Citation Nr: 21031727 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-13 692 DATE: May 24, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the VA Regional Office (RO) in Buffalo, New York. In May 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. A February 2020 Board decision denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (Joint Motion) and, in a January 2021 Court Order, the Court granted the Joint Motion, vacating the Board's February 2020 decision and remanding the matter for compliance with the Joint Motion. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran, and his representative, contends that his acquired psychiatric disorder stems from service. As emphasized in the January 2021 JMR, remand is necessary as VA's duty to assist includes obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities regardless of their relevance. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). In this instance there may be outstanding relevant VA treatment records. VA treatment records were last obtained by VA in February 2019, over two years ago, and the record shows that the Veteran started receiving VA treatment for anger management in February 2019. Additionally, at the May 2019 Board hearing, the Veteran testified that he had been treated for anger management at VA since March 2019 and that he attended group therapy at VA two times per month which lasted 12 weeks. See Hearing Transcript at 5 (May 2019). While the Veteran indicated that he would provide those treatment records after the hearing, the record does not show that the Veteran submitted the VA treatment records. Nevertheless, as any complaint or treatment, as related to his claim, with VA is relevant in determining the Veteran's claim for service connection, remand is necessary to associate any outstanding VA treatment record with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Turning to the Veteran's contentions, he argues that his acquired psychiatric disorder is related to an in-service gas explosion, in which, he sustained burns to the right side of the face. See Hearing Transcript at 4 (May 2019) ("it exploded. It knocked me down, cinched my hair, my eyebrow, the whole right side of my face. So, I was taken into an area to see what was going on and they were going to medivac me, but then they decided not to. They just kept me in the tent until the end of the day, and that was it. But nothing was documented at the time; I don't know why, but they didn't do anything as far as documentation."). The Veteran's service treatment records (STRs) show no complaints, treatment, or findings for psychiatric problems, or injuries from a gas explosion. An April 1968 service separation examination report reflects normal clinical evaluation of the psychiatric system and no abnormalities to the skin (except for forehead scar) or head, face and scalp. On the history part of that examination, the Veteran denied having now or having had any skin diseases, and he denied having ever had any injury other than those already noted (which did not include injury from a gas explosion). The Veteran's original VA disability application, dated in August 1968, does not reflect any report of injury or disability related to a gas explosion. An October 1968 VA general examination reflects normal clinical evaluation of the head, face, and neck area. Next, the Board acknowledges the lay statements of record, to include a buddy statement submitted on behalf of the Veteran. While lay persons are competent to describe observable symptomology (e.g. the onset of symptoms associated with a skin burn), the Board finds the lay reports less than credible as they are inconsistent with contemporaneous evidence. The Board notes that the absence of evidence does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). In order to find that silence in the record contradicts lay testimony, the Board "must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation." Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012) for the proposition that "the absence of evidence cannot be substantive negative evidence without 'a proper foundation . . . to demonstrate that such silence has a tendency to prove or disprove a relevant fact.'"). That foundation may be laid by a finding that the fact at issue would ordinarily have been recorded, in which case the Board may legitimately infer from the absence of such a record that it did not occur. Id.; Buczynski, 24 Vet. App. at 224 (noting that under Fed. R. Evid. 803(7), "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-16 (Fed. Cir. 2013) (noting that the Federal Rules of Evidence, including section 803(7), while not controlling in the adjudication of VA benefits claims, provide "useful guidance," and quoting federal case law to the effect that "[t]he absence of a record of an event which would ordinarily be recorded gives rise to a legitimate negative inference that the event did not occur" (internal citation omitted)). Thus, the Board may infer from silence in the STRs that a claimed disease, injury or event did not occur during active service if it finds that the STRs are complete "in relevant part," and that the claimed "injury, disease, or related symptoms would ordinarily have been recorded had they occurred." Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring). Such a finding constitutes "contradictory" evidence weighing against the credibility of a claimant's testimony. Id. In making this determination, the Board must consider whether it is competent to find that a claimed medical issue would ordinarily have been recorded without supporting medical evidence. Id. at 434; cf. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert). Here, the STRs are complete "in relevant part" and, in conjunction with subsequent treatment records and other contemporaneous evidence, contradict the lay statements. The Veteran is claiming that he sustained severe and profound burns to the right side of the face to the extent that a medivac was going to be executed. The Veteran claims that this injury occurred between April 5, 1968, and April 13, 1968. The Veteran's STRs, however, reflect no complaints, treatment, or diagnoses for a skin burn or associated symptoms during this period. Indeed, as mentioned above, the Veteran's separation examination report, dated April 26, 1968, reveals no abnormalities to the skin of the right side of his face (only a forehead scar). Additionally, the summary of defects and diagnoses section of the examination report shows that the examining physician found none. After examination, the examining physician concluded that the Veteran was qualified for service separation. Report of medical history, dated April 26, 1968, reveals that the Veteran described his overall health as "good." The report additionally does not show reports, complaints, or treatment for a skin burn or associated symptoms. Also, question 33, of the report of medical history, providing, "[h]ave you ever had any illness or injury other than those already noted," shows that the Veteran did not report complaints, symptoms or signs, or treatment related to a skin burn. The STRs are complete insofar as they pertain to the Veteran's period of active service and include the Veteran's medical treatment records. The Veteran's reported in-service gas explosion, and associated skin burns, occurred during active service, a time frame that is encompassed by the period spanned by the STRs in the claims file. Therefore, the STRs appear in every way to be complete. Nonetheless, despite his assertion, the contemporaneous medical records do not corroborate the event or injury. In this regard, as noted above, the Veteran maintains that he was involved in an in-service gas explosion, in which, he sustained severe and profound burns. However, the competent, credible evidence of record does not show, or corroborate, this assertion. The Board observes that the Veteran underwent a service separation examination the same month and year he claims he was involved in the gas explosion and sustained the skin burns, the examination report, nevertheless, does not corroborate the Veteran's claimed injury or event. Indeed, in this case, the examination report contradicts his assertions. Here, it defies belief that the alleged in-service gas explosion, and associated burns, would not have been recorded given the significant injury the Veteran, and buddy statement, says he had from the explosion. Therefore, in consideration of the above, coupled with the decades intervening service separation and the first documented complaint, which was first made decades after service separation when the memory is less reliable, the Board finds the lay reports not credible. See Buczynski, 24 Vet. App. at 224; Kahana, 24 Vet. App. at 438 (stating that VA may use silence in the STRs as evidence contradictory to a veteran's assertions if the STRs appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The Board also finds that the Veteran did not serve in combat, and the Veteran has not raised this argument. Indeed, the evidence of record, to include the lay evidence, does not reveal that the Veteran was in "combat with the enemy" at the time of the alleged injury or event. See Stone v. Nicholson, 480 F.3d 1111, 1113 (Fed. Cir. 2007) ("The plain language of [38 U.S.C. § 1154(b)] demonstrates that in order for a veteran to be able to show service-connection for an injury using only lay evidence, the veteran must have engaged in combat with the enemy . . . . [A] veteran's participation in combat is a prerequisite for the application of § 1154(b)."). Accordingly, the relaxed standard of section 1154(b) has no application in this case. Additionally, because the evidence demonstrates no in-service injury or disease element needed to establish service connection, the Board finds that no VA medical opinion or examination is needed in this case. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As explained above, the weight of the evidence demonstrates no in-service psychological disease, injury, or event, including no stressor and no credible evidence of psychological symptoms. Moreover, the weight of the evidence also demonstrates no symptoms until many years after service. There is no reasonable possibility that a medical opinion would help substantiate the appeal because there is no in-service injury or disease to which an opinion could relate the alleged acquired psychiatric disorder. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). Any opinion purporting to relate the alleged acquired psychiatric disorder to service would have to base such opinion on a factually inaccurate assumption of in-service injury, disease, or event; such factually inaccurate assumption would render the purported opinion of no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual basis is of no probative value). Lastly, while the Board reserves the right to make its own credibility determinations, as set forth above, it can nonetheless consider further evidence to make supplementary credibility determinations later when promulgating a decision in this matter. The Board notes that this remand is interlocutory in nature unlike a decision. The matter is REMANDED for the following actions: 1. Obtain all VA treatment records dated from February 2019 to the Present. 2. After completing any additional development deemed necessary, readjudicate the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.