Citation Nr: 21027173 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-44 910 DATE: May 4, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran has been diagnosed with PTSD. 2. The Veteran's PTSD is not medically linked to an in-service stressor, and his claimed stressor has not been verified with credible supporting evidence. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1974 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2021. A transcript of the hearing is of record. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). 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). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). PTSD The Veteran claims service connection for PTSD. In this regard, he states that he was nearly cast overboard the ship he was serving on, the USS Hassayampa, during a storm. More specifically, in February 1976 during Tropical Storm Lorna he was on midwatch when a wave came over the side of the ship and nearly swept him overboard. He caught the lifelines underneath his arms, which was all that stopped him from going into the water. His legs and torso were over the side of the ship. He states it was pitch black and he was "scared to death." It took "a few moments for [him] to gather [his] composure and get the nerve to release [his] grip on the lifelines and pull [himself] back on board the ship[;] it seemed like an eternity." He adds that several other sailors were "washed over the side only to pull themselves back aboard with their lifelines with the help of their Shipmates." See November 2016 VA Form 21-0781a. For the following reasons, the Board finds that service connection for PTSD is not established. To establish service connection for PTSD, there must be 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). With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DMM-V). Diagnoses of PTSD are presumed to have been made in accordance with the DSM criteria. Cohen v. Brown, 10 Vet. App. 128, 139-42 (1997). Concerning the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, there are exceptions in which a claimant's lay testimony alone may establish the occurrence of the stressor. 38 C.F.R. § 3.304(f). These exceptions include when PTSD is diagnosed during service and the claimed stressor is related to that service; when the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat; stressors related to being a prisoner of war; and stressors related to fear of hostile military or terrorist activity (as defined in the regulation). Id. In all these cases, the claimed stressor must be consistent with the circumstances, conditions, or hardships of the veteran's service. Id. Here, the VA treatment records show a diagnosis of PTSD. See February 2015 VA Treatment Record. However, the probative evidence shows that the Veteran's PTSD is not linked to an in-service stressor. The VA treatment records reflect that when he was initially seen for psychotherapy by a psychiatric nurse practitioner, in February 2015, he reported that he wanted help with his PTSD, and felt that his PTSD was "mostly from childhood issues." The nurse found that the criteria for a PTSD diagnosis were met. With regard to criterion A, the nurse stated that the Veteran "was exposed to severe traumatic events primarily in childhood." A November 2015 VA treatment record also discusses the Veteran's childhood issues. There is no mention of an in-service stressor or symptoms related to service such as nightmares or flashbacks. Thus, the PTSD diagnosis was not founded on an in-service stressor, but on trauma that occurred outside the Veteran's service period. These records constitute probative evidence that the Veteran's PTSD symptoms are not linked to an in-service stressor. In this regard, under the Federal Rules of Evidence, statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736 (1992). Although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). In this case, the Board cites this rule not because it is binding, but because it clearly articulates a self-evident principle that guides its determination here: namely, that the Veteran did not have an apparent incentive at the time to mispresent his medical history, but rather had an incentive to provide an accurate history for purposes of receiving effective treatment. The Board notes that the Veteran filed the present claim for PTSD in November 2016. The VA treatment records show that a few months prior, in May 2016, he was seen by a psychiatrist for medication management. This record lists under "social history" the following: "Childhood: 'Ok' Uneventful; Trauma: V Nam [sic] (Navy exposure to constant high noises and a dangerous environment)." There is no further discussion of his trauma and no discussion of his PTSD symptoms. This record reflects a diagnosis of PTSD. The Board finds that the May 2016 VA treatment record is not probative on the issue of whether the Veteran's PTSD symptoms are linked to an in-service stressor. This record does not indicate that the diagnosis of PTSD was based on an evaluation of the Veteran. Rather, he was only being seen at the time for medication management, thus indicating that the PTSD diagnosis was simply carried forward from the prior diagnosis, rather than representing an independent diagnosis based on clinical evaluation. Moreover, his service personnel records show that he did not serve in Vietnam, and he has not related a stressor based on service in Vietnam. Furthermore, his statement that his childhood was "ok" and "uneventful" is contradicted by the VA treatment records dated in February 2015, when he initially sought treatment for PTSD based on childhood trauma, and the November 2015 VA treatment record reflecting a history of significant childhood issues, again in the context of psychotherapy. As the May 2016 VA treatment record is dated only a few months before he filed this claim, there is a strong indication that he anticipated filing it and thus had an incentive to misrepresent his medical history by attributing the trauma to his active service for purposes of supporting the claim. Conversely, as he was not being seen for counseling, but simply for medication management, he would not necessarily have the same incentive to provide an accurate history regarding the nature of the trauma as he did in the context of his prior psychotherapy. In short, the attribution of trauma to the Veteran's active service in this record is not credible, as it is contradicted by his earlier statements when he was seen for psychotherapy, which are more reliable as explained above. