Citation Nr: 1338751 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 07-32 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In April 2011 the Board remanded the case to the RO for additional development, which has been accomplished. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran did not serve in combat and has not shown a credible, verified or verifiable noncombat-related in-service stressor. 2. The Veteran does not have a psychiatric disorder that is etiologically related to service. CONCLUSION OF LAW The requirements for establishing service connection for a psychiatric disorder to include PTSD have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Appropriate notice was provided to the Veteran in September 2005 and May 2006. The Veteran has not identified any prejudice due to error in the content or timing of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). His claim was last adjudicated in an April 2012 supplemental statement of the case. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The RO has obtained personnel records relating to the Veteran's period of active service, and has also obtained post-service VA and private treatment records from providers identified by the Veteran, as well as the Veteran's disability file from the Social Security Administration (SSA). The Veteran was notified of his entitlement to a hearing before the Board in conjunction with the appeal, but he declined such a hearing. Service treatment records (STRs) are not available and are presumed to have been lost or destroyed while in Government custody. In such a situation, VA's duty to assist is heightened and includes an obligation to search for other forms of records that support the claimant's case. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Moore v. Derwinski, 1 Vet. App. 401 (1991). The record shows that the additional duty to assist has been satisfied; see RO Memo Formal Finding on the Unavailability of Service Records dated in August 2007, documenting that the RO has searched for alternative sources for such records and that further efforts would be futile. The Veteran has also been advised that STRs are not available and has been asked to provide any STRs that are in his personal possession. The Board previously remanded the case for additional medical examination, which was performed in January 2012. The Board has reviewed the examination reports and finds the RO substantially complied with the Board's remand directive. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board also finds that the medical evidence of record is sufficient at this point for the Board to adjudicate the appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issues on appeal. Legal Principles Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection specifically for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms an in-service stressor; and, (3) credible supporting evidence that the in- service stressor occurred. 38 C.F.R. § 3.304(f). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. When service treatment records have been destroyed, VA has a heightened obligation to consider the benefit-of-the-doubt rule, to assist the claimant in developing his claim and to explain its decision. Ussery v. Brown, 8 Vet. App. 64 (1995). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence and Analysis The Veteran's service personnel records are on file, and document that the Veteran served on the USS Wasp from May 1968 to October 1969. As noted above, his service treatment records (STRs) are not on file and are presumed to have been lost or destroyed while in government custody. When service records are lost, case law does not lower the legal standard for proving a case of service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran had a PTSD screen in October 2004 in which he denied that he experienced an event that was so frightening, horrible, or upsetting that in the past month he had nightmares or thought about it when he did not want to; was constantly on guard, watchful or easily startled; or felt numb or detached from others, activities or surroundings. The screen was reported as being negative. There is no record of any complaint of psychiatric problems prior to May 2005, when he complained to his VA attending physician of nightmares related to trauma during service. The VA physician thereupon referred the Veteran for mental health assessment. The Veteran had a VA mental health assessment in May 2005 in which he reported two specific stressors in service. The first stressor was witnessing an accident in which an arresting cable snapped while an aircraft was landing on the Wasp; on being cut the cable hit a crewman on the flight deck, cutting him in half and killing him instantly. The second stressor was witnessing an accident in which a Petty Officer Second Class fell overboard during refueling and was killed by sharks before he could be rescued. The Veteran reported having been friends with both persons. The Veteran endorsed flashbacks, intrusive thoughts and distressing dreams related to these incidents. The examiner, a psychologist, performed a mental status evaluation (MSE) and noted observations in detail. The psychologist diagnosed dysthymia, generalized anxiety disorder (GAD) and rule out major depression with psychotic features. The psychologist stated the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD; when this was explained to the Veteran he expressed his disappointment at not being diagnosed with PTSD. The Veteran was referred for follow-up treatment. Thereafter, in a follow-up treatment note dated in October 2005 a VA psychiatrist diagnosed major depression, dysthymia, PTSD and alcohol abuse. In his claim for service connection, received in September 2005, the Veteran asserted onset of PTSD in August 1968. In November 2005 he submitted a stressor statement reiterating the two fatal accidents cited above. In May 2006 a VA psychologist