Citation Nr: A23021105
Decision Date: 08/22/23	Archive Date: 08/22/23

DOCKET NO. 191213-57844
DATE: August 22, 2023

ORDER

The application to readjudicate and reopen the claim of service connection for posttraumatic stress disorder (PTSD) is granted.

Entitlement to service connection for a skin disorder is denied.

Entitlement to service connection for obstructive sleep apnea is denied.

REMANDED

Entitlement to service connection for an acquired psychiatric disorder to include PTSD, an anxiety disorder, and depression is remanded.

FINDINGS OF FACT

1. A July 2017 rating decision most recently denied the application to reopen the claim of service connection for PTSD; the claimant did not appeal that decision; he did not submit new and material evidence within the one-year appeal period of the decision; and VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the decision which treatment records are new and material evidence.

2. Evidence received since the July 2017 rating decision is both new and relevant as to the claim of service connection for PTSD.

3. The most probative evidence of record shows that a skin disorder and obstructive sleep apnea were not present in service or until many years thereafter, they are not related to service or to an incident of service origin, and they are not an undiagnosed illness, are not a diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology, and are not a diagnosable chronic multisymptom illness with a partially explained etiology.

CONCLUSIONS OF LAW

1. The July 2017 rating decision is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

2. New and relevant evidence has been submitted sufficient to reopen the claim of service connection for PTSD.  38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501.

3. The criteria for service connection for a skin disorder and obstructive sleep apnea have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 1117, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309, 3.317.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty with the United States Navy from September 1985 to September 2005.

This appeal comes to the Board of Veterans' Appeal (Board) under the Appeals Modernization Act (AMA) review system.  See 38 C.F.R. §§ 3.2400 to 3.2601, 20.200 to 20.205; Also see 84 Fed. Reg. 138 (Jan. 18, 2019).

Specifically, the appeal comes to the Board from an August 2019 AMA rating decision that found that new and relevant evidence had not been submitted sufficient to reopen the claim of service connection for PTSD, reopened the claim of service connection for obstructive sleep apnea and denied the reopened claims of service connection for obstructive sleep apnea as well as denied the claims of service connection for an acquired psychiatric disorder other than PTSD to include an anxiety disorder and depression and a skin disorder.  

In December 2019, the RO received the Veteran's VA Form 10182, Decision Review Request: Board Appeal (AMA Notice of Disagreement) and at that time he elected the Hearting Review Lane.  

Given the Veteran's Hearting Review Lane election, the Board in adjudicating the appeal may only consider the evidence of record at the time of the 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.  See 38 C.F.R. §?20.302(a).

In June 2022, the Veteran testified at a personal hearing before a Veterans' Law Judge.  A transcript of that hearing has been associated with the claims file.  

Initially, the Board finds that it is bound by the RO's reopening the claim of service connection for obstructive sleep apnea and must address the claim on the merits.  See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). 

Next, the Board notes that evidence was associated with the claims file outside the allowed evidentiary window.  As the Board is deciding the application to readjudicate the claim of service connection for PTSD as well as the claims of service connection for a skin disorder and obstructive sleep apnea, it may not consider this evidence in its decision.  See 38 C.F.R. § 20.300.  However, the Veteran may file a Supplemental Claim and submit or identify this evidence.  See 38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.

As to the claim of service connection for an acquired psychiatric disorder including PTSD, an anxiety disorder, and depression because the Board is remanding this claim the RO may consider this evidence when this issue is again before it.  Id. 

The Application to Reopen 

The Veteran requests that the previously denied claim of service connection for PTSD be readjudicated and ultimately granted.

Under the Legacy Appeal system, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed.  38 U.S.C. § 5108.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

Under the AMA VA will readjudicate a claim if new and relevant evidenced is presented or secured.  38 C.F.R. § 3.156(d). "Relevant evidence" is evidence that tends to prove or disprove a matter in issue.  38 C.F.R. § 3.2501(a)(1). 

The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  

In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  

The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also held that for purposes of finality VA treatment records dated during the appeal period are consider in VA's possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period.  The Court also held that these VA treatment records will thereafter only trigger VA's duty under 38 C.F.R. § 3.156(b) if they are new and material evidence.

Thereafter, in Lang v. Wilkie, 971 F.3d 1348, (Fed. Cir. 2020), the United States Court of Appeals for the Federal Circuit removed the sufficient knowledge of the existence of the VA records requirement in Turner.

With the above criteria in mind, the record shows that a July 2017 rating decision earlier denied his application to reopen a claim of entitlement to service connection for PTSD.  The rating decision denied the claim because, in substance, the record did not confirm the Veteran's in-service stressor.  

The Veteran did not appeal the July 2017 rating decision.  The Board also finds that new and material evidence was not received by the RO in the first year following the issuance of the rating decision.  See 38 C.F.R. § 3.156(b).  In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period that are new and material evidence.  See Turner, supra; Lang, supra.  

Accordingly, the Board finds that the July 2017 rating decision is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.  

Since this final July 2017 rating decision, the Veteran in June 2022 testified at a personal hearing before a Veterans' Law Judge.  Moreover, the Board finds that the personal hearing testimony regarding his in-service PTSD stressor is new and relevant evidence as to the application to readjudicate the claim of service connection for PTSD.  The Board has reached this conclusion because the testimony provided additional details about the stressors that were not part of the record at the time of the earlier July 2017 rating decision.

Therefore, the Board finds that readjudication of the claim is warranted.

The Service Connection Claims

The Veteran claims that his skin disorder and obstructive sleep apnea are due to his military service.  

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d).  Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The Court in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) held, in part, that the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases like the current appeal in which veterans have served in the Persian Gulf since August 2, 1990.  

Therefore, the Board finds that it is also required to consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317.  See 38 C.F.R. § 3.117 (d)(1) and (2) (a "Persian Gulf veteran" is defined as "a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War.  The "Southwest Asia theater of operations" includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations). 

In this regard, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021.  38 C.F.R. § 3.317(a)(1).  

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities:  (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection.

An "undiagnosed illness" is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis.  In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez, 19 Vet. App. at 8-9.  Further, lay persons are competent to report objective signs of illness.  Id.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006).  

A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness.  A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities."  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii).

Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract.  Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia.  These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing.  Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis.  38 C.F.R. § 3.317(a)(2)(i)(B)(3).

The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).  

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. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Initially, as to a current disability, the August 2019 AMA rating decision made the following Favorable Findings of Fact which is binding on the Board; the record shows the Veteran being diagnosed with allergic dermatitis and obstructive sleep apnea.  See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c).

Next, as the regional office (RO) notified the Veteran in July 2016, most of his service treatment records have been lost.  In this regard, where, as here, "service medical records are presumed destroyed, . . . the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened."  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The cases, however, do not establish a heightened "benefit of the doubt," but rather only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed.  The case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant.  Russo v. Brown, 9 Vet. App. 46 (1996).  

Moreover, while the Veteran and/or his representative testified about the available service treatment records including a shaving profile a copy of this record is not found in the claims file.

The Board also finds that the Veteran is competent to report on the events he experienced while on active duty as well as manifestations of his disabilities.  See Davidson, supra.  

However, the Board finds it significant that the post-service record does not show complaints, diagnoses, or treatment for allergic dermatitis until 2018 (see VA treatment records dated in September 2018) and obstructive sleep apnea until 2012 (see VA treatment records dated in January 2012; VA sleep study dated in February 2013).  

Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while last on active duty in 2005, 18 years ago, because most probative evidence of record in the form of the post-service medical records shows that neither disability was documented until, at the earliest, 7 years post-service despite the appellant's claims to the contrary.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 

In this regard, the Board finds that the highly detailed post-service record, which documents the Veteran's complaints, diagnoses, or treatment for a number of other problems, weights against his current claims that he had problems with observable symptoms of skin and sleep disorders while on active duty 18 years ago.  See Owens, supra.  Based on this review of the detailed record, the Board finds that any recollection of these problem during service by the Veteran is inaccurate. 

Next, the Board will consider whether the Veteran is entitled to service connection for skin disorder and obstructive sleep apnea due to continuity of symptomatology under 38 C.F.R. § 3.303(b).  See 38 U.S.C. §§ 1110, 1131.

However, and as noted above, that the post-service record does not show that the Veteran had a continued problem with a skin disorder and obstructive sleep apnea in and since his service ended in 2005; 18 years ago.  

