Citation Nr: 21041042 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 12-07 743 DATE: July 7, 2021 ORDER Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and dysthymic disorder, is denied. FINDING OF FACT In October 1980 the Veteran sustained a self-inflicted gunshot wound to the head, which was proximately caused by his own misconduct and was thus not incurred in the line of duty; the evidence of record weighs against any other in-service event, injury, or disease related to a current acquired psychiatric disability. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD and dysthymic disorder, are not met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to May 1975 and from July 1975 to May 1981. This appeal is before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In June 2016, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) via videoconference. A transcript is included in the claims file. The Board reopened and denied the Veteran's claim in a September 2016 decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which vacated the Board's denial in a July 2017 order granting a joint motion for remand (JMR). The Board again denied the appeal in a November 2017 decision. He again appealed to the Court, which again vacated the denial in a July 2018 order granting a second JMR. The Board again denied the appeal in an October 2019 decision. He again appealed to the Court, which again vacated the denial in an August 2020 order granting a third JMR. The appeal is therefore again before the Board. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and dysthymic disorder The Veteran claims service connection for PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires: (1) a diagnosis of the disorder made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-5); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a). There are several avenues to document an in-service stressor, other than obtaining verification from the Joint Services Records Research Center (JSRRC) or other government records repository: an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; lay evidence of personal assault with appropriate corroboration; and a stressor related to a veteran's fear of hostile military or terrorist activity, with appropriate medical evidence. 38 C.F.R. § 3.304(f). Lay evidence may establish an in-service stressor if the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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 v. Derwinski, 1 Vet. App. 49 (1990). 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. As an initial matter, extensive evidence reflects that the Veteran was discharged from service after suffering a self-inflicted gunshot wound in October 1980. The Veteran disputes that the wound was self-inflicted and states that he was shot by a fellow soldier, contrary to the findings of a report by the Army Criminal Investigation Division (CID). The Veteran's dispute with CID's findings is explained in detail in an August 2009 final Board decision denying the Veteran's service connection claim. For reasons explained therein, the Board found that the Veteran's self-inflicted gunshot wound was proximately caused by the Veteran's own misconduct and was thus not incurred in the line of duty. Since the August 2009 Board decision, no evidence has been added to the record in regard to the October 1980 gunshot wound, with the exception of statements by the Veteran which repeat his prior allegations. For these reasons, the Board incorporates the analysis of the August 2009 Board decision and will not further address service connection based on the October 1980 gunshot wound. VA treatment records reflect extensive treatment for a mood disorder secondary to a traumatic brain injury (TBI) and PTSD, the bulk of which reflects the Veteran's reports that he was shot in the head by a fellow soldier in October 1980. His therapy focuses both on the October 1980 incident and his struggles thereafter with CID and VA to prove that he did not shoot himself in the head. There is no indication of any separate stressors reflected in treatment records until July 2007, when the Veteran reported nightmares about his "war experience" every night, though it is unclear to what he was referring. In September 2007 he reported hearing radios and helicopter blades when sleeping, without describing any events or incidents in service to which these sounds might be related. In July 2010 he reported difficulty staying asleep and nightmares related to field maneuvers in service. In December 2010 he reported nightmares related to field maneuvers. In March 2011 he reported having nightmares about a fellow soldier run over by a tank in service. He also reported seeing a man electrocuted while in Germany. In September 2011, the Veteran further reported that in service he saw a lot of people blown up while trying to cross a mine field into West Germany. The Veteran asked his physician to write a letter stating that the Veteran's PTSD was not due to his gunshot wound, but due to "his job, like mine fields, and getting shot at in Germany." The Veteran's records of treatment through May 2013 reflect that these statements were made, but do not reflect new focus or additional details regarding these stressors. In his March 2012 substantive appeal, the Veteran named in-service stressors apart from the October 1980 incident. Specifically, he stated that his current PTSD was due to (1) witnessing a fellow soldier electrocuted atop a tank turret when coming in contact with transit power lines in Germany; (2) witnessing European civilians injured and killed when running through mine fields in Germany to avoid East/West border checkpoints; and (3) witnessing a fellow soldier crushed between two tanks. In accordance with a February 2015 letter, VA requested additional information necessary to corroborate these stressors. The letter included a form for the Veteran to complete and provide specific dates and locations for his stressors to allow for records to be searched. The Veteran did not complete the form or otherwise provide the requested information, and in July 2015 VA issued a formal finding of a lack of information necessary to corroborate stressors in connection with the Veteran's PTSD claim. At his June 2016 hearing before the Board, the Veteran again denied that the October 1980 gunshot wound was not self-inflicted. As discussed above, he did not provide any information regarding this incident that was not already contained in the record prior the Board's August 2009 decision. As to the additional stressors, the Veteran described the stressors raised in his substantive appeal but did not provide date ranges or locations for these incidents. The VLJ asked the Veteran whether any of his psychiatrists had linked his disability to these stressors, to which the Veteran responded that when he reported the stressors he was only given medication. In an August 2019 report based on examination of the Veteran and review of his file, a private psychiatrist opined that his current symptomatology was initially caused by repetitive trauma he experienced while stationed in West Germany. The psychiatrist stated that there is no question that he witnessed, in person, traumatic events occurring to others. Over the months following the trauma he became more socially isolated, negativistic, detached from other individuals, and emotionally numb. The psychiatrist explained that these behaviors led to the deterioration of his military demeaner, abuse of alcohol, and eventual gunshot wound. Curiously, the psychiatrist stated that it was not surprising that he had inconsistent recollections of the gunshot wound and the cause of the incident due to the massive neurosurgical trauma forever altering his cognitive functioning. In an August 2019 brief, the Veteran's representative cited evidence that the Veteran served in a Division that was responsible for patrolling a 230-mile portion of the border between East Germany and West Germany. The representative also provided a list of people killed at the border, including 21 during the Veteran's period of active duty. There is no corroborative evidence, however, that the Veteran witnessed any of their deaths, or was present at the portion of the border they crossed when they crossed it. The Veteran has not identified who he witnessed killed or when or where it occurred. Given that he was patrolling 230 miles of border, the chance that he witnessed one of the average three deaths a year on the border is minimal without more specific information. The Veteran submitted an additional April 2021 report prepared by the same private psychiatrist who prepared the August 2019 report based in part on an additional interview with the Veteran. The psychiatrist expanded upon the finding that the Veteran was a credible historian. The Veteran described patrolling the Berlin Wall, witnessing the deaths of civilians trying to cross from East Germany to West Germany. He stated that his first mission in Germany was patrolling the Berlin Wall. He stated that he saw individuals killed in the minefield between East and West Berlin. The psychiatrist noted that the Veteran's account of his gunshot wound is less trustworthy than his description of stressors due to the memory loss caused by the physical injury. The psychiatrist stated that while the Veteran suffers from memory loss, there is no medical reason to suspect that his memory of service prior to the gunshot wound had been altered (i.e., that he would recall witnessing events that never occurred). In a June 2021 brief, the Veteran's representative argued that the Veteran was likely to witness escapee deaths during his service because he was patrolling specifically to find people crossing the border. The representative further enclosed a website of Cold War casualties in which an anonymous contributor posted an anecdote in which an unnamed solider was electrocuted on the top of a tank in 1977. Another poster gave his name and said he was there when that happened but could not name the soldier. The Board finds that the evidence weighs against a finding of an in-service event, injury, or disease related to a current acquired psychiatric disability, with the exception of a self-inflicted gunshot wound to the head sustained by the Veteran in October 1980 which was proximately caused by his own misconduct and was thus not incurred in the line of duty. Specifically, there is not sufficient evidence in the record to corroborate that the Veteran witnessed the incidents reported. Those service personnel and treatment records in the Veteran's claims file do not refer to any such incidents occurring, and the Veteran has failed to provide any detail to allow VA to conduct a meaningful search for records of such incidents. While the Veteran stated he witnessed the deaths of two fellow soldiers, he has not provided their names, the place they died, or an approximate date of their deaths. He has not provided any statements from other soldiers who witnessed these events alongside him. While the Veteran cites to an internet forum indicates that an unnamed soldier was electrocuted while standing on a tank in West Germany around 1977, there is nothing beyond his uncorroborated statements to show that he was present when it happened. Furthermore, despite voluminous records of treatment over many years, there is no evidence of the Veteran ever referencing these deaths prior to filing this appeal. Rather, the Veteran's medical and psychiatric treatment has focused on the trauma of his own injury, not the deaths of others which he witnessed. After raising these new stressors, the Veteran asked his psychiatrist for a letter indicating that they caused his PTSD and his gunshot wound did not. Due to the timing of these stressor accounts and because the Veteran has not substantially responded to requests for more detailed information about them, the Board finds that they lack credibility. The Board likewise does not find the August 2019 and April 2021 private opinions to be probative evidence regarding what befell the Veteran in service. Despite the psychiatrist's statement that there was "no question" as to whether the Veteran witnessed traumatic events occurring to others, such a statement is not a medical opinion and is not entitled deference based on expertise. Rather, the psychiatrist's opinion that trauma other than the gunshot wound caused current PTSD is entirely dependent upon the Veteran's reports that he witnessed such trauma. The opinion is thus only as credible as the reports themselves and is thus not probative. The Board recognizes that the Veteran's representative believes that the Veteran has provided "details" of people killed while escaping East Germany that are consistent with factual occurrences. Yet he fails to provide any evidence beyond his uncorroborated statements that he witnessed any of these killings. He has not provided any dates, names, or locations. According to articles submitted by the Veteran's representative, the border between East Germany and West Germany was over 800 miles long. Simply stating that an incident happened at the border is too vague to be probative. Indeed, statements in the briefs submitted by the Veteran's representative and as recorded by his private psychiatrist cavalierly refer to incidents that happened at "the Berlin Wall." There is no evidence in the record, however, that the Veteran served anywhere near Berlin. His records show service elsewhere in West Germany without any record of having been stationed in West Berlin. In the June 2021 brief, the Veteran's representative made the curious argument that the Veteran was likely to be in the right place at the right time to witness one of a handful of deaths per year during his service because he was patrolling specifically to find people crossing the border. This does not change the fact that the Veteran was at any given time somewhere on a 230-mile portion of border, able to personally observe significantly less than one percent of it at a time. The chances of the Veteran and the failed escapees crossing paths remains astonishingly low. The representative cited Pentecost v. Principi, a case in which the Court held that corroboration can be provided by "the fact that he was stationed with a unit that was present while such attack occurred would strongly suggest that he was, in fact, exposed to the attacks." 16 Vet. App. 124, 128 (2002) (emphasis added). Here, the key fact is that the Veteran's unit was "present" only insofar as it was stationed somewhere along a 230-mile portion of border when a death occurred. The Board can only concede that the Veteran was within 230 miles of some of these people when they died; that does not remotely corroborate that he witnessed their deaths. For these reasons, the Board finds no in-service event, injury, or disease related to a current acquired psychiatric disability, with the exception of the October 1980 self-inflicted gunshot wound not incurred in the line of duty. The July 2017 JMR instructed the Board to address whether the hearing was compliant with Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this regard, the JMR states: "Specifically, despite having not yet received information to verify his stressors, the Board member did not ask for such details." In Bryant, the Court held that 38 C.F.R. § 3.103(c)(2) imposed two distinct duties on VLJs conducting hearings: (1) the duty to "fully explain the issues still outstanding that are relevant and material to substantiating the claim," and (2) the duty to "suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record." 23 Vet. App. at 492, 496. The Board finds that, to the extent that the VLJ did not reiterate to the Veteran or inquire as to specific details for stressor information at the June 2016 hearing, there is no prejudice to the Veteran because he had actual knowledge of the evidentiary requirements and deficiencies in his claim. Specifically, the Veteran was sent a letter in February 2015 which included a form asking for the absent evidence in specific terms. The Veteran submitted neither the completed form nor the requested information. A February 2016 supplemental statement of the case explained that the Veteran's claim remained denied because he "did not provide the minimum required information needed to corroborate the reported stressor(s)." Indeed, the transcript of the June 2016 Board hearing reflects that the Veteran acknowledged that he had received requests from VA for more evidence, that he had provided all the evidence he could gather. The Veteran cannot claim ignorance about VA's need of such information, given that he had filled out in full the identical form or its equivalent numerous times over the several decades in which he has claimed service connection for PTSD, though never in relation to these newly claimed stressors. The Board sees no basis to provide opportunity for a second hearing or any other additional notice merely to explain to the Veteran the very requirements which were acknowledged by him during the Board hearing with the assistance of the accredited representative. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (holding that a claimant's actual knowledge may be imputed through the actions of a representative). Indeed, despite having significant time to do so, neither his counsel before the Court nor his accredited representative before VA has since presented any further details concerning the alleged stressors; nor have they requested a second in-person hearing or any additional notice or time to provide any additional details. The July 2017 JMR also instructed the Board to address whether the Veteran is eligible for service connection for an acquired psychiatric disability other than PTSD. In particular, the JMR instructs the Board to consider whether the evidence establishes entitlement to service connection for dysthymic disorder, and whether further development, including a medical opinion, is warranted. To be clear, the Board herein denies service connection based on a lack of an in-service event, injury, or disease related to a current acquired psychiatric disability, with the exception of an incident proximately caused by the Veteran's misconduct and thus not incurred in the line of duty. In no way is this finding to be limited to PTSD. All service connection claims require an in-service event, injury, or disease related to a current disability, whether that disability is PTSD, dysthymic disorder, or any other acquired psychiatric disability. While there are the abovementioned regulatory requirements specific to establishing an in-service incident related to PTSD, which the Veteran's reports fail to meet, the determination that his reports lack credibility applies to all service connection claims related to these reported incidents. As to an examination related to dysthymic disorder or other psychiatric disabilities, the Board finds that remand is not necessary for such an examination or opinion. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As explained above, the Board finds that there was no event, injury, or disease related to an acquired psychiatric disorder that was incurred in or as a result of duty service; and VA therefore has no duty to provide a medical examination. Additionally, the July 2017 JMR noted that the name of the Veteran's street is misspelled on multiple communications sent by VA. The Board has addressed this typographical error within its records. Neither the Veteran nor his representative has identified any communication which the Veteran failed to receive, and there is no indication that this error has caused any prejudice to the Veteran in pursuing his claim. The July 2018 JMR instructed that the Board erred in its prior decision by failing to address whether a February 2015 VA Form 9 submitted by the Veteran was a sufficient response to VA's February 2015 letter requesting detail about his stressors. The February 2015 Form 9, however, is an exact copy of the Veteran's March 2012 Form 9, apart from a change in the date. Moreover, the February 2015 VA letter explicitly stated that in March 2012, VA received a Form 9 mentioning new stressors, but that specific details were still needed regarding these stressors. A VA Form 21-0781 was provided to the Veteran, which, if completed as instructed, would contain these details. In contrast, the resubmitted Form 9 did not provide any dates, locations, witnesses to the claimed incidents, or any information that had not already been submitted to VA. There is no reason that the Veteran or his representative should have believed that simply resubmitting the original Form 9 would provide the information requested. Notably, despite being explicitly notified by three vacated Board decisions, the Veteran has still not provided sufficient information about his claimed stressors to allow them to be confirmed. The July 2018 JMR further instructed that in prior vacated decisions the Board failed to assess favorable evidence, particularly the abovementioned treatment records from 2007 to 2010 describing intrusive thoughts that could arguably be indicative of stressors other than the Veteran's gunshot wound. Specifically, the Veteran reported nightmares and thoughts related to radios, helicopters, field maneuvers, and "war experience." The Board was thus incorrect in the vacated decisions when it stated that there was no indication of any separate stressors reflected in treatment records until March 2011, when in fact the Veteran provided vague statements that indicated some other sort of experience as early as July 2007, though without the detail which would eventually make them recognizable as stressors, i.e., a man getting run over by a tank, a man being a electrocuted, or people being killed while attempting to escape East Germany. In any event, the analysis still applies that the Veteran initially received psychiatric care and attempted to receive disability compensation from VA, during which time he attributed his symptoms entirely to a gunshot wound that he insisted was not self-inflicted. The August 2020 JMR focused entirely on a misstatement of fact in the Board's analysis in its vacated October 2019 decision. That misstatement has been corrected in the above analysis. For these reasons, the Board finds that finds that the evidence weighs against a finding of an in-service event, injury, or disease related to a current acquired psychiatric disability, with the exception of a self-inflicted gunshot wound to the head sustained by the Veteran in October 1980 that was proximately caused by his own misconduct and was thus not incurred in the line of duty. Service connection is therefore denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.