Citation Nr: 21032282 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-22 644 DATE: May 26, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), is denied. REMANDED Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's acquired psychiatric disorder, to include PTSD and major depressive disorder, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder to include PTSD and MDD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1961 to April 1965. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2021 Board Hearing. The claims file contains a transcript of the hearing. After his hearing, the Veteran submitted additional evidence. Waiver of RO consideration is presumed, since he submitted the evidence himself. The Veteran claimed entitlement to service connection for PTSD. See December 2013 Informal Claim. The claim was denied in an April 2014 rating decision. In response, the Veteran submitted an October 2014 VA 21-4138 expressing disagreement with the April 2014 denial and identifying several alleged errors in that decision and again expressed a belief in entitlement to service connection for PTSD. He also submitted a January 2015 VA 21-4138 in which he identified records documenting "treatment for PTSD" and requested that the RO "please obtain those medical records to further support my claim." Thereafter, the Veteran also filed a February 2015 VA 21-526EZ identifying his claim as "Post-traumatic stress disorder, revaluation." The RO treated the VA 21-526EZ as a request to reopen a claim of entitlement to PTSD, but the June 2015 rating decision denying the claim does not indicate whether the RO decided to reopen the claim (though it did appear to address the merits). First, the Veteran has consistently claimed entitlement to service connection for PTSD. However, the treatment records in the claims file and which the Veteran has submitted in support of his claim also contain a diagnosis of MDD. See February 2015 VA Psychology Note (included in the VA treatment records and also separately submitted by the Veteran in March 2021). A Veteran's claim is not limited to the diagnosis identified in the filings, but includes any diagnosed condition reasonably encompassed by the claimed symptoms. See Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009) ("Although the appellant's claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim."). For this reason, the Board has expanded the claim to entitlement to service connection for an acquired psychiatric disorder to include PTSD and MDD. Second, the claim before the Board is the original December 2013 claim. The April 2014 rating decision never became final because the Veteran timely submitted a statement specifically disagreeing with that rating decision. At the time of the April 2014 rating decision and at the time the Veteran filed his October 2014 VA 21-4138 and his January 2015 VA 21-4138, 38 C.F.R. § 20.201 provided that "[a] written communication from a claimant . . . expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement." While this provision was amended in 2014 to require that a Notice of Disagreement be submitted on a particular form, the amendment was not effective until March 24, 2015. See 79 Fed. Reg. 57660, 57698 (Sep. 25, 2014). Therefore, the October 2014 VA 21-4138 was a valid Notice of Disagreement at the time it was filed. This appeal does not involve a claim to reopen, but is instead a direct appeal from the initial December 2013 claim. 1. Entitlement to service connection for PTSD The Veteran contends that he developed PTSD due to an alleged suicide by a soldier he had been training. See March 2015 VA 21-0781, Statement in Support of Claim for Service Connection for PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The regulations contain additional provisions addressing PTSD: "Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; 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). Section 4.125(a) provides that, for VA compensation purposes, the diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed.), i.e. DSM-IV. 38 C.F.R. § 4.125(a). For claims received by, or pending before the AOJ, on or after August 4, 2014, the provisions of 38 C.F.R. § 4.125 have been amended to require that a PTSD diagnosis conform to the Fifth Edition (DSM-5). See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has diagnoses of PTSD and MDD, the preponderance of the evidence is against finding that either of these acquired psychiatric disorders began during active service, or are otherwise related to an in-service injury, event, or disease. While the Veteran is competent to report that a soldier that he trained committed suicide, his reports are not entitled to significant probative value. He alleges that this was an unusually impactful event in his life including because of "his relationship with a young recruit which grew over time, which he . . . kind of took under his wing." March 2021 Board Hearing Tr. at 2. Yet, despite his representations that he had a close relationship with the recruit and that the recruit's suicide was particularly impactful, he testified that he could not recall the recruit's first or last name, where he was from, where he grew up, or the names of other people who witnessed the incident. Id. at 8-9. The available service records are silent regarding any mention of the incident or the Veteran seeking any sort of counseling about the incident or being involved in any investigation of the incident. This latter point is significant given the Veteran's description of how he believed the incident occurred and the responsibility he and other instructors had to ensure no live rounds went missing. Id. at 6 ("And my responsibility was to was to make sure they had all the ammunition that they had used. And if not, I had to find it and be accountable for it."). The point is that the nature of the incident would suggest an investigation that would involve talking to witnesses, such as the Veteran. Moreover, the Veteran's testimony suggests that a failure in the system of tracking live ammunition may have allowed the recruit to take a live round to the toilet area which, based on the Veteran's testimony, would suggest an investigation that, again, would involve talking to witnesses like the Veteran who could provide information on how the recruit could take a loaded rifle away from the firing range to the toilet area. In short, it is highly unlikely that there would not be a record of a suicide as described by the Veteran or that an instructor who was close to a recruit (as the Veteran described his relationship) would not remember any