Citation Nr: 22038121 Decision Date: 07/05/22 Archive Date: 07/05/22 DOCKET NO. 15-16 058 DATE: July 5, 2022 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for an anxiety disorder is remanded. FINDINGS OF FACT 1. The Veteran has a valid diagnosis of PTSD. 2. The Veteran does not have a verified stressor. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1973 to June 1976 and received an honorable discharge. The Veteran served in the United States Navy from March 1978 to March 1980 and from March 1980 to April 1983, again receiving an honorable discharge. The Veteran also served in the United States Navy from April 1983 to March 1985. However, he received a discharge under other than honorable conditions for "misconduct drug abuse (use)." See DD-214s. The Board previously found the character of the Veteran's discharge from service is a bar to payment of VA compensation benefits for the period from April 25, 1983 to March 29, 1985. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Agency of Original Jurisdiction (AOJ). The Veteran appeared at an April 2022 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The matter was previously before the Board in February 2019. The appeal was remanded for the AOJ to verify the Veteran's claimed PTSD stressor. In April 2022, the Military Records Research Center found no evidence to support the claimed stressor. Thus, the Board determines that there has been substantial compliance with the February 2019 remand directives as to that claim and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for PTSD Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran must show: "(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, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). There are particular requirements for establishing service connection for posttraumatic stress disorder (PTSD). 38 C.F.R. § 3.304 (f); Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence of an in-service stressor; and (3) a link, established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304 (f). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he has PTSD as a result of falling into the ocean while attempting to board a ship in December 1979. In the instant case, the record reflects a July 2018 diagnosis of PTSD. Turning to the Veteran's claimed stressor the Board finds there is no credible supporting evidence that the claimed stressor occurred. The Board has reviewed the Veteran's records in their entirety and independently finds that the evidence does not establish that the Veteran fell into the ocean in or about December 1979. Moreover, the Military Records Research Center was unable to corroborate the Veteran's reported stressor. Where, as here, a claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the Veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors as there is no VA examiner who found them to serve as a basis of the diagnosis consistent with 38 C.F.R. § 3.304(f) regarding fear of hostile military or terroristic activity. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Cohen v. Brown, 10 Vet. App. 128, 142 (1997). The Board finds there is no credible, reliable, persuasive, or probative evidence in the record that the Veteran's claimed in-service stressor of falling into the ocean occurred. Thus, the evidence is persuasively against the claim for service connection for PTSD. The Board acknowledges that the U.S. Court of Appeals for Veterans Claims has held that when a veteran claims service connection, he or she is not claiming service connection for a specific diagnosis but for his or her symptoms regardless of the diagnosis, and the claim encompasses the underlying condition regardless of diagnosis. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). As such, the Board has considered whether service connection may be granted for conditions other than PTSD. In July 2018, a private doctor diagnosed the Veteran with Major Depressive Disorder (MDD) and Anxiety Disorder NOS. The Veteran is service connected for MDD. Service connection for an anxiety disorder is addressed in the remand portion of this decision. REASONS FOR REMAND Entitlement to service connection for an anxiety disorder is remanded. In addition to PTSD and MDD, the Veteran's private physician diagnosed the Veteran with anxiety in July 2018. Therefore, it is clear from the record that the Veteran had such a disability during the pendency of this claim. The Board notes the July 2018 doctor only provided an etiological opinion as to PTSD and MDD. The record does not contain an opinion as to whether the Veteran's anxiety disorder is related to his active-duty service, to include documented mental health symptoms and treatment. Therefore, a medical opinion on the etiology of the Veteran's anxiety disorder is necessary. The matters are REMANDED for the following action: 1. The AOJ should request a VA medical opinion to determine the etiology of the Veteran's anxiety disorder. A clear rationale for all opinions should be provided and the examiner should acknowledge review of all pertinent records in the Veteran's claims file including the July 2018 private medical opinion. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinions regardless of contemporaneous treatment. The examiner should state whether it is at least as likely as not that the Veteran's anxiety disorder was causally or etiologically related to his military service. The examiner should specifically comment on mental health treatment documented in the Veteran's June 1972 and April 1975 service treatment records. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. (Continued on the next page) 2. After ensuring completion of the above development, and any indicated development, if the issues on appeal remain denied, a supplemental statement of the case should be issued. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.