Citation Nr: A24029736 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 190628-22451 DATE: June 6, 2024 ORDER Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The persuasive evidence of record persuasively weighs against finding that the Appellant's currently diagnosed psychiatric disability was manifest during service or for many years thereafter, and the Appellant's currently diagnosed psychiatric is not otherwise etiologically related to his active service. CONCLUSION OF LAW The criteria to establish entitlement to service connection for a psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1985 to September 1995. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This matter is on appeal from a May 2019 rating decision. In June 2019, the Veteran filed a Form 10182 Decision Review Request: Board Appeal and selected the AMA Hearing lane which allows the Board to consider the evidence of record at the time of the AOJ decision on appeal, additional evidence submitted on the date of the Board hearing (including testimony), and additional evidence submitted within 90 days of the hearing. In September 2022, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is associated with the record. Consequently, the Board may consider evidence submitted through the May 23, 2019, rating decision in this case, any additional evidence submitted on the date of the September 6, 2022, Board hearing (including testimony), and any additional evidence submitted within 90 days of the September 6, 2022, Board hearing. The Board will not consider evidence added to the record between the May 23, 2019, rating decision and September 6, 2022, hearing, nor any evidence added following the expiration of 90 days from the September 6, 2022, hearing. If evidence was added to the record during an ineligible period identified above, the Board has not considered that evidence. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. Although the Veteran has specifically claimed service connection for PTSD and depression, the record contains other psychiatric diagnoses, in addition to PTSD. Accordingly, his claim has been expanded to include service connection for an acquired psychiatric disorder, to include PTSD, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 2009). In May 2023, the Board issued a decision which denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, including PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2023, the Court granted a Joint Motion for Remand (JMR), and issued an Order that remanded the case to the Board for readjudication and disposition consistent with the JMR. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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 for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). A PTSD diagnosis must also be made a VA psychiatrist or psychologist. Id. Diagnoses of mental disorders must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM- IV). Id., see also 38 C.F.R. § 4.125(a). In August 2014, VA amended 4.125 by changing DSM-IV to DSM-5. See Fed. Reg. 45093 (Aug. 4, 2014). Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran's 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 a veteran's 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 that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See id. In Hall v. Shinseki, the United States Court of Appeals for the Federal Circuit held that 38 C.F.R. § 3.304(f)(3) applies "only if a veteran's claimed in-service PTSD stressor relates to an event or circumstance that a veteran experienced, witnessed, or was confronted with and that was perpetrated by a member of an enemy military or by a terrorist." 717 F.3d 1369, 1372 (Fed. Cir. 2013). If a claimed stressor is not related to combat or fear of hostile military or terrorist activity, then a veteran's lay statements, alone, would not be sufficient to establish the occurrence of the alleged stressor; rather, corroborating evidence would be needed to support the claim for service connection. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). See also Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); Doran v. Brown, 6 Vet. App. 283, 289-290 (1994). Procedural history Before addressing the merits of this appeal, the Board must explain the procedural history of this case: The Board initially adjudicated the issue now before it in a May 2023 decision, in which the Board denied entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In the December 2023 JMR, the Parties found that the Board erred when it failed to provide adequate reasons or bases in adjudicating whether the Appellant's acquired psychiatric claim related to his service. The Parties found that the Board's analysis focused on the Appellant's PTSD diagnosis and whether there was a verified in-service stressor related to that diagnosis. However, regarding his broader acquired psychiatric claim, the Board failed to determine whether the Appellant's other psychiatric diagnoses were related to his service, to include the same experiences that the Board found insufficient to constitute a PTSD stressor. The Parties determined that remand was warranted for the Board to determine in the first instant whether service connection would be warranted for an acquired psychiatric disability based on his reported in-service stressors. In the instant decision, the Board endeavors to address precisely what the Parties found deficient in the now vacated portion of the May 2023 Board decision that denied entitlement to service connection for an acquired psychiatric disorder, including PTSD. Analysis The Appellant seeks service connection for PTSD which he contends is due to traumatic events in service. Although the record shows a diagnosis of PTSD, the diagnosis is not based upon the findings of a VA or VA contracted psychologist that the diagnosed condition was due to combat or fear of hostile military or terrorist activity and the Appellant's statements alone do not confirm his claimed stressor in this case. The Appellant's service treatment records (STRs) are silent as to any psychiatric complaints or findings. A review of the evidence demonstrates that the Appellant served as a signals intelligence analyst and that he received top secret security clearance in October 1985. Post-service VA treatment records include a January 2019 mental health intake consultation which shows that the Appellant explained that he felt his reaction to the loss of his stepsister was not right and that he was bothered by his dispassion, numbness, and disconnection from his experience and from others. He stated that he worked in intelligence and needed to be careful about what was disclosed or documented about the specifics of classified yet traumatic experiences. He reported that during service, he was in a situation that he felt his life was in danger and that he experienced intrusive thoughts and numbness. The evaluating psychologist concluded that the Veteran had severe PTSD. A January 2019 depression screening score was positive. In a later January 2019 treatment note, the treating psychiatric nurse practitioner noted that the Appellant's case was difficult because his symptoms indicated PTSD but also might be related to childhood trauma and job training. In April 2019, the Veteran submitted a statement explaining that in April 1986 LaBelle Discotheque in West Berlin was bombed about three miles from the Veteran's first duty station. He further stated that around the same time a member of U.S. intelligence was targeted by a KGB agent who tried to turn him and around the same time an airman who looked like an operative was killed and his Id was used to set a bomb. The Veteran explained that, as a member of U.S. Intelligence, he was a high priority target, and that this event and others made him wary and led to him having a situational awareness that never left him. In its May 2019 rating decision, the RO denied service connection based on a finding that the Veteran was stationed in Germany from December 1986 to August 1989 and from April 1991 to March 1994, and that the Veteran did not serve in Germany when the West Berlin bombing occurred. At his September 2022 Board hearing, the Appellant testified that when he arrived in Berlin a bombing had occurred which targeted service members. He stated that he was hyperaware of how he was an outsider and that having to be hyperaware in his position in intelligence made it very hard to make personal attachments. He stated that he just became aware of it the year prior when his sister-in-law died, and he didn't feel anything. He explained that he was a high target for foreign operatives and that this took its toll. Regarding PTSD, establishment of 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). In this regard, the Appellant's VA treatment records show that a diagnostic impression of PTSD was not made until January 2019, over twenty years after separation from service, and the Veteran states that he noticed symptoms after the death of his sister-in law a few years ago. The record is also negative for lay evidence to corroborate the occurrence of the self-reported stressors such as lay statements from his fellow service members. To that end, as the Appellant's claimed stressor is not verified by probative evidence or incapable of corroboration, any diagnosis of PTSD based upon such unverified stressor cannot serve as the basis to establish service connection for PTSD. 38 C.F.R. §§ 3.304 (f), 4.125(a). Meaning, without evidence verifying that a claimed stressor event happened, it is not possible to grant service connection for PTSD. Moreover, the Appellant's claimed stressor is not shown to be one that meets the criteria of fear of hostile military or terrorist activity such that a stressor could be confirmed without additional evidence. Here, the Appellant speaks of a more general fear of harm due to his position and events that occurred around the time he served and to others, but his claimed stressors do not reach the level of personal interaction described in 38 C.F.R. § 3.304 (f). Simply stated, the best medical evidence in this case provides highly probative evidence against the Appellant's claim for service connection for PTSD. Accordingly, the Board finds that the claim must be denied. The Board is persuaded that the evidence does not support a finding that the Appellant has PTSD that was incurred in or aggravated by his service. Regarding psychiatric disabilities other than PTSD, the Board finds that the claim must be denied. The Board is persuaded that the evidence does not support a finding that the Appellant has any psychiatric disability that was incurred in or aggravated by his service. In addition to the previously addressed medical records, VA treatment records include a March 2012 report which shows that the Appellant had no sadness, suicidal ideas, or anxiety. A depression screen was negative. Reports dated in January 2019 indicate that he did not meet criteria for depression or anxiety "despite his overwhelmingly apathetic state." He also had no complaints or signs of depression or anxiety. Another report indicates a positive depression screen. A March 2019 report indicates that the Appellant's mood was stable without depression or anxiety. The Board finds that the claim must be denied. The Board is persuaded that the evidence does not support a finding that the Appellant had any psychiatric disability that was incurred in or aggravated by his service. Moreover, the Appellant's STRs are void of any complaint or diagnosis of any psychiatric disability. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). The Board finds in this case that the lack of evidence of any psychiatric disability during service coupled with the fact that a psychiatric disorder was not diagnosed until 23 years post-service, is sufficient to rebut a finding of service incurrence. In this regard, the Board has considered the Appellant's reported experiences during service as a member of U.S. intelligence. However, there is no persuasive evidence of record relating any psychiatric disorder, including depression, to his reported traumatic experiences during service. In this case, the earliest post-service medical evidence of the Appellant's psychiatric disorder is 23 years after service. This long period without problems weighs against this claim. Moreover, the Board finds that his statements relating his psychiatric disorder to his service are not credible and are afforded no probative value. Finally, there is no competent medical evidence that the Appellant has any psychiatric disorder that is related to his service. Additional considerations The Board has taken the contention that the Appellant has a psychiatric disorder, including PTSD, that was caused by service, seriously. The Board has also closely reviewed the medical and lay evidence in the Appellant's claims file and finds no evidence that may serve as a medical nexus between the Appellant's service and his claimed disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the etiology of a psychiatric disorder, including PTSD, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above discussion, the Board is not persuaded that the evidence supports granting service connection for a psychiatric disorder, including PTSD. As such, this claim is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.