Citation Nr: A24029711 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 200305-73782 DATE: June 6, 2024 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED The issue of entitlement to service connection for a head injury (also claimed as blackouts) is remanded. The issue of entitlement to service connection for a right hip injury (also claimed as hip replacement) is remanded. The issue of entitlement to service connection for a left hip injury (also claimed as hip replacement) is remanded. FINDING OF FACT The weight of the evidence fails to demonstrate that the Veteran's PTSD manifested during service or is otherwise related to any in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to July 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the March 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held in January 2024. Therefore, the Board may only consider the evidence of record at the time of the February 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. No evidence was received within 90 days of the hearing. The Veteran was advised at the hearing that the deadline for evidence submission was April 8, 2024. He submitted two lay statements that were received on May 3, 2024, so they cannot be considered. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim of service connection for PTSD considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of service connection for a head injury, right hip injury, and left hip injury, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to service connection for posttraumatic stress disorder (PTSD) The Veteran seeks service connection for PTSD, which he contends is due to an in-service assault. See May 2019 VA Form 21-0781a Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). There are specific requirements for entitlement to service connection for PTSD outlined in 38 C.F.R. § 3.304 (f). One specifically required element is "credible supporting evidence that the claimed in-service stressor occurred." Except for the circumstances outlined in 38 C.F.R. § 3.304 (f)(1)-(4) (relating to in-service diagnosis of PTSD; combat; fear of hostile military or terrorist activity; POWs), a veteran's lay statements alone cannot establish the occurrence of a stressor. Whether there is credible supporting evidence is a finding of fact. If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. The evidence can include records from law enforcement authorities; pregnancy tests or testing for sexually transmitted diseases; statements from friends, family or clergy; or evidence of behavior changes. Examples of behavior changes may include a request for transfer; deterioration in work performance; substance abuse; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f)(5). This type of indirect evidence of an in-service assault tends to prove that the assault occurred by corroborating details of the Veteran's account of the events that transpired as a result of that attack. See Molitor v. Shulkin, 28 Vet. App. 397, 409 (2017) (explaining that records that corroborate details of a personal assault tend to reinforce and confirm a claimant's description of the assault). Further, 38 C.F.R. § 3.304 (f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the Court erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence'" in personal-assault cases); see also 67 Fed. Reg. 10,330, 10,331 (Mar. 7, 2002) ("If, however, VA finds that a doctor's diagnosis of PTSD due to a personal assault is,... 'competent and credible' and there is no evidence to the contrary in the record, in all likelihood, such an opinion would constitute competent medical evidence."). Unlike in other PTSD claims, in PTSD claims based on personal assault, an after-the-fact medical opinion can serve as credible supporting evidence of the stressor, either on its own or in conjunction with the other evidence of record. Menegassi, 638 F.3d 1379. Finally, the Board must assess the credibility and probative value of the Veteran's lay statements. See Miller v. Wilkie, 32 Vet. App. 249, 262 (2020) (holding that "when the record includes the veteran's lay reports, which the Board did not find to be not credible, [the Court] may ordinarily conclude that it made an implicit credibility determination" because "[i]f something as fundamental as the veteran's credibility were an issue, we would expect the Board to say something"). The Board, as the fact finder, must determine the credibility of evidence. When weighing the credibility of evidence, the Board may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and the demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). After determining the competency and credibility of evidence, the Board, as fact finder, must then weigh its probative value. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics and its relationship to other items of evidence"). The Board notes that a claim for compensation includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Thus, the Board considers all psychiatric symptoms in the record in addition to the claimed PTSD. The Veteran's STRs are silent as to any complaints regarding psychiatric issues. The Veteran reported no psychiatric issues on his June 1969 entrance examination or June 1971 separation examination. Further, a June 1983 Navy Reserve examination shows that the Veteran reported no psychiatric issues. The Veteran's military personnel records show that the Veteran had one instance of unauthorized absence on April 20, 1971, for approximately two hours. The Veteran's VA treatment records show that the Veteran had consistently denied psychiatric symptoms during his interactions with VA until December 2018. However, the Veteran reported during a May 2006 PTSD screening that he had experienced a stressful event but did not say what that stressful event was or when it occurred. He denied having been bothered by the stressful event in the past month. At a December 2018 mental health consultation, the Veteran reported symptoms of irritable mood, nightmares, and flashbacks. He stated that he had never been involved in mental health treatment before, and that recent stressors with a supervisor at work were making his symptoms worse. He reported that he felt he was treated unfairly at work, and it triggered memories of racial discrimination from his time in the service. He reported being beat up several times and seeing three sailors who had been hung while in the military. At a February 2019 appointment to establish mental health services, the Veteran noted past mistreatment in the military, and said things have been worse since an incident at work in October/November where he walked off his job after a conflict with his supervisor. He denied memory loss, hopelessness, helplessness, panic, anxiety, paranoia, hallucinations, and suicidal ideation. He endorsed exposure to a stressor, intrusive thoughts, flashbacks, and memories surrounding an