Citation Nr: 21024114 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-41 577 DATE: April 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), major depressive disorder, anxiety disorder and somatic symptom disorder, is denied. Entitlement to service connection for alcoholism, to include as secondary to acquired psychiatric disorder, is denied. FINDINGS OF FACT 1. The competent, probative evidence of record indicates that there was no in-service psychiatric injury, disease, or event. 2. The competent, probative evidence of record does not show that the Veteran has a psychiatric condition at any point during or in proximity to the appeal period that was caused by or is related to his military service. 3. Alcohol abuse disorders may not be service connected on a direct basis and the Veteran is not service connected for any disabilities such that service connection for alcohol abuse disorder may be awarded on a secondary basis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. § 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for alcohol use disorder have not been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from November 1974 to May 1975. His DD 214 reflects no foreign service and no combat. His military occupational specialty was Basic Sup Admin & Opns Man (stock clerk). These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2014 and March 2015 rating decisions rendered by the Department of Veterans Affairs (VA) Regional Offices (RO) in Nashville, Tennessee and Winston-Salem, North Carolina, respectively. The Board notes that jurisdiction currently rests with the Oakland, California RO. In October 2018, the Veteran presented testimony at a Travel Board hearing held at his local RO before the undersigned Veterans Law Judge (VLJ). A transcript is of record. Addressing the relevant procedural history, this case was most recently previously before the Board in November of 2020 at which time it was remanded for additional development. The case has now been returned to the Board for further adjudication. Service Connection Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran must show: (1) the existence of 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 disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Service connection may be granted when the individual concerned was disabled or died from a disease or injury that was incurred or aggravated in the line of duty during a period of ACDUTRA. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6. The term “in the line of duty” means “an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran’s own willful misconduct.” 38 C.F.R. § 3.1 (m). VA regulations also include specific requirements regarding claims for PTSD. To establish service connection for PTSD, the evidence of record must generally include a medical diagnosis of 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). In addition, the relevant statutes and regulations deem abuse of alcohol to be willful misconduct. As such, service connection may not be granted for an alcohol abuse disorder on the basis of service incurrence or aggravation. See 38 U.S.C. §§ 105, 1131; 38 C.F.R. § 3.301; see also VAOPGCPREC 2-98. However, service connection may be established for an alcohol abuse disorder on a secondary basis if the condition is proximately due to, caused by, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, anxiety disorder and somatic symptom disorder, is denied. The Veteran contends that he has a current psychiatric condition due to his military service. He has specifically asserted “they unearthed a bunch of bodies over there [in Vietnam]” and “I guess it was soldiers, and they put them all in caskets, body parts and stuff, and when they flew them in, you know, we had to unload all that stuff [at Paris Island]. So you know, that was --that’s how the PTSD come in. You know, some of them were in bags. Most of them were in caskets, but, you know, we had to--they actually had us command us, you know, open the caskets. We was trying to get complete bodies together.” See October 2018 Board Hearing Transcript. Therefore, his argument is seemingly that he has been diagnosed with PTSD which he has contended is related to unloading deceased military personnel. The RO previously sent the Veteran a letter in January 2015 asking him to provide details regarding his stressor incidents. In a letter dated in February 2015 the Veteran stated that he was not able to get the evidence that he needed to support his claim because he was in prison, and asked that his case be put on hold. The case was later remanded by the Board so that the Veteran could be provided a new notification letter detailing evidentiary requirements in claims for service connection for PTSD and requesting that he submit a new stressor statement providing details regarding his claimed in-service stressors, including approximate locations and dates of the claimed incidents. A December 2020 subsequent development letter requesting this information was apparently sent to the Veteran by the RO, but no response was received thereafter. There is no evidence that notice of the request for information was not received by the Veteran. None of the correspondence sent to the Veteran in close proximity before or after that correspondence has been returned as undeliverable, indicating that the current address of record is correct. See Ashley v. Derwinski, 2 Vet. App. 62 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). The last returned mail associated with the claims file was returned in March of 2015, more than five years before the December 2020 subsequent development letter was sent. The Veteran has not provided good cause for why he failed to respond to this inquiry. 38 C.F.R. § 3.655 (a). VA’s duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must cooperate in VA’s efforts to obtain evidence needed to adjudicate his claims, including promptly communicating with VA regarding information needed to substantiate his assertions regarding his alleged psychiatric condition. As such, the Board finds that a remand for another opportunity to submit a statement regarding the alleged in-service stressor is not warranted in this case and the Board will decide the appeal based on the current evidence of record. 38 C.F.R. §§ 3.160 (b), (f), 3.655 (b). In that regard, the Board also initially notes that in contrast with the Veteran’s assertions, there is no evidence that the Veteran has received a diagnosed with PTSD based on an in-service stressor. More specifically, none of the Veteran’s treatment records nor the medical evidence of record is indicative of an actual diagnosis of PTSD (although the Board notes that a few records show that PTSD was included in the list of assessments without explanation of the basis for such a diagnosis). The Veteran is competent to report on matters observed within his respective personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he has not been shown to possess the specialized knowledge and training necessary to render an opinion as to the nature and etiology of alleged psychiatric conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, the Veteran’s assertion that he has been diagnosed with PTSD is unfortunately not competent evidence given the absence of any objective supportive evidence and is not credible for reasons that are outlined in detail below. The Board has therefore considered the entirety of the Veteran’s psychiatric picture in deciding this claim. See Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). In this case, the weight of the lay and medical evidence shows no in-service psychiatric injury, disease, or event. The service treatment