Citation Nr: 21022823 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-35 197 DATE: April 19, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for an acquired mental disorder other than PTSD is remanded. FINDING OF FACT The Veteran’s claimed stressors, which are unrelated to hostile military or terrorist activity, are not confirmed. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1132, 5107; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On initial review of this appeal, the Board reopened the previously denied claims and remanded them to the Agency of Original Jurisdiction (AOJ) for additional development. See 09/05/2018 BVA Decision. As discussed further below, the Board finds substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Applicable Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Lanyo v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the 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. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. Entitlement to service connection for PTSD is denied. Legal Requirements In addition to the general requirements for service connection set forth above, there are particular requirements in 38 C.F.R. § 3.304(f) for establishing PTSD. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010) (“Simply put, while section 3.303 mandates that there be a link between a current disability and military service, section 3.304(f) sets forth the evidence necessary, in the context of claims for PTSD disability compensation, to establish that link.”). Entitlement to 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 claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125. Discussion As noted earlier, the Veteran’s claims were reopened under the legal requirements for new and material evidence, which provide that any evidence added to the record is presumed credible. Now that his claim is reopened, that is no longer the case. All evidence must be tested for credibility and weight. The Veteran’s claim was reopened on the basis of two claimed stressors. First, he asserted that in October 1990 while based in Nevada, he found a female corpse on the sidewalk in front of a casino. He informed the casino staff, but he did not remain on the scene until the police arrived; he did see an ambulance arrive. He shared his experience with his roommate and other friends. See 10/02/2016 Hearing Transcript. His other claimed stressor reportedly occurred while he was performing duty on a bombing range. The Veteran asserted that there was unexploded ordinance all over the range, and that once he almost detonated a round by running over it. On another occasion he observed a sailor who wanted out of the service pick up a firebomb that detonated and killed him. His last stressor was that while working on the range two F-16s made a bomb run and dropped ordinance. The troops were not informed that there would be a mission that day. The bombs were practice rounds but still would have inflicted serious injury had they struck someone. See 05/19/2010 VA 21-0781. Per the remand directives, the AOJ made several inquiries in an effort to verify the Veteran’s claimed stressors. The local medical examiner’s office in NV asked for additional information to aid a search, to include the name of the deceased female the Veteran reportedly discovered, as their data base entries were based on name and date. See 07/29/2019 Email Correspondence. The Veteran, of course, never claimed to have the name. The JSRRC advised that a search of the records available to them did not reveal any information related to the Veteran’s claimed stressor. The AOJ was advised to contact the Naval Facilities Engineering Command, Office of the Historian, as that entity maintained the records of the unit to which the Veteran was assigned. See 02/18/2020 Correspondence. The response noted that a search of the available records did not disclose any of the specific incidents reported by the Veteran, but their records did not note that the Veteran’s unit returned from a deployment to Okinawa in July 1990, and that part of the unit redeployed to Saudi Arabia in September 1990 in support of Operation Desert Shield/Desert Storm. See 03/17/2020 Third Party Correspondence. The AOJ also made numerous requests of the Naval command for any treatment or other records extant but no response or records was received. See e.g., 07/02/2020 Final Attempt Letter. The Veteran was informed of all attempts and the results. See 06/16/2016 Subsequent Development Letter. The Veteran’s claimed stressors are not related to combat or terrorist activity. As such, they must be verified. See Arzio, 602 F.3d 1343, 1347. The Board notes the lay statements submitted by the Veteran’s associates. See 07/08/2014, 03/28/2015 VA Forms 21-4138. They do not serve to verify the claimed stressors, however, as they are based on what the Veteran told them. This alone does not categorically render the statements non-probative, as there are some cases where second-hand reports might be sufficient to corroborate the events in question. Here, however, the lay statements crucially neglect to mention when the Veteran relayed the information regarding his stressors. (Emphasis added). For example, evidence that describes events close in time to their occurrence might hold more weight than those relayed years after. Moreover, while the lay statements in this case describe the Veteran’s demeanor and mental state while he was in service, they do not provide a description of the claimed stressors but rather note the details of the Veteran’s discharge. Substantively, the lay statements are not sufficiently on-topic to verify the claimed stressors in this case. The Board finds further that the AOJ expended all reasonable efforts to verify the Veteran’s claimed stressors. In the absence of a confirmed stressor, the AOJ was not required to arrange an examination to determine if the Veteran has a confirmed diagnosis of PTSD that is linked to a confirmed stressor. As an in-service stressor is not here established, the Board is constrained to find that the preponderance of the evidence is against the claim. 38 C.F.R. §§ 3.303, 3.304(f). Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 53; see also 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for an acquired mental disorder other than PTSD The Veteran’s claim is deemed to have include all acquired mental disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran’s VA outpatient records note diagnoses of unspecified depressive disorder and unspecified trauma and stressor related disorder, to name two. See 10/19/2020 CAPRI, P. 8. As set forth above, the requirements for proving service connection for an acquired mental disorder other than PTSD are not as stringent as those for proving a PTSD claim. For a confirmed currently diagnosed acquired mental disorder that meets the requirements of the DSM, a claimant need only show that the disorder had onset in active service or is otherwise causally connected to active service. Moreover, the instant claim was pending before August 2014 and thus DSM-IV is the applicable criteria. Although the Veteran’s lay statements and testimony, and his other supporting lay statements were not sufficiently probative to verify his claimed stressors, the Board finds that they are sufficient to trigger the low threshold for an examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also 38 C.F.R. § 3.159(c)(4)(iii). Hence, a remand is indicated so that the AOJ may arrange an examination to assist the Veteran. The matters are REMANDED for the following action: 1. The AOJ shall ensure that all relevant treatment records generated since October 2020 records are obtained added to the claims file. (Continued on the next page)   2. After the above is complete, arrange an examination of the Veteran by an appropriate mental health examiner. Ask the examiner to identify all acquired mental disorders manifested by the Veteran that conform to the diagnostic criteria of DSM-IV. Then, the examiner is to opine on whether it is at least as likely as not (at least a 50 percent probability) that either or all currently diagnosed acquired mental disorder(a) had onset in active service or is otherwise causally connected to active service. A full explanation must be provided for all diagnosis(es) and opinions rendered. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.