event. The Veteran reported during a May 2019 mental health session that he experienced mistreatment in the military due to racism. The Veteran submitted a VA Form 21-0781a, Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault, in May 2019. He reported that in August 1970, while he was in service, a Master Chief he reported to constantly used a racial slur to address him. He stated that the weekend after meeting with this Master Chief, he was assaulted by four sailors who used the same racial slur the Master Chief used to address him. He stated that he was not present for duty the following Monday and was punitively given disciplinary action for three days by the same Master Chief, and then sent to work in supply until the end of his enlistment. He reported receiving treatment after the attack, but was not certain as to where. He stated that he has suffered from this event ever since. The Veteran presented for a VA examination in August 2019. The examiner noted a diagnosis of PTSD that results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he was assaulted by four or five people while in service, who used a racial slur during the assault. He stated that he missed three days of work and was punished with extra duty. The examiner noted that they could not locate any markers to support the Veteran's contention of a personal assault. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner did not provide a nexus opinion. The examiner from the August 2019 VA examination was asked to provide an opinion in September 2019, but did not provide a nexus opinion. Instead, the examiner opined that the medical evidence of record was consistent with the claimed assault because the Veteran received treatment for PTSD. VA found this opinion to be insufficient and obtained an opinion in February 2020. The examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's PTSD was incurred in or was caused by the claimed in-service assault. The examiner explained that although the Veteran was diagnosed with PTSD, there were no verified stressors or markers to substantiate a stressor to find a nexus between his PTSD symptoms and his service. The examiner noted that no markers were found in the record. The Board finds the February 2020 VA opinion to be adequate and probative, as it is based on review of the claims file, reflects consideration of the Veteran's prior medical history, and includes detailed rationale in support of its conclusions. The Board has considered whether the Veteran's reported assault can be corroborated by either indirect evidence (Molitor), medical evidence (Menegassi), and/or lay evidence (Miller). Initially, the Board finds that the Veteran is not credible. Discussed in detail above, the Veteran initially reported the in-service assault on a May 2019 VA Form 21-0781a. He wrote that he was punitively given disciplinary action for three days by the same Master Chief, and then sent to work in supply until the end of his enlistment. He reported receiving treatment after the attack but was not certain as to where he received treatment. He stated that he has suffered from this event ever since. However, subsequent statements made regarding the aftermath of the attack are inconsistent with this version of events. He reported the same incident during an August 2019 VA examination, but also reported that some of his leave time was taken from him, and then he was made to scrub pots in the kitchen. He did not provide details of the reported attack during his January 2024 Board hearing, but he denied ever seeking treatment afterward. Further, the Board expressly finds that the claim that the Veteran has suffered since the alleged incident is not credible. VA treatment records in the file date back to January 1999, and the Veteran initially sought VA compensation for other disabilities as early as July 1971, the month he separated from service. He also denied knowing "anything was wrong with [him]" at the January 2024 Board hearing. The Veteran did not seek treatment until December 2018, shortly before first applying for service-connection for PTSD in May 2019. Although the Veteran had the ability, then, to seek medical treatment for PTSD, he did not do so until approximately 47 years after service separation. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology and weighs heavily against the claim. During the time between January 1999 and December 2018, the Veteran utilized the VA medical system and sought treatment for a variety of medical conditions. However, he never reported any psychiatric issues and regularly scored negative on PTSD screenings conducted by VA dating as far back as March 2006. This is not an instance where the Board is treating the absence of evidence of treatment for or complaints of psychiatric symptoms as substantive negative evidence that the Veteran did not experience continuous symptoms after service. Rather, there is a difference between the absence of evidence and the existence of negative evidence. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (en banc) (Mayer, C.J., dissenting) (distinguishing between the existence of negative evidence and the absence of actual evidence)). The Veteran's history of filing VA claims also weighs against finding his allegations of post-service symptoms since the alleged assault. He filed a claim for compensation in July 1971, and a claim for VA pension benefits in May 2004, but did not claim a psychiatric condition at those times. If he had, in fact, been having psychiatric symptoms since an in-service assault, it is reasonable to expect he would have claimed such in 1971 or 2004, as he was filing claims with VA, especially considering the 1971 claim when he filed for conditions he believed were a result of his military service. He also denied any psychiatric symptoms on his June 1983 Naval Reserve examination. As to potential stressor corroboration by indirect evidence per Molitor, the Board finds that such evidence is insufficient to corroborate the claimed stressors in light of the Veteran's lack of credibility. A review of the Veteran's service records notes one unauthorized absence during his time in service that occurred on April 20, 1971, that lasted under two hours. This unauthorized absence is not consistent with what the Veteran previously reported (either missing one day or missing three days), and it took place many months after the alleged incident. See also Personnel Leave Record. The Veteran's personnel records contain no indication that he was subjected to disciplinary actions then sent to supply. The Veteran had stated inconsistently that he sought treatment after the assault or he did not and that it may have happened at the military base or through his home doctor or it was only his mother that treated him. Regardless, the service treatment records show no relevant treatment, nor does his leave record show he took time off around August 1970. As to potential stressor corroboration by medical evidence per Menegassi, the Board finds that such evidence is insufficient to corroborate the claimed stressors. The Board notes that the September 2019 examiner did not render a nexus opinion but instead opined that the medical evidence of record was consistent with the claimed assault merely because the Veteran received treatment for PTSD. The Board finds this opinion to be inadequate because it is conclusory, does not provide a rationale, does not appear to consider the entire claims file, and is largely based on the Veteran's lay statements that the Board has found not supported by other evidence. The examiner noted that the Veteran reported personal assault at his August 2019 VA examination. However, the examiner noted on the August 2019 VA examination that they could not locate any markers to support personal assault and appeared to make their conclusion solely based on the Veteran's lay statements. As noted above, the February 2020 VA opinion provided an adequate rational in rendering a negative nexus opinion and noted that there was no evidence to verify the claimed assault. The Board recognizes the Veteran's sincere belief that his PTSD is due to service. However, he is not competent to determine that his PTSD is related to any in-service event, as he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or opinion as to medical causation. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify"); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his opinion as to etiology is afforded no probative weight, and the Board gives more probative weight to the competent medical evidence. For the above reasons, the evidence persuasively weighs against entitlement to service connection for PTSD. As the evidence is neither evenly balanced nor approximately so, the benefit of the doubt doctrine does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). For these reasons, the claim is denied. REASONS FOR REMAND 1. The issue of entitlement to service connection for a head injury (also claimed as blackouts) is remanded. Under the Appeals Modernization Act (AMA), the Board must remand appeals to the RO to correct pre-decisional duty to assist errors. See 38 C.F.R. § 20.802 (a). Here, the Board's review of the record reveals a duty to assist error that occurred prior to the February 2020 rating decision; therefore, remand is required. The Veteran seeks service connection for a head injury that results in blackouts, which he contends is due to experiencing a head injury while playing football in service. See May 2019 VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits. The Board notes that the Veteran was not afforded a VA examination or opinion. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.159 (c)(4) provides that an examination or opinion is necessary if the evidence of record: 1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; and 2) establishes that the Veteran suffered an event, injury, or disease in service; and 3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but 4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. The Court noted that the third prong of 38 C.F.R. § 3.159 (c)(4) is a "low threshold" standard. Here, regarding the first prong, the Board finds that the Veteran's VA treatment records indicate that the Veteran has a condition that has been characterized as recurring syncopal episodes. See August 2017 VA treatment record. Regarding the second prong of McLendon, a Veteran's lay testimony can establish an in-service incurrence of an injury or disease. See e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); McLendon v. Nicholson, 20 Vet. App. 79, 83-84 (2006). The Board finds that the Veteran is competent to report the events of his service, and the descriptions he provided of events during service reasonably satisfy the second prong of McLendon. [The credibility of those statements will be assessed when the claim is considered on the merits.] Regarding the third prong, the Veteran's lay statement on his VA Form 21-526EZ indicates a possible connection between the Veteran's service and his current blackouts. The Board finds that this lay statement satisfies the third prong of McLendon. Further, the Board finds that the evidence of record does not contain sufficient medical evidence for the Board to make a decision on the claim at this time. The evidence described above was in the record prior to the February 2020 rating decision. Thus, the RO's failure to obtain a VA opinion was a pre-decisional duty to assist error. 2. The issue of entitlement to service connection for a right hip injury (also claimed as hip replacement) is remanded. 3. The issue of entitlement to service connection for a left hip injury (also claimed as hip replacement) is remanded. A December 2009 treatment record notes that the Veteran underwent a hip replacement a "St. V's." in November 2009. These private medical records are not associated with the claims file. A March 2016 VA treatment note reports that the Veteran went to St. Vincent's East for an unrelated matter, which may be the "St. V's" mentioned in the December 2009 treatment record. As these records may contain evidence relevant to the Veteran's claim, and this information was in the record prior to the February 2020 rating decision, a remand is required to allow VA to obtain authorization and request these records. 38 C.F.R. §§ 20.802 (a). As the Veteran's claim for a left hip injury is secondary to his claim for a right hip injury, this issue must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for St. Vincent's. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. If any requested records are not obtained, notify the Veteran. In the alternative, the Veteran can submit any private records he has in his possession. 2. Schedule an examination to obtain a medical opinion as to the etiology of the claimed head injury. After complete review of the claims file, the examiner should respond to the following: Is the Veteran's claimed head injury at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to his active service? In forming a conclusion, the examiner should assume the Veteran's statements about his symptoms are credible, unless they are inconsistent with the medical evidence or with medical principles concerning his condition(s). The Board emphasizes that this does not constitute a positive credibility determination, as the Board will weigh the evidence once the appeal returns. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In doing so, the examiner may identify any discrepancies, inconsistencies, or contradictions contained in the evidence of record, and may state whether or not the Veteran's lay statements are supported by medical or other evidence. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dorsey, J.T. 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.