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran). The reference to Vietnam is also not consistent with the fact that he did not serve in Vietnam. Accordingly, although this record also reflects a diagnosis of PTSD, it is not probative on the issue of whether his PTSD is related to service. The Veteran has stated that a VA psychologist informed him after several sessions that she believed he had PTSD because of the event in service of being nearly thrown overboard during a storm, as detailed above. See November 2016 VA Form 21-0781a. The name he gave for that psychologist is the name of the psychiatric nurse practitioner who initially diagnosed him with PTSD in February 2015. As that clinician diagnosed him with PTSD due to childhood trauma, and as the records do not show that she subsequently attributed his PTSD to the reported in-service stressor, the Board finds the Veteran's November 2016 statement lacks credibility, since it directly conflicts with the VA treatment records. See Caluza, 7 Vet. App. at 511. The fact that he so clearly misrepresented her findings further supports the Board's conclusion that the reference to trauma associated with the Veteran's service in the May 2016 VA treatment record is not based on a credible history. The Board finds that a VA medical opinion on this issue is not warranted. In this regard, VA's duty to provide an examination or opinion is required when the following elements are satisfied: (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159(c)(4). Here, the Board finds that the third and fourth McLendon elements are not met. There is no indication that the Veteran's current PTSD symptoms are linked to his reported stressor of being nearly thrown overboard during a storm. At the same time, there is sufficient evidence to find that his PTSD symptoms are instead linked to childhood trauma, and thus sufficient evidence to decide the case on that basis. Accordingly, the criteria for providing a VA examination or obtaining a VA medical opinion are not met. See id. The Board also finds that the Veteran's reported in-service stressor has not been established. The exceptions to the requirement that the stressor be verified with credible supporting evidence do not apply. More specifically, he was not diagnosed with PTSD during service; he did not have combat service; he was not a prisoner of war; and the stressor is not related to fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304(f). Accordingly, there must be credible supporting that the claimed in-service stressor occurred. Id. In this case, the Board finds that there is not sufficient credible supporting evidence to verify the claimed stressor. The RO was able to verify that the USS Hassayampa was exposed to Tropical Storm Lorna, a typhoon, which occurred from February 1976 to March 1976. A printout from a webpage in the claims file includes a photographic image of that ship in a storm in February 1976. The Veteran's service personnel records show that he was assigned to that ship during the period when the storm occurred. However, the fact that the Veteran was serving aboard the USS Hassayampa during a storm is not sufficient to establish the reported in-service stressor of being nearly thrown overboard by a wave. The Board notes that corroboration of a claimant's "personal participation" in an event is not always required to establish the occurrence of the claimed stressor. Pentecost v. Principi, 16 Vet. App. 124, 128 (2002). In Pentecost, the United States Court of Appeals for Veterans Claims (Court) held that where a stressor was based on rocket attacks on the area where the appellant was stationed in Vietnam, and the attacks themselves were verified, further evidence of the appellant's "proximity to and participation in the rocket attacks" was not required. Id. at 129. Rather, credible evidence showing that the appellant's unit experienced rocket attacks at the base where he was stationed "implie[d] his personal exposure." Id. at 128. This case is distinguishable from Pentecost. In that case, the experience of the rocket attack was itself the stressor. Thus, verification that the rocket attack occurred where the appellant was stationed was sufficient to verify that he was exposed to that attack, and by the same token, to verify the reported stressor on which his PTSD claim was based. Here, by contrast, the fact that the Veteran experienced being in a storm while serving aboard the USS Hassayampa is not in question. But the experience of the storm itself is not the claimed stressor. Rather, the claimed stressor is that he was partly thrown overboard by a wave. The Board finds that the evidentiary gap between verification of the storm and his statement that he was partly thrown overboard such that he had to grab onto the lifelines on the side of the ship and hoist himself back on deck is simply too wide for verification of the storm to be sufficient to also corroborate that account. The occurrence of the storm does not in itself imply that he was nearly swept overboard by a wave. The evidence of record does not otherwise support that the claimed stressor occurred. The Joint Services Records Research Center (JSRRC) reviewed the 1976 command history and deck locks from February 1976 to March 1976 for the USS Hassayampa. These records did not include any entries for "men overboard" or references to Tropical Storm Lorna. The Veteran's service department records do not provide supporting evidence for his claimed stressor. In this regard, at the March 2021 hearing, he testified that he was not treated for any injuries sustained in that incident. Thus, his service treatment records would not, and do not, support his account. At the March 2021 hearing, when asked if there were any changes in his behavior following this incident, the Veteran responded that he had nightmares that kept him from sleeping. In this regard, he stated that every other day he worked 16 hours, and that with his sleep being interrupted it was difficult for him to do his job. He became irritable with his shipmates, which led to "bouts of extreme anger," adding that this was "[u]nexplained anger over simple things." A February 1976 service treatment record states that the Veteran reported being unable to sleep, and noted experiencing tension due to his work schedule and the work itself. That record does not support a finding that he had nightmares associated with the claimed stressor. It is dated February 16, 1976, while the storm did not occur until February 25, 1976. Thus, his difficulty sleeping at that time was prior to the storm. Moreover, it was attributed to work-related stress. Accordingly, that record does not support his testimony implying that he had nightmares associated with the claimed stressor. In sum, as the Veteran's claimed stressor must be verified with credible supporting evidence, and as it has not been so verified, that element for establishing service connection for PTSD has not been met. See 38 C.F.R. § 3.304(f). The Board emphasizes that even if the Veteran's stressor were verified, the probative evidence shows that his PTSD is not medically linked to that stressor, as explained above. Accordingly, the criteria for service connection for PTSD are not met. See 38 C.F.R. § 3.304(f). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.