records are negative for any history or reports of in-service psychiatric issues and show no complaints, findings, or diagnosis during service. In July of 1975 shortly before his departure from active duty for training, the Veteran signed paperwork affirming that, “I do hereby certify that my health has not been adversely effected by this current tour of active duty training”. Thereafter, the record is largely silent for any complaints of or treatment related to any psychiatric issues for several decades following the Veteran’s discharge from service. In June of 2011, more than thirty-five years after leaving ACDUTRA, VA treatment records indicate that the Veteran presented to “establish medical care”. He had a negative PTSD screening and negative depression screening at that time. The Board acknowledges that February 2013 treatment notes authored by a VA examiner indicate an intention, “to decrease symptoms of depression through being engaged in activity”. The Board also acknowledges the October 2018 notation in the Veteran’s VA treatment records that indicates he presented with a request to see a psychiatrist for “c/o PTSD issues”, but notes that that in contrast with a diagnosis of PTSD, the Veteran was evaluated as having a diagnosis of “major depressive disorder, recurrent, moderate severity unspecified anxiety disorder”. In addition, an April 2018 notation in the Veteran’s SSA records is indicative of a diagnosis of “somatic symptom disorder with predominant pain, severe; alcohol use disorder”. Based on the foregoing, the Board acknowledges that the Veteran may have a currently diagnosed acquired psychiatric condition other than PTSD. However, there is no evidence that the Veteran has a psychiatric condition that was incurred or aggravated in the line of duty during the Veteran’s period of ACDUTRA. Overall, the record does not demonstrate that there was an in-service psychiatric injury, disease, or event. Generally speaking, in-service incidents must be verified by some documentation, be it via the Veteran’s military personnel records, service treatment records, or other evidence. In this case, the Board reiterates that there is no such documentation in the record. In addition, the Board emphasizes that there was no documented history of psychiatric complaints or treatment for almost four decades post-service. Significantly, a negative inference may be drawn from the absence of complaints for an extended period, weighing against the possibility of substantiating the Veteran’s assertions that any current psychiatric condition was caused by or is otherwise related to an also unsubstantiated account of having moved deceased bodies over thirty-five years earlier. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, the Board notes that the evidence reflects that there are several issues with credibility in this case. For example, on the Veteran’s September 2020 VA Form 9, he alleged that “I have a severe case of PTSD and it started before I was released from active duty”. However, this directly conflicts with an April 2018 SSA notation recording the Veteran’s assertion that “he was diagnosed with PTSD between 2012-2013”. In addition, May 2019 notations in his SSA records contain medical evaluation findings in which it was stated that, “[t]he beneficiary’s allegations are not consistent. His presentation at exams and subjective reports are inconsistent w/his abilities in the community. He is alleging PTSD but he is not receiving any [medical treatment] or meds. His presentation at the recent CCPE was [within normal limits] w/no severe [mental health symptoms] or limitations observed.” Further, the Board observes that in contrast with the Veteran’s assertion at his October 2018 Board hearing that he was awarded SSA disability benefits based in part on psychiatric symptoms, his SSA records reflect that this award was instead based on a primary diagnosis of “disorders of muscle, ligament and fascia” and a secondary diagnosis of “substance addiction/dependence disorder (drug)”. The Board also observes that following this award, it was noted following an investigation in March 2018 that, “CDI Report notes that the [claimant] has a normal gait and uses no HHAD (unless he is attending a CE exam) and that he is running a lawn care business. Therefore.... it is appropriate to disregard some of the reports from the physical and mental exams because they are based on some inconsistencies and not totally factual.” Further, regarding the alleged in-service incident regarding transporting bodies, the Board notes that at his Board hearing, the Veteran himself asserted that “I don’t know how they found all those bodies” and in response to be asked by the undersigned VLJ where the bodies were being transferred, he again stated “I really don’t know.” In addition, the Veteran answered “no” to the VLJ’s direct question of “were you having nightmares” following the alleged incident, but also stated earlier during the same hearing on the same day that “I’ve been having dreams about that since then”. Given the overall inconsistencies in the lay statements of record in the scope of the other evidence of record, the Board is unable to accept the Veteran’s uncorroborated accounts of in-service events and the sometimes alleged in-service onset of a psychiatric condition as credible. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board notes that the Veteran has not been afforded a VA examination for his alleged psychiatric condition. However, the Board concludes that an examination and medical opinion are not needed to fairly decide this claim as the record contains no competent and credible evidence suggesting that any psychiatric condition the Veteran has is in any way related to his military service. Further, the Board reiterates that the Veteran’s service treatment records are silent for complaints of or treatment for this condition and based on the lack of in-service symptomology, there is no evidence in the record that a VA examination needs to be afforded. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that, where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). In addition, in the absence of any evidence indicating that the Veteran has a psychiatric disability that was incurred or aggravated in the line of duty during a period of ACDUTRA, there is no basis to establish service connection and further analysis is not necessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (remand is unnecessary where it “would result in this Court’s unnecessarily imposing additional burdens on the [Board and the Secretary] with no benefit flowing to the Veteran.”). For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a psychiatric condition, and therefore, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to service connection for alcoholism, to include as secondary to acquired psychiatric disorder, is denied. As stated above, VA is prohibited by statute from paying compensation for a disability that is a result of the veteran’s own alcohol or drug abuse which means that service connection may not be afforded on a direct basis. Additionally, while a veteran may be entitled to compensation if his or her alcohol or drug abuse is secondary to or is caused by or is aggravated by a primary service-connected disorder, in this case, the Veteran is not service-connected for any conditions. Therefore, the Veteran’s alcohol dependence cannot be caused by a service-connected disorder, and thus, service connection for any kind of alcohol use disorder on a secondary basis must be denied as a matter of law. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, 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.