Citation Nr: 21024838 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 13-08 988 DATE: April 26, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depressive disorder not otherwise specified (NOS), is remanded. FINDING OF FACT The evidence does not show that the Veteran had a diagnosis of PTSD that was incurred in, or resulted from, active duty service. CONCLUSION OF LAW The criteria to establish service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1959 to August 1966. The Veteran unfortunately died in July 2019. The Appellant is his surviving spouse and has been properly substituted for the Veteran with respect to the claims addressed herein pursuant to 38 U.S.C. § 5121A. See 4/28/20 Letter; 7/24/20 Administrative Decision. This case originally came before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied to reopen the service connection claim for an acquired psychiatric disorder, specifically PTSD. The Board reopened and remanded the service connection claim in September 2016. The claim was most recently before the Board in April 2019. The Board notes that the Veteran initially filed a service connection claim for PTSD in February 2005, and a petition to reopen that claim in September 2009. The Board, in its September 2016 remand, broadened the issue and recharacterized it as an acquired psychiatric disorder, to include PTSD. The Board now separates out the PTSD claim as the evidence consistently reflects that the Veteran did not have a diagnosis of PTSD, as discussed below. A claim for other acquired psychiatric disorders is remanded herein. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and Appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Claim Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 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 incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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, supra. 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. 1. Entitlement to service connection for PTSD The Appellant claims that service connection for PTSD is warranted. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (amended as the DSM-V)); (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). Evidence Service treatment records (STRs) reflect that the September 1963 extension and August 1966 separation examination reports reflect a normal psychiatric evaluation. In a February 2005 statement, the Veteran stated that he served on U.S. Navy submarines from 1959 to 1966 in Vietnam as interior communications electrician. He was in the Vietnam War zone from October 8, 1963, to December 3, 1963, on the U.S.S. Swordfish; and from March 15, 1966, to August 15, 1966, on the U.S.S. Wahoo. He stated that there were “many hair-raising events that happened on both the U.S.S. Swordfish and the U.S.S. Wahoo.” While on the U.S.S. Swordfish, one of the stern planesmen accidentally pushed the controls all the way forward, causing the submarine to dive several hundred feet below “test depth,” after which point submarines were crushed. They were at least at 60 degrees down angle before the cook climbed up to the auxiliary manifold and blew the bow buoyancy tanks against the officer-on-duty’s orders. Additionally, while on the U.S.S. Swordfish, they were on patrol off Hainan Island when they began hitting the bottom of the ocean. They hit about 13 times and were forced above the surface of the water before they could stop. There were loud scraping sounds running down the sides of the submarine, and all the outboard sonar heads and underwater log were bent over like a braided nail. His job was to go down in the bilges to sheer it off and stop any water from entering. All he could think about was that log shaft skewering him as he bent over it and tried to cut it off with a steel cutoff valve. Since then, he had been “super scared of confined places.” Coming back from Australia, they almost hit an uncharted mountain, and barely scaled up to periscope depth before they were able to get over it. He never got used to things like that. The third incident occurred while on the U.S.S. Wahoo when he was “way out against the hull,” doing some work where the wiring ran along the engines. He got jammed in behind the pipes and wiring and could not get out. Because the noise was deafening and the engines never shut down on patrol, no one could hear him, and all he could think about was being found there when “the stench of [his] rotted body began to show up.” He finally managed to back out somehow. The worst incident, which occurred while he was on the U.S.S. Wahoo, was when there was an explosion and fire when they were on patrol off Vietnam in the war zone. He was on watch with a few others in the stern area when a very loud explosion sounded. The forward watertight door flew open, and an engineman came running through the compartment, holding his side and screaming that they had been hit and that there was a fire. They helped carry him, and the Veteran grabbed the first aid kid and tried to stop the blood flowing out of the huge hole in the side of his stomach. They tried to bandage him up as best they could, but he kept thinking the engineman was going