Citation Nr: 21042397 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-12 013 DATE: July 13, 2021 ORDER Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT The competent evidence of record does not show that the Veteran's PTSD began in service or is based on a confirmed in-service stressor. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 1958 to December 1962. This matter came before the Board of Veterans Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A June 2018 Board decision remanded the case for further evidentiary development. The June 2018 Board remand asked the RO to obtain any documents pertinent to any in-service training incidents, like those described by the Veteran. In response, the RO reached out to the Marine Corps Historical Center and got a negative response. The Board remand also asked the RO to advise the Veteran that he may submit alternate forms of evidence, including, but not limited to, "buddy certificates" and letters, in order to substantiate his claim. The Board notes that the RO advised the Veteran to submit alternate forms of evidence in October 2018 and December 2019 letters. The Board also notes that, in an April 2020 letter, the Veteran's representative asked that further efforts to corroborate the stressor be discontinued as the Veteran had not reported his claimed stressors and official records would not contain any pertinent information. The Board therefore finds substantial compliance with the June 2018 remand directives and will proceed to adjudicate the issue on appeal based on the evidence of record. Entitlement to service connection for post-traumatic stress disorder (PTSD) The Veteran contends that his PTSD is due to traumatic events he witnessed during combat training at Camp LeJeune and Camp Geiger between 1959 and 1960. The Board concludes that, while the Veteran has a current diagnosis of PTSD, the evidence does not show that his PTSD began in service or is based on a confirmed in-service stressor. Service connection is therefore not warranted. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptoms and the in-service stressor. 38 C.F.R. § 3.304(f). The record shows a current diagnosis of PTSD. March 2018 private treatment records from a psychiatrist indicate the Veteran is being treated for PTSD. April 2020 VA treatment records show a diagnosis of chronic PTSD. The Board will therefore consider whether there is supporting evidence corroborating the Veteran's in-service stressor. For the following reasons, the Board finds that the record does not contain credible supporting evidence that an in-service stressor occurred. As a general matter, if VA determines that a Veteran did not engage in combat with the enemy, or that the Veteran did engage in combat with the enemy but the claimed stressor is unrelated to such combat, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the reported stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, the record must contain credible supporting evidence that corroborates a Veteran's testimony or statements. Cohen, 10 Vet. App. at 146-47. This credible supporting evidence cannot consist solely of after-the-fact medical nexus evidence. Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996). There are limited exceptions to the corroboration requirements above. Specifically, the Veteran's lay statements alone are sufficient when the Veteran was diagnosed with PTSD in service, when the Veteran is a combat veteran, when the alleged stressor is related to fear of hostile military or terrorist activity, and when the Veteran was a prisoner-of-war. 38 C.F.R. § 3.304(f)(1)-(4). In addition, 38 C.F.R. § 3.304(f)(5) provides that after-the-fact medical evidence is sufficient to corroborate an in-service stressor if the Veteran was a victim of personal assault. The Board finds that the exceptions to the corroboration requirements outlined above do not apply to this case. First, the record does not show, and the Veteran does not contend, that he was diagnosed with PTSD in service. See 38 C.F.R. § 3.304(f)(1). Next, the Veteran is not a combat veteran and the alleged stressor is not related to the Veteran's fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304(f)(2)-(3). Further, the Veteran was not a prisoner-of-war as outlined in 38 C.F.R. § 3.304(f)(4). Lastly, the Veteran's PTSD claim is not based on an in-service personal assault. 38 C.F.R. § 3.304(f)(5). As the exceptions to the corroboration requirements do not apply to the instant case, the Board finds that credible supporting evidence regarding the Veteran's claimed stressor is required. In a May 2016 statement, the Veteran reported that he witnessed two traumatic events during combat training at Camp Lejeune and Camp Geiger. Specifically, the Veteran stated that he witnessed a friend step on a mortar and blow up, never to be seen again. He also stated that he witnessed the death of a flame thrower who was engulfed in flames after being blown up by his tank. The Board's review indicates that service treatment and military personnel records are silent for any indication of either incident reported by the Veteran. This finding is consistent with an April 2020 letter from the Veteran's representative, which states that the Veteran did not disclose his in-service stressor event to any medical professionals or superiors during his time in the military, and that the military records would be silent for the reported stressors. Moreover, the record does not contain additional lay or other evidence regarding the reported stressors. Aside from the Veteran's lay statements, the only corroborating evidence in the record regarding the occurrence of an in-service stressor event is a May 2016 private medical opinion from a psychiatric nurse practitioner, which states that it is more likely than not that the Veteran's PTSD was caused by traumatic in-service events. As noted above, however, credible supporting evidence cannot consist solely of after-the-fact medical nexus evidence. In addition, the private provider did not either specify the in-service events referenced in the opinion or find that they likely occurred. The provider simply stated that it was more likely than not that the Veteran's PTSD was caused by traumatic events in service. In an April 2020 letter, the Veteran's representative argued that, under the Court's ruling in Menegassi v. Shinseki, the May 2016 private medical opinion is sufficient supporting evidence that the in-service stressor event occurred, and therefore additional corroborating evidence is unnecessary. See Menegassi v. Shinseki, 683 F.3d 1379 (2011). In Menegassi, the Court held that under 38 C.F.R. § 3.304(f)(5), a medical opinion may be used to corroborate the occurrence of a personal-assault stressor. The Board notes, however, that both 38 C.F.R. § 3.304(f)(5) and the ruling in Menegassi are limited to cases of in-service personal assault. Here, the Veteran is alleging that his in-service stressor is due to traumatic events that he witnessed; he is not alleging an in-service stressor due to personal assault. Therefore, the exception outlined in 38 C.F.R. § 3.304(f)(5) and the holding in Menegassi are not applicable to this case and credible supporting evidence regarding the in-service stressor is required. Given the above, the Board finds that the record does not contain sufficient corroborating evidence of an in-service stressor. As previously noted, service treatment and military personnel records are silent for any evidence of the Veteran's claimed stressors. Further, while the Veteran has provided compelling lay statements regarding an in-service stressor event, his lay statements alone are not enough to establish the occurrence of the reported event. No additional lay evidence has been submitted and, while the Veteran submitted a private medical opinion, credible supporting evidence cannot consist solely of after-the-fact medical nexus evidence. Thus, the May 2016 private medical opinion, by itself, is insufficient to corroborate the Veteran's in-service stressor. The Board therefore concludes that, while the Veteran has a current diagnosis of PTSD, the evidence does not show that his PTSD began in service or is based on a confirmed in-service stressor. Accordingly, service connection is not warranted. 38 C.F.R. § 3.303, 3.304. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Akkad 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED