felt responsible. The examiner also noted that the Veteran’s polysubstance use disorder was secondary to the PTSD. In October 2020, the Veteran underwent another VA PTSD examination as a result of remand of the claim by the Board in a June 2020 decision. The examiner diagnosed PTSD and alcohol use disorder. The Veteran recounted that he was welding a tank at Camp Pendleton in 1982 or 1983 and he was burned during this work. Later that same evening, the same tank fell off a cliff, killing three servicemembers, and the Veteran reported that he learned of this accident the next morning. The examiner noted that the Veteran’s STRs show treatment for burn injuries in June 1982. According to the Veteran, he subsequently began to feel isolative, anxious, depressed, have insomnia, irritable, and have mild memory loss since the accident which persists to this day. The examiner opined that the Veteran has a diagnosis of PTSD that is at least as likely as not related to the claimed stressor during active service. In an addendum opinion, the examiner explained that the Veteran’s history of depression, cognitive disorder NOS, and personality disorder with borderline features are subsumed in the PTSD. In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support a veteran’s assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). The Court of Appeals for Veterans Claims has held that the regulatory requirement for “credible supporting evidence” means that “the appellant’s testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor.” Dizoglio v. Brown, 9 Vet. App. 163 (1996). While the Veteran recounts a fatal tank accident, the evidence of record does not substantiate this asserted event. Specifically, VA attempted to corroborate the Veteran’s reported stressor, including reviewing the chronological events archive of the Veteran’s Camp Pendleton tank battalion during the period of the claimed accident and around the documented burn to the Veteran’s arm in June 1982, which in some instances he recounts was the same day of the tank accident. The Board acknowledges that VA medical examiners have found the Veteran’s diagnosed PTSD is related to the claimed stressor of the tank accident. As mentioned, under Moreau a medical examiner’s opinion that is based on an unverified stressor and that does not fall under one of the exceptions of 38 C.F.R. § 3.304(f)(1-5), is not sufficient to support a claim for entitlement to service connection. (“…the Court holds that credible supporting evidence of the actual occurrence of an in-service stressor cannot consist solely of after-the-fact medical nexus evidence.”) Moreau v. Brown, 9 Vet. App. 389, 396 (1996). Here, the record does not show that the Veteran was diagnosed with PTSD in service, served in combat, that the stressor related to fear of hostile military or terroristic activity, that the Veteran was a prisoner of war, or that the stressor related to personal assault. The Veteran’s claimed stressor remains unverified. The VA medical professionals who concluded that the Veteran’s current PTSD was due to in-service events, based their opinions upon this unverified stressor. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Consequently, these medical opinions in support of the Veteran’s service connection claim, which were based solely upon the Veteran’s reports of in-service stressors, are of no probative value. Therefore, as the preponderance of the evidence is against service connection for an acquired psychiatric disorder to include PTSD, the benefit of the doubt doctrine does not apply, and the Veteran’s claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Miller, 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.