to die in their hands. He still thought about how that engineman and how much pain he was in. The whole end of the submarine was choked with the horrible smell of burning fuel oil from the engines, and he could not see his hand in front of his face. In the dark, they were instructed over the speakers to surface, although they were in the war zone. They all crawled out to get air and fell on the topside, gasping for breath. He was assigned to go back down to “rig up the Red Devil blowers” in total blackout. He wrestled the blowers up to the deck and got them running to clear the air down below. He also believed that he was exposed to herbicide agents as they would surface and snorkel for a few hours while only a few miles off the coach. He believed that they were sucking in herbicide agents, which was a floating mist being drawn right into the main induction and throughout the submarine for months every night. He stated that his first marriage was not successful despite lasting for 10 years. His ex-spouse stated that he was not a good husband, although he tried to be what she wanted. They argued a lot, he drank a lot, and he got angry and hit her a few times. He got married again to a very quiet person who never upset him. He got depressed about his businesses not being successful. He stated that “the stress of being down in a submarine for two or three months at a time with no outside contact” made him feel a little deviant, like he “had to go out and hit something, or party forever, eat the wrong food, drink a lot and care less.” He reported currently being on antidepressants. VA treatment records reflect a negative PTSD screening test in January 2007, and a positive PTSD screening test in September 2008. A September 2009 VA treatment record reflects that the Veteran was evaluated for PTSD. He reported fire and smoke in the submarine, hitting the bottom, navigating into an underwater mountain, mishaps with submerging, and almost getting crushed when doing a repair in the engine room, which was a “markedly frightening experience and could very have been fatal.” The psychiatrist found that the Veteran had chronic depressive syndrome and noted a provisional diagnosis of rule out PTSD that was severely exacerbated by health issues and loss of autonomy. As part of his September 2009 Statement in Support of Claim for PTSD, the Veteran listed a series of stressors, which were very traumatic. The first was while on submerged patrol in the Pacific on the U.S.S. Swordfish in 1961 when the stern planes helmsman pushed the controls forward, causing the submarine into an immediate crash dive. He was thrown to the forward bulkhead of the crew mess and was unable to move. All the loose equipment fell down on him, and he “knew [he] was going to die when [they] went below test depth of 1200 feet,” at which point they would all be crushed as the hull collapsed and would drown as they were totally unable to escape. In 1962 while on patrol in the South China Sea aboard the U.S.S. Swordfish, the mast cables through the hull fittings in the sail began leaking sea water into the control room. His job was to go topside and repair the cable inside the sail. He went topside amidst the very rough seas and had to climb along the deck and into the sail in high winds and surf. He was almost washed overboard. It took over a half an hour of being tossed back and forth in the sail to get the cable repaired. He had to them go back outside to crawl back down below. He was “never so scared in [his] life” and could still see himself being washed overboard and lost at sea. In 1965 while on patrol off Hainan Island, Vietnam, while aboard the U.S.S. Wahoo, he experienced the worst and most deadly stressor when the engine room air compressor blew up and started a diesel oil fire inside the submarine. His good friend ran through the maneuvering room hatch into the stern room, having been hit by flying metal resulting in a big hole in his side. They did what they could to help, but the Veteran had to get back to the controls to answer coming signals. When he went into maneuvering, he could not see anything and could not breathe. He tried to restart the engines, but the huge breaker exploded right off the power panel. By this time, the boat had been able to get to surface, so they could open the stern room escape hatch and crawl out. He was then ordered to go down into the maneuvering bilges to get out and set up the Red Devil blower to help evacuate the smoke from below. He stated that it was “a wonder [they did not] get bombed by the enemy” as they were an “easy target.” He also noted almost hitting an underwater mountain at full throttle when submerged on the way through the South Pacific; depth charged in the Russian Sea of Okhotsk on patrol; hitting the bottom over a dozen times off of Vietnam, which required emergency repairs and almost drowning and which resulted in a fear of flooding through the underwater log valve; being left behind when his buddies got transferred to the U.S.S. Thresher, which sank with all hands on board; and sinking by the stern on operations with an officer who did not know the difference between bow buoyancy and stern tanks. The Veteran