Citation Nr: 21041964 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-23 565 DATE: July 10, 2021 ORDER Service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a psychiatric disability that began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability to include PTSD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1972 to January 1975. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision in which the Regional Office (RO) of the Department of Veterans Affairs (VA) in Los Angeles denied service connection for PTSD. This matter was remanded in July 2019 for further development, which has been completed. Service connection for an acquired psychiatric disability to include PTSD is denied. The Veteran asserts that he has PTSD due to his active service. Original claims for service connection should encompass all diagnoses that are reasonably encompassed by the Veteran's description of the claim. Clemens v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the issue on appeal has been recharacterized as one for service connection for an acquired psychiatric disorder, to include PTSD and depression. 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). Establishing service connection for PTSD requires (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V). See 38 C.F.R. § 3.304(f). The Veteran stated that during active service he was shot in the leg and witnessed another soldier being shot in the head. The Veteran asserted that he underwent surgery in service after he was "hit while on the flight deck of the USS Enterprise off the coast of Vietnam...I never saw what hit us." His service treatment records are negative for evidence of a gunshot wound. In a post-service October 1975 statement, the Veteran stated that he twisted his knee in service and that that was basis for the surgery. If a stressor claimed by a Veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that his symptoms are related to the claimed stressor. In the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of his service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). A grant service connection for PTSD for a non-combat Veteran requires credible evidence supporting his assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). Here, review of records shows the Veteran served aboard the U.S.S. Enterprise and the U.S.S. Piedmont, neither of which are listed on the VA's Navy and Coast Guard Ships Associated with Service in Vietnam. The Veteran's service treatment records are negative for evidence of a gunshot wound, nor was he awarded a Combat Action Ribbon, a Purple Heart Medal, or any other award associated with combat service (engagement with an enemy force). In a March 2016 statement of the case, the RO made a formal finding on a lack of information required to verify the Veteran's stressor in connection with his claim for PTSD. The RO determined that the information from the Veteran was insufficient to send to the U.S. Army and Joint Services Records Research Center or to research the case for a Navy record. The RO set forth the efforts made to verify the stressor event and noted that the Veteran was asked to provide detailed information. The Veteran did not submit or identify any additional information or evidence to corroborate that the stressor event occurred. In its July 2019 remand, the Board noted that the Veteran provided credible lay and medical evidence in support of his claim that he has PTSD and depression and has received psychological treatments dating back to the 1990s. Further, the Veteran has asserted that these diagnoses are related to his service. The evidence includes a lay statement from T.K.P. in which he stated that he has known the Veteran for 14 years, and that his mental state has changed. He stated that the Veteran is depressed, not social, does not remember him, etc. He also stated that the Veteran has flashbacks of the war. Treatment records dated July 2014 and August 2014 reflect that the Veteran reported PTSD symptoms including nightmares and flashbacks to the military. He was diagnosed with depressive disorder and PTSD. Evidence also includes a November 2015 VA treatment report in which Dr. J.H. diagnosed the Veteran with chronic PTSD. The Board notes that in this same treatment report, the Veteran reported that he has had a full remission of PTSD and depressive symptoms. He denied any complaints or acute stressors. He was casually dressed and well groomed. There was no psychomotor agitation or retardation noted. He was cooperative. His speech was of a normal rate, volume, and fluency. His mood was "good." His affect was congruent mood, full. Thought process was linear and logical. He denied suicidal or homicidal ideation or intent. There was no evidence of paranoia or delusional thinking. He denied audio and visual hallucinations and delusions. His insight and judgment were fair. His cannabis and cocaine use were in remission. Treatment reports dated in August 2016 reflect that the Veteran presented for treatment of PTSD and depression. He reported that his mood has improved and that he feels much less depressed, though he still reported some motivation issues. His wife was concerned about the fact that he misses dialysis treatment. The Veteran reported no stressors other than continuing to cope with being on dialysis. He was casually dressed and well groomed. There was moderate psychomotor retardation noted. He was cooperative. His speech was of a normal rate, but with soft volume and fluency. There was mild poverty of speech. His mood was "very depressed." His affect was congruent mood, full. Thought process was linear and logical. He denied suicidal or homicidal ideation or intent. There was no evidence of paranoia or delusional thinking. He denied audio and visual hallucinations and delusions. His insight and judgment were fair. His cannabis and cocaine use were in remission. He was assessed with chronic PTSD and a depressive disorder. Treatment reports dated June 2018 reflect diagnoses of dementia and depression. As noted above, in order to grant service connection for PTSD to a non-combat Veteran, there must be credible evidence to support the Veteran's assertion that the stressful event occurred. Moreover, medical evidence or a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen, 10 Vet. App. at 142; Moreau, 9 Vet. App. at 395-396. In Kays v. Snyder, 846 F.3d 1208, (Fed. Cir. Jan. 25, 2017), the United States Court of Appeals for the Federal Circuit affirmed a decision or the United States Court of Appeals for Veterans Claims which affirmed the Board's denial of service connection for PTSD due to the absence of credible supporting evidence of the claimed in-service stressor. In that case, the appellant argued that "a current medical diagnosis of PTSD" is evidence on its own that the claimed in-service stressor occurred. The Federal Circuit observed that this "misunderstands the ordinary role of a physician diagnosing PTSD. A physician is not expected to do a detailed investigation of a Veteran's claimed in-service stressors. A physician's diagnosis of PTSD does not necessarily identify what stressor caused it. Indeed, PTSD could result from an event not identified by the Veteran. That is why the regulation requires the Veteran to separately submit credible supporting evidence that the claimed in-service stressor occurred." In its decision, the Federal Circuit held that the Court had applied the correct standard of review and had "correctly determined that the regulations require credible supporting evidence that the claimed in-service stressor occurred to the Veteran" in considering 38 C.F.R. § 3.304 (f). Kays, 846 F.3d at 1210. In its July 2019 remand, the Board noted that the medical treatment records are not sufficient in and of themselves to verify the claimed stressor event. There is no independent evidence corroborating the Veteran's statement as to the occurrence of his claimed stressor. Pursuant to the Board's July 2019 remand, the Veteran underwent a VA examination in January 2020. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported that he was raised in Oakland, California by his father along with his seven siblings. He stated, "It was a really good time; father was in the military." He reported that he has been married twice. His first marriage lasted about 10 years. He and his wife had three kids (two girls and one boy). He reported that he has seven grandkids and two great grandkids. He reported that he is divorced from his second wife as well. He was unable to provide the dates or the duration of the marriage. He stated he has one daughter with his second wife. He stated that he graduated from high school in 1972. He stated that he played football and that "I was pretty popular." He stated that he went into the military in 1972 and got out in 1975. He reported that he worked in construction for years following his military service. The examiner asked the Veteran about his depression, and the Veteran said "I'm not feeling any depression or any anxiety. I'm doing fine. There's nothing wrong." He was adamant that he is not experiencing any symptoms of a mental disorder even when the examiner asked about symptoms in several different ways. The examiner stated that during the interview, the Veteran did not articulate any symptoms of mental health discomfort that would warrant any diagnosis of a mental health disorder. The Veteran reported that he went to prison for two years in Chino and one in Tehachapi for drug related charges. He reported that he struggled for a great number of years with substance abuse, possibly as early as 1982. He reported that he began using cocaine which evolved into crack use and alcohol use. The amount of drug use and daily habits were not able to be determined due to the Veteran's current difficulties with his memory. When the examiner asked the Veteran about psychiatric stressors, the Veteran stated that "I really can't remember." The examiner noted that the Veteran did not meet any of the PTSD diagnostic criteria. He did not appear to have any psychiatric symptoms. Upon examination, the Veteran was alert and oriented times 4. He appeared clean and appropriately attired. His demeanor was polite and cooperative. His mood was calm throughout the assessment, with a congruent affect. He denied any current or past suicidal or homicidal ideations, plan, or intent. There were no apparent psychotic or manic symptoms. Thought content appeared linear and goal directed. Speech was clear and coherent with normal rate rhythm and volume. The examiner noted that cognitive deficits or memory impairments did not arise during the interview as he was able to answer questions without prompting. His judgment and insight appeared fair. He did not appear to pose any threat or danger or injury to his himself or others. The examiner found that there was no diagnosis to be made because there were no findings signs or symptoms to support a diagnosis. The Board finds that the claim for service connection for PTSD must be denied in so far as it has not been attributed to a verified in-service stressor. Moreover, the January 2020 VA examiner found that none of the PTSD criteria had been met. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1131; see also Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), it was noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents resulted in disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). To the extent that the Veteran may have previously been diagnosed with a depressive disorder or even PTSD by other clinicians during the appeal, the Board again notes that neither disorder has not been attributed to an injury or event during military service and the PTSD was not based on or linked to a corroborated service stressor. The Board remanded the claim for the purpose of obtaining a nexus opinion. However, the Veteran specifically denied depression and anxiety. He stated that he was "doing fine. There's nothing wrong." The examiner was unable to diagnose any psychiatric disability. The Veteran's representative argued that the Board erred in requesting that the VA examiner identify psychiatric disabilities "other than nonservice-connected dementia" and that (given the Veteran's dementia) he cannot be a reliable source of information regarding his PTSD. It argued that a remand is warranted for another examination. The Board notes that the despite having been diagnosed with dementia, the Veteran was able to provide a great deal of detail with regards to almost all the questions he was asked. He identified that he was married twice, the number of children he had with each wife, the number of grandchildren and great grandchildren that he has, the amount of time spent in service, the date he graduated high school, that he played football and was popular, the prisons he had been spent time in, etc. The fact that he cannot remember his alleged stressors is evidence that they are not causing any disability. A remand would serve no purpose in so far as it is not likely to help him remember the alleged stressors. Moreover, the stressors that he has already reported (being "hit" [shot], and seeing someone else get shot) have not been able to be verified. As the preponderance of the evidence is against service connection for an acquired psychiatric disability to include PTSD; the benefit of the doubt doctrine does not apply. Consequently, the claim must be denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, 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.