details about the recruit or other people who were present after such a dramatic incident. The record also includes a January 2021 statement from the Veteran's wife which indicated that he would tell her that his nightmares were "related to his time on the rifle range and an incident involving a young recruit." Her statement does not relate how he described the incident, so does not provide corroboration of the specific incident. Moreover, her statements are just restatements of the Veteran's own statements, as she does not allege she was present, so do not provide independent corroboration of the events. In addition, the wife provided the statement decades after the incident at issue and in the context of a claim for benefits. Because of the vagueness of the statement, the distance in time between the events related and the statement, the fact that the statements simply report prior statements of the Veteran, and the wife's own financial interest in a favorable outcome, her statement is entitled to no probative value regarding whether the Veteran experienced an in-service event as he described. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Similarly, the Veteran has pointed to his comments made to treating mental health professionals and has submitted a 2015 VA psychology note in support of his claim. Any such statements contained in the treatment records are cumulative of the Veteran's testimony and are not corroboration of the Veteran's allegations, but are mere restatements of the allegations (or vice versa). This is particularly so where, as here, the only such statements of record were made decades after the alleged incident. In making these findings, the Board does not hold that a witness who reports a Veteran's prior statements on a subject cannot corroborate a prior event or constitute credible supporting evidence, only that the statements submitted in this matter in these circumstances do not amount to credible supporting evidence and otherwise do not corroborate the Veteran's claims. There is simply no corroboration of the Veteran's alleged stressor event. As noted above, claims of entitlement to service connection for PTSD, there must be "credible supporting evidence that the claimed in-service stressor occurred." 38 C.F.R. § 3.304(f). Here, there is no such credible supporting evidence. The provisions which relax these requirements in specific circumstances do not apply in this case. The evidence does not establish a diagnosis of PTSD during service. 38 C.F.R. § 3.304(f)(1). Rather, the first diagnosis of PTSD was many decades after the Veteran's active service. The incident does not relate to combat with the enemy. 38 C.F.R. § 3.304(f)(2). The claimed stressor is not related to the Veteran's fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f)(3). The Veteran was not a prisoner-of-war. 38 C.F.R. § 3.304(f)(4). The Veteran's PTSD claim is not based on an in-service personal assault. 38 C.F.R. § 3.304(f)(5). According to the Veteran's testimony, he was not immediately present at the site of the incident. While he did hear a gunshot, he was on a live firing range where gunshots were not unusual and he did not know what happened until he was told. In other words, he did not directly witness the incident. This is not a case where he was threatened with violence, much less actually assaulted. And, in any case, the Veteran has not pointed to any evidence from the time that would corroborate the incident. In summary, the only probative evidence of the in-service event consists of the Veteran's own statements. As discussed above, in the circumstances of this case, the Veteran's testimony and other statements are not sufficient to establish the in-service event. While the Veteran believes his acquired psychiatric disability (to include PTSD and MDD) is related to the suicide of a recruit that he trained, the Board reiterates that the preponderance of the evidence weighs against findings that the in-service event occurred. The greater weight of the evidence is against the Veteran's claim. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and MDD, is denied. Duties to Notify and Assist The Veteran has argued that he is entitled to a VA examination with respect to this claim. See October 2014 VA 21-4138 ("I... requested that a psychiatric examination be scheduled."). The record contains adequate medical information to decide the claim. The medical records establish a current diagnosis of PTSD and MDD. As to a nexus, the Veteran's claim fails due to the greater weight of the evidence being against finding that the claimed in-service stressor occurred. See 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006). Therefore, remand for a VA examination is not warranted prior to a decision on the merits. An examination could not corroborate the particular non-combat stressor alleged in this case. VA has attempted to obtain unit records that could corroborate the incident. However, the attempt was unsuccessful as the records sought did not exist. See June 2015 National Archives and Records Administration Response. As noted in the discussion above, the Veteran has not been able to provide any identifying information regarding the recruit allegedly involved in the incident. Unless the Veteran can provide further identifying information, VA has fulfilled its duties to assist in obtaining federal records that could corroborate the incident. The Veteran has not raised any other specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to further discuss VA's compliance with the duties to notify and assist. REASONS FOR REMAND 1. Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. The Veteran has indicated that his hearing loss has worsened since his most recent VA examination to evaluate the severity of the condition for rating purposes. Although he submitted a February 2012 VA Audiology Note including the associated audiogram which documents recent testing of the Veteran's hearing, the audiologist used the NU-6 word list to obtain word recognition scores. The regulations require the use of the Maryland CNC word list. 38 C.F.R. § 4.85(a) ("An examination for hearing impairment for VA purposes . . . must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test."). The Veteran should be provided an updated examination to evaluate his hearing loss. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (holding that, where the veteran claims a disability is worse than when originally rated and the evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from September 2018 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.