stated that he would get crazy when they were in port, He was chased by cops with guns and escaped onto the base. While in foreign ports, he did “some really crude and evil things,” like stealing, fighting, mistreating women, “raising hell,” drinking, and falling down in public to be picked up by the Shore Patrol. He stated that as a result, he had a difficult time relating completely to others as he did not want to get hurt again, had thoughts of the fire on the submarine, got into fights due to his uncontrollable anger, got depressed, avoided things, avoided contact and friendships if he could, did not like being involved with anything to do with war, could not remember dates and details of stressors, became pre-occupied and complete forgot what he was asked to do, had difficulty concentrating, and got confused. A December 2009 VA treatment record reflects an assessment of PTSD, although it does not specify whether it was based on the DSM-IV or DSM-5 criteria. In June 2010, the Veteran stated that his treating physician “fully confirmed the evidence of PTSD” when they met last year. A September 2010 VA examination report reflects review of the Veteran’s claims file and the episodic treatment for depression with medication from various VA facilities. The Veteran reported being stressed during service when someone pushed the controls too far forward and his submarine dove quickly, and having to perform his job as an interior communication electrician topside during rough seas. Additionally, there was a fire in another compartment, and smoke began to fill his compartment. A friend came through with an injury to his side due to the explosion, and he and those in the compartment with him had to wait for the submarine to surface before they could leave their compartment. Once topside, he was ordered below decks to retrieve equipment necessary to blow the smoke out, which was part of his job. There was also a time when the submarine came close to hitting an underwater mountain. He also became wedged between the wall and machinery he was working on for a short time until he figured out how to get out. A submarine, which he was supposed to be on, sank. He seemed to find most of the activities for which he was responsible stressful, as well as everyday problems common to submarines. Although the examiner found that the Veteran’s reported stressors met a criterion for a DSM-IV diagnosis of PTSD, the Veteran did not meet the remaining criteria. Therefore, he did not meet the DSM-IV criteria for a diagnosis of PTSD, but was instead diagnosed with depression NOS secondary to financial losses and stressors. The Veteran exhibited minor and apparently reactive depressive symptoms as well as histrionic and narcissistic personality features. His current diagnosis, as well as his personality features, were less likely than not caused by, the result of, or aggravated by service. A February 2011 VA treatment record reflects a provisional axis I diagnosis of PTSD, and a March 2011 VA treatment record reflects an assessment of depression and PTSD per the Veteran’s self-report. In his March 2013 VA Form 9, the Veteran contends that he was diagnosed with PTSD in September 2009, and that every one of the criteria for PTSD was identified as “yes.” The Veteran noted that medicine was prescribed for him for anger control, anxiety, and depression/moods from approximately 2001 to 2004. VA treatment records reflect a positive PTSD screening test in February 2014. An April 2014 VA treatment record reflects the Veteran’s report of PTSD symptoms, which he reported began in service as his job was dangerous and he became wedged between the engine and the hull of the ship. His submarine also was depth-charged a few times and was on dangerous covert missions. Many times he did not know where they were going or what they would be doing, which was very stressful. There was an underwater explosion and fire while off the coast of Vietnam. They had to surface in the line of fire due to the smoke and fire. November 2014 and March 2016 VA treatment records reflect that the Veteran was treated for depression and rule out PTSD due to trauma experienced on submarines. The axis I diagnosis was depressive disorder NOS, rule out PTSD, and a breathing-related sleep disorder. A March 2016 VA social work note reflects an assessment of PTSD. A May 2016 social work note reflects an assessment of a history of depressive disorder and PTSD. An August 2016 VA treatment record reflects an axis I diagnosis of depressive disorder NOS, rule out PTSD, and a breathing-related sleep disorder. A June 2017 VA treatment record reflects a DSM-5 diagnosis of unspecified depression. A subsequent June 2017 record reflects a self-reported diagnosis of PTSD. He was diagnosed with PTSD, panic attacks, and depression. In February 2018, the Veteran submitted deck logs for the U.S.S. Wahoo from around April 1965. On April 8, it was noted that they had been underway when an explosion and fire in the engine room occurred, and they surfaced on course. The cause of the fire was determined to be the moisture separator on the discharge line of the high-pressure air compressors exploding and rupturing the engine lube oil lines. There was damage to the engines, air compressors, and vapor compressors, as well as injuries to personnel. Two personnel were named specifically, neither of which was the Veteran. A February 2019 VA treatment record reflects an axis I diagnosis of depressive disorder NOS and rule-out PTSD. A December 2020 VA examination report reflects review of the Veteran’s claims file. The examiner found that the Veteran did not have PTSD or any other mental disorder confirming to the DSM-5 criteria, although the stressors described by the Veteran were adequate to support a diagnosis of PTSD. Specifically, although his identified stressors were sufficient to meet Criterion A and he outlined his symptoms in great detail, the September 2010 VA examiner found that the Veteran did not meet the DSM-IV diagnostic criteria for PTSD and instead diagnosed him with depression NOS secondary to financial losses and stressors. Subsequent mental health evaluations and/or mental health history and physicals did not diagnose the Veteran with PTSD according to the current DSM criteria. Rather, the Veteran was diagnosed with depressive disorder NOS and rule out PTSD or a “provisional” diagnosis during other mental health evaluations. Additionally, there was no documented complaint of mental health concerns until 2006, at which time the Veteran’s primary complaint was psychosocial stressors causing depression. He also denied significant trauma-related anxiety symptoms related to service and was diagnosed with depressive disorder NOS, rule-out major depressive disorder. The Veteran’s endorsement of PTSD-related symptoms was inconsistent with a negative November 2007 PTSD screener and positive PTSD screeners in September 2008 and February 2014. However, even when he reported PTSD symptoms, providers did not consistently diagnose the Veteran with PTSD. The Veteran received psychotherapy with a primary focus of treatment being depression and adjusting and coping to medical concerns, as well as a desire to cope with PTSD. He had diagnoses of PTSD from social work treatment sessions, but these were not mental health evaluations with detailed explanations of how the Veteran met PTSD diagnostic criteria. Therefore, in summary, the examiner stated that there was a lack of a definitive PTSD diagnosis, only rule-outs and provisional diagnoses, in mental health evaluations; a previous VA examiner determined that the Veteran did not meet DSM-IV diagnostic criteria for PTSD; inconsistent PTSD symptoms screeners; initial mental health engagement specifically and expressly denied trauma-related anxiety symptoms related to service; no documentation of complaints, treatment, or diagnosis for 40 years following separation from service; and a focus unrelated to PTSD in the most recent psychotherapy notes. Analysis Based on a review of the evidence of record, the Board finds that the evidence weighs against the service connection claim for PTSD as there is no evidence of a current diagnosis of such. In this case, STRs do not demonstrate any complaint, treatment, or diagnosis of PTSD or any related symptoms. However, the Veteran provided detailed accounts of incidents during service, which he contended were traumatic. Regardless, the competent evidence of record does not demonstrate a current diagnosis of PTSD. Although the Veteran contended that he had been diagnosed with PTSD, the evidence does not reveal a PTSD diagnosis that conforms to the DSM-IV or DSM-5 criteria. Rather, the VA treatment records reflect diagnoses of rule-out PTSD and provisional diagnoses of PTSD; and assessments of PTSD that were based on the Veteran’s self-report, were from social work treatment sessions and not mental health evaluations, or did not specifically indicate whether they were based on the DSM-IV or DSM-5 criteria. Moreover, the September 2010 and December 2020 VA examiners both found that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-IV or DSM-5 criteria, respectively. Specifically, the September 2010 and December 2020 VA examiners stated that, although the Veteran’s reported stressors were sufficient to meet Criterion A, he did not meet the remaining DSM-IV or DSM-5 criteria, respectively, for a diagnosis of PTSD. Therefore, there is no medical evidence to confirm that the Veteran was actually diagnosed with PTSD that conformed to the DSM-IV or DSM-5 criteria during the appeal period. Service connection under any theory requires a current diagnosis or disability. In this case, the evidence does not reflect a diagnosis of PTSD at any point in time. See Brammer, supra. The Board considered the lay evidence in this case. As a layperson, the Veteran was competent to report matters within his own personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, he was competent to report symptoms, but he was not competent to provide a clinical diagnosis of PTSD or state that his psychiatric symptoms were due to PTSD, as such a determination is medical in nature and requires medical expertise to make, and there is no evidence that the Veteran had such medical training. Thus, the Veteran and Appellant have not presented competent evidence showing that the Veteran had a current diagnosis of PTSD. See 38 U.S.C. § 5107(a)(“[A] claimant has the responsibility to present and support a claim for benefits.”); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant’s general evidentiary burden to establish all elements of the claim). The Board acknowledges that the Veteran had presented with psychiatric symptoms. However, the weight of the evidence reflects that the Veteran’s symptoms were not due to PTSD, but rather depression. Service connection for an acquired psychiatric disorder other than PTSD is remanded below. For this reason, the Board finds that the preponderance of the evidence is against the service connection claim for PTSD. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depressive disorder NOS, is remanded. Unfortunately, the Board must again remand the acquired psychiatric disorder claim in order to obtain an adequate medical opinion. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). In April 2019, the Board remanded this issue with instructions to (1) obtain and associate with the claims file all outstanding VA treatment records, (2) appropriately develop and verify all claimed in-service stressors with the appropriate service departments and/or records custodians, (3) provide a VA PTSD examination by a VA psychologist or psychiatrist, and (4) readjudicate the remanded claim. In September 2020, the RO requested deck logs from the National Archives and Records Administration (NARA) for the U.S.S. Sargo from August 6, 1960, through February 13, 1962; and for the U.S.S. Swordfish from August 10, 1962, through October 9, 1964. In October 2020, NARA responded with links for the deck logs for the U.S.S. Sargo from August 1960 to February 1962 and for the U.S.S. Swordfish from August 1962 to December 1962. It explained that the remaining deck logs for the U.S.S. Swordfish were in the process of being digitized and were currently unavailable. The RO was encouraged to periodically check the catalog for new uploads. The RO should again attempt to verify if there are any updated deck logs available for the U.S.S. Swordfish, and, if so, obtain and associate them with the claims file. Any additional corroborated stressors may help to support his claim. Moreover, another medical opinion is needed. The Veteran was provided a VA examination in December 2020, at which time the examiner found that the Veteran did not have PTSD or any other mental disorder conforming to the DSM-5 criteria. Unfortunately, although the examiner listed the relevant evidence, including a diagnosis of depressive disorder NOS, he only provided a negative opinion specifically regarding PTSD. Despite the Board’s instructions, the examiner did not address the diagnosis of depressive disorder NOS, explain why it was not presently showing despite being previously diagnosed, or discuss its etiology. As such, an addendum is required in order to more completely address the etiology of the Veteran’s claimed acquired psychiatric disorder, to include depressive disorder NOS. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact again the National Archives and Records Administration whether there are additional deck logs available for the U.S.S. Swordfish (SSN-579) from January 1963 through October 1964. In October 2020, NARA indicated that the deck legs were in the process of being digitized. *All attempts made to obtain the aforementioned records from the U.S.S. Swordfish must be documented in the record. If no additional records are available, a formal documentation showing unavailability of the records should be associated with the claims file.* 3. Afterwards, obtain another opinion to the etiology of the Veteran’s claimed acquired psychiatric disorder, to include depressive disorder NOS. The claims file, and a copy of this remand, will be available to the examiner. The examiner is asked to respond to the following: (a) Identify all current acquired psychiatric disorders found to be present since the date of the Veteran’s claim (September 24, 2009), including a diagnosis of depressive disorder NOS. *If any previously diagnosed psychiatric disorder is not presently shown, explain why.* (b) For each psychiatric disability diagnosed during the appeal period, to include depressive disorder, and regardless of whether it has since resolved, provide an opinion as to whether it at least as likely as not (50 percent or higher probability) had its onset during active duty service or is otherwise related to it, to include the verified stressor of an explosion and fire aboard the U.S.S. Wahoo in 1965 and/or any additional stressor(s) verified by the RO prior to the examination. *In addition to reviewing the entire claims file, the examiner is asked to specifically consider the Veteran’s statements describing in-service stressors. See 2/11/05 statement; 3/21/05 military personnel record; 9/24/09 VA 21-0781; 6/1/10 correspondence; 6/27/17 military personnel record; 2/13/18 military personnel record (deck logs for the U.S.S. Wahoo); 10/31/20 Third Party Correspondence (NARA response).* 4. Thereafter, readjudicate the remanded claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee, 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.