In fact, and as noted above, the post-service is negative for complaints, diagnoses, or treatment for allergic dermatitis until 2018 (see VA treatment records dated in September 2018) and obstructive sleep apnea until 2012 (see VA treatment records dated in January 2012; VA sleep study dated in February 2013); at least 7 years after the Veteran's 2005 separation from service. 

Given this record, the Board finds that the evidence in the form of the post-service medical evidence provides highly probative evidence, each, overall, against the claims which evidence the Board finds more probative than any claim by the Veteran that he had a skin disorder and obstructive sleep apnea since service ended in 2005.  See Owens, supra.  

In reaching the above conclusion, that Board has not overlooked the fact that the Veteran and his wife are competent to report on his observable adverse symptomatology such as problems with itchy, red, and dry skin as well as snoring and difficulty sleeping, in-service and since service.  See Charles, supra; Jandreau, supra.  

However, the Board does not find these continuity claims credible.  See Owens, supra.  The Board has reached this conclusion because when weighing the totality of the evidence it finds that the lay claims of continuity less probative than his medical records which are negative for complaints, diagnoses, or treatment for either of the claimed disorders for at least 7 years after service ended.  Id.  

Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with a skin disorder and obstructive sleep apnea in and since her service ended in 2005 despite the claimed shaving profile and the Veteran's claims to the contrary.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(b), 3.304.  The facts of this case provide highly probative evidence against the claims.

The Board also finds that the record does not show that the Veteran's post-service skin disorder and obstructive sleep apnea are due to his military service despite.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(d), 3.304; also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).

As to the claim of service connection for obstructive sleep apnea, the Board finds the August 2019 VA opinion that it is not due to the Veteran's military service both competent and credible as well as the most probative evidence of record for the following reasons: it considered the Veteran's competent claims regarding observable symptoms; it considered the post-service medical records; it is supported by medical reasoning which provides a rationale for the conclusions reached; and it is not contradicted by any other medical evidence of record.  See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches....  As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position); Colvin, supra.

As to the claim of service connection for a skin disorder, the Board notes that the Veteran was not provided a VA examination in connection with this claim.  However, the Board finds that the criteria to provide the Veteran with a VA examination to obtain an etiology opinion have not been met because the record does not document complaints, diagnoses, or treatment for the disorder for at least 13 years after service.  See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement).

The Board also finds that neither the Veteran or his wife is competent to provide the missing nexus opinions because they do not have the required medical expertise to provide answers to these complex medical questions (i.e., what caused the appellant's post-service skin disorder and obstructive sleep apnea).  See Davidson, supra.  

As to the claim of service connection for obstructive sleep apnea, the Board also finds the above VA examiner's negative nexus opinion more probative than the lay claims to the contrary because the examiner has greater medical training.  See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data).

Therefore, the Board finds that the most probative evidence of record shows that the Veteran's post-service skin disorder and obstructive sleep apnea are not due to his military service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(d), 3.304; also see Rabideau, supra.  

Lastly, the Board finds that the record does not show that that the Veteran's skin disorder and obstructive sleep apnea are an undiagnosed illness.  See 38 U.S.C. § 1117; 38 C.F.R. § 3.317.  

In this regard, the Board notes that the Veteran was not provided VA examinations in connection with these undiagnosed illnesses claim.  However, the Board finds that the criteria to provide the Veteran with VA examinations to obtain diagnoses have not been met because the record shows the Veteran being diagnosed with the known clinical diagnoses.  See McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006).

In addition, the Board finds that neither the Veteran nor his wife is competent to provide the missing diagnoses because they do not have the required medical expertise to provide answers to this complex medical question (i.e., what caused his current skin disorder and obstructive sleep apnea).  See Davidson, supra.  

Therefore, the Board finds that the record on appeal shows that the Veteran's skin disorder and obstructive sleep apnea are not an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology.  See 38 U.S.C. §§ 1110, 1131, 1117; Owens, supra, Colvin, supra.  

Lastly, in reaching the above conclusions the Board has not overlooked the medical literature filed by the Veteran in June 2022 regarding sleep apnea.  However, because generic text standing alone which does not address the facts in this particular case with any degree of medical certainty is not competent medical evidence and because the below remand addresses the claim of service connection for acquired psychiatric disorders including any residual problems sleeping, the Board finds that no further discussion of the medical text is needed at this time.  See Owens, supra; Mattern v. West, 12 Vet. App. 222, 228 (1999). 

Conclusion

Therefore, the Board finds that the claims of service connection for a skin disorder and obstructive sleep apnea are denied.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317.

In this regard, the key question in this case is not if the Veteran had a disease or injury while on active duty.  The key issue is whether any disease or injury the Veteran had during his service that ended 18 years ago was at least as likely as not (a 50 percent or greater chance) the cause of his current skin disorder and obstructive sleep apnea.  The fact that he may, or may not, have had problems while on active duty does not always provide the basis to find that the post-service skin disorder and obstructive sleep apnea are the result of that disease and/or injury from 18 years ago.  Sometimes, in some cases, the best evidence provides evidence against such claims.  In this case, the Board finds that there is now significant evidence in this record that provides highly probative evidence against the claims that clearly outweigh all evidence that supports the claims.  See Owens, supra.

It is vital for the appellant to understand that the Board has taken his concerns seriously, however, there is now overwhelming medical and factual evidence against the claims that the Board cannot ignore.  The post-service treatment records have been found by the Board to provide highly probative evidence against the claims and standing alone provides a valid basis to deny these claims.  There is no basis to assume that obtaining medical opinions in this case will provide a basis to grant the claims in light of this record.  With regard to any contention from the Veteran that he had continued problems for 18 years since service, the Board must find that any such statements are outweighed by the evidence of record and are not credible. 

In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt.  38 U.S.C. § 5107(b).  However, as the most probative evidence of record is against the claims (i.e., the evidence is not approximately in equipoise), the Board finds that the doctrine is not for application.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Lynch, supra,

REASONS FOR REMAND

Entitlement to service connection for an acquired psychiatric disorder to include PTSD, an anxiety disorder, and depression is remanded.

As to the claim of service connection for an acquired psychiatric disorder to include PTSD, an anxiety disorder, and depression, the Veteran reported that they were caused by the following stressor events/incident: 

i. serving on the U.S.S. Stump while on escort duty during the Persian Gulf War; 

ii. in October 1990 serving on the U.S.S. Stump when in conducted search and rescue operations after the U.S.S. Stark was attacked; 

iii. in November 1988 serving on the U.S.S. Enterprise when two aircraft collided on the flight deck and started a fire above where he slept; 

iv. serving on the U.S.S. Enterprise when a fire started in the female sleeping area next to where he slept; and 

v. serving on the U.S.S. Enterprise when an incinerator room blew up when he was the night shift supervisor and he had to pull his men out of that room.  

See statements from the Veteran dated in April 2017 and August 2018; personal hearing testimony dated in June 2022.

Additionally, service personnel records show that the Veteran served on the U.S.S. Enterprise for a number of years.  Moreover, the U.S.S. Enterprise Command History confirm the fact that on November 8, 1988, two aircraft collided in the landing area resulting in an explosion and a fire.

However, the service personnel records found in the claims file do not confirm that the Veteran served on the U.S.S. Enterprise on November 8, 1988.  Moreover, while the record shows that RO attempted to verify one of the Veteran's stressors (i.e., being on the U.S.S. Stump when it conducted search and rescue operations after the U.S.S. Stark was attacked) (see DPRIS reply dated in June 2017), it does not show that it undertook similar steps to verify any of the other stressors.  

The Board finds that the RO's adjudication of the claim of service connection for an acquired psychiatric disorder to include PTSD, an anxiety disorder, and depression in the August 2019 AMA rating decision without undertaking this stressor development was a pre-decisional duty to assist error as defined by 38 C.F.R. § 20.802(a).  See 38 U.S.C. § 5103A(f)(2)(A).  Therefore, the Board finds that a Remand to undertake it is required.  

Next, the Board notes that the August 2019 AMA rating decision made the Favorable Findings of Fact which is binding on the Board; the Veteran has diagnoses of PTSD, an anxiety disorder, and depression.  See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c).  

Moreover, the Board finds that the Veteran competently and credibly reported in writings to the RO and at his personal hearing of having observable symptoms of an acquired psychiatric disorder while on active duty following the above incidents.  See Davidson, supra.

Additionally, the Board finds it significant that while a claim of service connection for PTSD under 38 C.F.R. § 3.304 requires a confirmed stressor, like the November 1988 accident on the U.S.S. Enterprise, claims for all other acquired psychiatric disorders under 38 C.F.R. § 3.303 do not require a confirmed stressor.

Lastly, the Board finds that Jeffrey Garbelman, Ph.D.'s July 2020 PTSD examination is not adequate to adjudicate the current claim because it is based on an inaccurate factual premise; namely, the Veteran having a confirmed PTSD stressor.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative).  

Given the above, the Board finds that the RO's adjudicating the claim of service connection for an acquired psychiatric disorder to include PTSD, an anxiety disorder, and depression in the August 2019 AMA rating decision without first obtaining an etiology opinion was a pre-decisional duty to assist error as defined by 38 C.F.R. § 20.802(a).  See 38 U.S.C. § 5103A(f)(2)(A).  Therefore, the Board finds that a Remand to obtain an etiology opinion is required.  See McLendon, supra.

When obtaining the medical opinion and again adjudicating the claim, the regional office (RO) should be mindful of the fact that the Court in Joyner, supra, held that VA needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases in which the claimant, like the current Veteran, served in the Persian Gulf since August 2, 1990.

This issue is REMANDED for the following actions:

1. In order to correct a pre-decisional duty to assist error, contact the appropriate Federal Agency and attempt to confirm the Veteran's other PTSD stressors.

Specifically, the agency should be asked if they can verify any of the following PTSD stressors claimed by the Veteran: 

i.	serving on the U.S.S. Stump while on escort duty during the Persian Gulf War; 

ii.	serving on the U.S.S. Enterprise on November 8, 1998, when two aircraft collided in the landing area resulting in an explosion and a fire;

iii.	serving on the U.S.S. Enterprise when a fire started in the female sleeping area next to where he slept; and 

iv.	serving on the U.S.S. Enterprise when an incinerator room blew up.

Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile.  

If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA's actions to obtain the records should be prepared and associated with the claims file and the Veteran should be notified in writing that the records cannot be found.

2. In order to correct a pre-decisional duty to assist error, schedule the Veteran for a VA examination with a suitably qualified medical professional to address the claim of service connection for an acquired psychiatric disorder to include PTSD, an anxiety disorder, and depression.

The claims folder should be made available to and be reviewed by the examiner.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  

After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following:

a. Provide diagnoses.

If the Veteran does not have an acquired psychiatric disorder to include PTSD, an anxiety disorder, and depression. at the current examination, the examiner should: 

(i)	say so; and 

(ii)	opine as to when it resolved; 

b.  If PTSD is diagnosed and/or diagnosed since the Veteran filed the current claim, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it is due to a confirmed stressor.

c. As to all other acquired psychiatric disorders diagnosed at the examination and/or diagnosed since the Veteran filed the current claim, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its onset directly during the Veteran's service or is otherwise related to any event or injury during including his presumptive toxin exposure because of his service in Southwest Asia during the Persian Gulf War.

d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any psychosis manifested in the first post-service year.

e. If a nexus to his service or an already service-connected disability cannot be established for the disability claimed as an acquired psychiatric disorder to include PTSD, an anxiety disorder, and depression, please provide an opinion as to whether the disability pattern is consistent with any of the following: 

(i) an undiagnosed illness, 

(ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, 

(iii) a diagnosable chronic multisymptom illness with a partially explained etiology, or 

(iv) a disease with a clear and specific etiology and diagnosis. 

f. If, after reviewing the claims file, you determine that the Veteran's disability patterns are consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service to include his service in the Southwest Asia theater of operations.

In providing answers to the above questions the examiner should specifically consider the Veteran's service treatment records. 

In providing answers to the above questions the examiner should specifically consider the competent lay claims from the Veteran and others regarding observable adverse symptomatology.

In providing answers to the above questions the examiner must not rely solely on negative evidence.

In providing answers to the above questions the examiner should notes that while a claim of service connection for PTSD under 38 C.F.R. § 3.304 requires a confirm stressor like the November 1988 accident on the U.S.S. Enterprise the claims for all other acquired psychiatric disorders under 38 C.F.R. § 3.303 does not require a confirmed stressor.  

In providing answers to the above questions the examiner is also advised that 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.  

In providing answers to the above questions please articulate the reasoning underpinning your conclusions.  That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion.  

If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

 

 

John J. Crowley

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Werner, Neil 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.