diagnosed chronic PTSD, recurrent major depression, dysthymic disorder and alcohol dependence in early remission. In diagnosing PTSD the psychologist cited the two in-service stressors previously reported by the Veteran (crewman killed by an anchor cable and crewman killed by sharks). A November 2006 VA treatment note shows current diagnoses of PTSD; depression not otherwise specified (NOS); and, alcohol and cannabis dependence, both in full sustained remission. In January 2007 the diagnosis of depression NOS was changed to major depressive disorder (MDD); the other diagnoses were unchanged. In May 2006 the RO submitted a request to the Center for Unit Records Research (CURR) for verification of the two reported in-service stressors. In May 2007 CURR responded that review of the Wasp's command history and deck logs from 1968 did not show an occurrence in which a sailor had been killed by an aircraft retaining cable or an occurrence in which a sailor was lost at sea and attacked by a shark. During VA clinical treatment in April 2007 the Veteran cited a new in-service stressor in the form of a fire aboard ship that was causing him to have current nightmares. In September 2007 the Veteran reported to a VA mental health clinician that he was currently having nightmares about friends dying in combat in Vietnam and having feelings that he also was in combat. In December 2007 a VA psychiatrist entered a diagnosis of PTSD as secondary to the Vietnam War. In September 2009 the same VA psychiatrist diagnosed "PTSD (Vietnam related)," a diagnosis he consistently repeated in treatment notes through August 2013. The Board notes at this point that the Veteran's service personnel record clearly demonstrates that he did not serve in Vietnam. Similarly, the command history of the USS Wasp shows the Wasp did not participate in combat operations during the Vietnam War and that during the period of the Veteran' service the Wasp cruised exclusively in Atlantic, Mediterranean and Caribbean waters. In January 2008 VA psychologist Dr. BB submitted a letter in support of the Veteran's claim asserting that he had diagnosed the Veteran with PTSD as due to three service-related traumas: (1) observing a man get cut in half by a cable on the flight deck; (2) observing a "horrific" fire below deck; and, (3) observing a close friend fall overboard and be killed by sharks. In May 2011 the RO sent a request to the National Archives and Records Administration (NARA) for verification of the shipboard fire cited by the Veteran. The response from the U.S. Joint Services Records Research Center (JSRRC) was that review of the command history showed a fire broke out on the Wasp on January 6, 1969, but this fire was contained within 20 minutes and caused no casualties; there were no other fires reported during the remainder of the year. However, NARA provided desk logs from the USS Wasp for the period March 1969 to October 1969 that showed several minor fires during the period: a fire in March 1969 at Quonset Point that caused minimal damage and no casualties; a fire in April 1969 at sea in which a sailor suffered a cracked rib; a false alarm at sea later in April 1969; and, a fire in August 1969 at Quonset Point with no reported casualties or damage assessment. The Veteran had a VA examination in January 2012, performed by a psychologist who reviewed the claims file and noted the three in-service stressors reported by the Veteran (witnessing a friend get swept overboard and eaten by sharks, witnessing a sailor cut in half by an arresting cable and witnessing sailors "burning" while putting out a "horrific" fire while anchored in Quonset, Rhode Island). The Veteran endorsed a history of depression since service. The examiner performed an MSE and noted clinical observations in detail. The examiner specifically found the three stressors reported by the Veteran were each adequate, by itself, to support a diagnosis of PTSD, but also noted that none of the reported stressors were related to fear of hostile military or terrorist activity. The examining psychologist diagnosed PTSD as due to the three in-service stressors reported by the Veteran. The examiner also diagnosed MDD, recurrent and moderate, without psychotic features; the examiner stated the depressive symptoms overlapped the PTSD symptoms and related particularly to the shark attack incident. The examiner stated that it was not possible to differentiate the symptoms attributable to those related to PTSD versus those attributable to MDD. The examiner stated that both diagnoses (PTSD and MDD) are deemed to be at least as likely as not related to the Veteran's claimed military stressors. The veracity of these stressors could not be substantiated, based on evidence available in the claims file, but despite insufficient evidence the Veteran's claims were considered to be plausible based on his symptomatology and concomitant deficits in social and occupational functioning, which were "somewhat consistent" with the self-reports of other veterans having PTSD and depression from similar traumatic events. Also, the Veteran reported his symptoms became more prominent after he stopped self-medicating with alcohol and drugs, a well-known phenomenon among veterans with co-occurring PTSD and substance use disorders. In regard to PTSD, while the record shows a competent diagnosis, service connection for PTSD cannot be established without the existence of a verified or corroborated stressor. The evidence necessary to establish the occurrence of a recognizable stressor during service varies depending on whether the veteran "engaged in combat with the enemy." West v. Brown, 7 Vet. App. 70, 76 (1994). The Veteran in this case does not specifically assert, and the evidence of record does not suggest, that he engaged in combat or that his claimed stressors relate to combat. The evidence required to support the occurrence of an in-service stressor varies depending on whether the appellant was engaged in combat with the enemy. If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of such veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (2013). Where the record does not establish that a veteran engaged in combat with the enemy, his assertions of in-service stressors, standing alone, cannot provide evidence to establish an event claimed as a stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, he must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). However, effective July 13, 2010, VA amended its PTSD regulations by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010). Essentially, the amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the claimed in-service stressor is related to "fear of hostile military or terrorist activity." As such is not alleged here, the revised provisions do not affect the outcome of this claim. The Board finds at this point that the Veteran's reported in-service stressors are not credible. The two fatalities he reports (sailor killed by a flailing arresting cable and Petty Officer washed overboard to be killed by sharks) are significant events that would have been reported in the ship's deck log; the fact that the ship's command history and the ship's deck log are both utterly silent in regard to those incidents serves as persuasive evidence they did not occur. NARA and JSRRC are also unable to document either fatality. The Board also notes that the Veteran reported both men who were killed were his friends, and he even reports that he gave a haircut to the Petty Officer a short time before he was killed by sharks, but he has not named the sailor who was cut in half by the cable, and he has provided two different names for the Petty Officer who was killed by sharks ("Petty Officer Harris" versus "Petty Officer Howard"). Interestingly, however, in June 2006 he reported to a VA clinician that he often remembers the "exact conversation he had [with] his friend prior to the accident" and also denied problems with memory of the events. However, he could not accurately recall the friend's name when asked to do so by the RO. Turning to the third reported incident - a "horrific" fire at Quonset Point during which he witnessed "sailors burning" - the ship's log documents two minor fires at Quonset Point. The first fire (March 1969) was a Class Charlie (electrical) fire in the steering compartment that was extinguished in 55 minutes; the second fire (in August 1969) was a Class Alfa (ordinary combustibles) fire that was under control in three minutes. Neither fire is shown to have resulted in casualties or any significant damage. Again, a "horrendous" fire as described by the Veteran would have been routinely recorded in the deck log, and the minor fires that are recorded in the log serve as evidence that the major event described by the Veteran did not actually occur. His contentions of seeing sailors burning are also inconsistent with official reports of minor fires and no casualties. Further, this stressor was not initially reported when first seeking treatment. Moreover, in a 2006 treatment record, he reported having nightmares of his friends dying in combat in Vietnam. However, the Veteran did not serve in Vietnam. In short, the lack of report of these significant stressors in command histories, the discrepancy between the Veteran's report of a "horrific fire" and witnessing "sailors burning" versus the official records noting only minor fires with no casualties, his failure to mention the fire stressor on initial presentation, and the completely negative PTSD screen less than a year before his first presentation for nightmares raises a serious question as to the reliability of the information being provided. As such, the Board concludes the allegations regarding stressors and onset of symptomatology are not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). Just because a physician or other health care professional has accepted appellant's description of his active duty experience and diagnosed the appellant as suffering from PTSD does not mean the Board is required to grant service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this case, as the Veteran has not established a corroborated in-service stressor. While the Veteran has been diagnosed with PTSD, the diagnoses were based on the unconfirmed stressors, to include seeing burning soldiers. As these stressors have been found to lack credibility, the diagnoses have no probative value. Accordingly, in the absence of a corroborated stressor, the Board finds the criteria for service connection for PTSD are not met. Turning to the diagnosis of MDD, the examining psychologist stated that such diagnosis, like the diagnosis of PTSD, is based on the in-service stressors reported by the Veteran. As those stressors are not considered to be credible, it follows that service connection cannot be granted for MDD that is due to such stressors. Likewise, the other psychiatric diagnoses in the record, to the extent a link to service was suggested, was based on the history of stressors and onset of symptoms reported by the Veteran. As the Veteran's contentions have been found unreliable, any diagnoses based upon such have no probative value. Based on the evidence and analysis above the Board finds the Veteran does not have a psychiatric disorder that is related to service. Accordingly, the criteria for service connection are not met and the claim must be denied. There is a heightened obligation to carefully consider the benefit-of-the-doubt rule where records were presumably destroyed while in custody of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board has accordingly carefully considered the benefit-of-the-doubt rule, but finds the rule does not apply because the preponderance of the evidence is against the claim. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for a psychiatric disorder, to include PTSD, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs