POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The Veteran, an Army Veteran who served from July 1969 to October 1972, appeals the denial of service connection for an acquired psychiatric disorder, claimed as PTSD, and for obstructive sleep apnea (OSA) claimed as secondary to the psychiatric disorder. The Veteran testified that a psychiatric condition began in service due to witnessing a traumatic airborne training accident in Guernsey, Wyoming, where a fellow Green Beret was injured. He claimed this incident caused psychological disturbance, impulsivity, frustration, and anxiety. However, the Board found the Veteran's lay statements regarding the accident to be not credible due to numerous inconsistencies with his service records and testimony. Specifically, his service personnel records contradicted his claims of being a Green Beret, undergoing special forces training, serving in Vietnam, or being stationed in Wyoming at the time of the alleged accident. Furthermore, his service records indicated permanent disqualification from airborne training prior to the alleged accident date. An October 1972 mental status evaluation prior to discharge noted no significant mental illness. While a private psychologist diagnosed Other Specified Stressor Disorder and Depressive Disorder in 2020, the Veteran did not meet the criteria for PTSD. The Board found the private psychologist's opinion more probative than an LCSW's opinion, which was not supported by a diagnostic evaluation. Due to the negative credibility finding regarding the stressor, the Board found the medical opinions relying on these reports lacked probative value. Service connection for PTSD was denied for failing to meet the threshold element of a current diagnosis. The OSA claim was denied as secondary because the underlying psychiatric condition was not service-connected. The Board noted that while service treatment records were unavailable, the lack of corroboration for the alleged accident, coupled with the negative credibility findings, was determinative.

Rationale

Veteran's lay statements regarding alleged airborne training accident were not credible.; Service personnel records contradicted Veteran's testimony regarding service details and accident.; Private psychological evaluation did not meet PTSD diagnostic criteria.; Medical opinions relied on Veteran's discredited reports.

Full Decision Text

Citation Nr: 23001273
Decision Date: 01/09/23	Archive Date: 01/09/23

DOCKET NO. 17-05 013A
DATE: January 9, 2023

ORDER

Service connection for acquired psychiatric disorder (claimed as PTSD) is denied. 

Service connection for obstructive sleep apnea (OSA) (claimed as secondary to an acquired psychiatric disorder) is denied. 

FINDINGS OF FACT

1. The evidence is not in approximate balance but is persuasively weighted against finding that the Veteran has been diagnosed with PTSD in compliance with the criteria set forth under the DSM-5. 

2. The Veteran's lay statements regarding witnessing an airborne training accident that caused or aggravated an acquired psychiatric disorder are not credible. 

3. OSA is claimed as proximately due to or aggravated by an acquired psychiatric disorder that is not a service-connected disability. 

CONCLUSIONS OF LAW

1. The criteria for service connection for an acquired psychiatric disorder (claimed as PTSD) have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.125 (a), 4.130. 

2. The criteria for secondary service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the Army from July 1969 to January 1970 and in the Army Reserve National Guard from January 1970 to October 1972. 

These matters were appealed to the Board of Veterans' Appeals (Board) from a May 2014 rating decision. 

The Veteran attended a hearing before a Veterans Law Judge (VLJ) that is no longer employed at the Board in April 2020. The Veteran was notified of this and was given the option to attend an additional hearing but communicated his desire to waive this right in a November 2022 memorandum. 

1. Service connection for an acquired psychiatric disorder

2. Service connection for OSA (claimed as secondary to an acquired psychiatric disorder)

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. 

In Lynch v. McDonough, 21 F.4th 776, 781-82 (2021), the Federal Circuit held that the benefit of the doubt will be resolved in the Veteran's favor when the evidence is in "approximate balance" or "nearly equal," and does not require exact equipoise. 

At his April 2020 hearing, Mr. [REDACTED] testified that a claimed psychiatric disorder, to specifically include PTSD, began in service. The Veteran testified that he served as a Green Beret and underwent special forces training in late 1968 or early 1969. The Veteran explained that his psychiatric condition was caused during airborne training in Guernsey, Wyoming where a Cpl. R.O. jumped out of a plane and in the process, struck the Veteran in the head. The Veteran stated that he was knocked unconscious and required eight stitches from his mouth to eye on the right side. He also stated that he suffered psychological disturbance by directly
" or "nearly equal," and does not require exact equipoise. 

At his April 2020 hearing, Mr. [REDACTED] testified that a claimed psychiatric disorder, to specifically include PTSD, began in service. The Veteran testified that he served as a Green Beret and underwent special forces training in late 1968 or early 1969. The Veteran explained that his psychiatric condition was caused during airborne training in Guernsey, Wyoming where a Cpl. R.O. jumped out of a plane and in the process, struck the Veteran in the head. The Veteran stated that he was knocked unconscious and required eight stitches from his mouth to eye on the right side. He also stated that he suffered psychological disturbance by directly witnessing this fellow servicemember become paralyzed after his parachute malfunctioned. After this incident, The Veteran noted that he began suffering from symptoms including impulsivity, frustration, and anxiety. These symptoms then continued and worsened over time.

Initially, service connection for PTSD requires the presence of three particular elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. The diagnosis of PTSD must comply with the criteria set forth in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 5th edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. §§ 4.125 (a), 4.130. 

Treatment records from Southwest Quickcare, LLC in 2005 note a past history and diagnosis of PTSD but no psychological evaluation was conducted to confirm this and these notations appear to be based on the Veteran's self-report of a past diagnosis. Also of record is a June 2013 letter from a licensed clinical social worker (LCSW) who treated the Veteran in January 2013. The clinician stated that, in their opinion, the Veteran meets the full criteria for PTSD. Again, this assessment was not bolstered by a diagnostic psychological evaluation confirming this diagnosis nor does this clinician have the specialized training to diagnosis psychiatric disorders. A September 2020 private psychological evaluation completed by a licensed clinical psychologist indicates that the Veteran scored a 27 on the PCL-5 measure, below the cutoff for a diagnosis of PTSD. The Veteran was instead diagnosed with an other specified stressor disorder (OSSD) and a depressive disorder. 

In this case, the preponderance of the competent medical evidence is against a finding that he has met the DSM-5 criteria for a PTSD diagnosis at any time during the pendency of this appeal which could be attributed to active service or any incident of service, including reported in-service stressors. The September 2020 private psychological examiner specifically found that the Veteran's symptoms did not meet the criteria for a diagnosis of PTSD. The Board finds this evidence more probative than the unsupported opinion by the LCSW or general notations regarding a past diagnosis for PTSD. Consequently, the Board finds that the Veteran's claim for service connection for PTSD does not warrant further consideration as the threshold element of a current medical diagnosis for PTSD has not been met. See 38 C.F.R. §§ 4.125 (a), 4.130.

Left for consideration is whether the other diagnosed psychiatric disorders indicated above were incurred in or are causally related to the alleged airborne training accident during the Veteran's service. 

Firstly, there is no evidence contained in the Veteran's service treatment records (STRs) or service personnel records (SPRs) that can corroborate that the alleged airborne training accident occurred. The crux then of the Veteran's service connection claim is predicated on the credibility of lay statements and reports about the alleged airborne training accident that supposedly caused or aggravated a psychiatric disorder.

The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In weighing credibility, VA 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 demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence).

The Veteran's SPRs indicate that he was enlisted into service into the Army in May 1969. He served on a period of active duty for training (ACDUTRA) from July 1969
ausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence).

The Veteran's SPRs indicate that he was enlisted into service into the Army in May 1969. He served on a period of active duty for training (ACDUTRA) from July 1969 to January 1970. He then was enlisted in the Army Reserve National Guard (ARNG) for the remainder of his service until being discharged in October 1972. His SPRs also contain the notation that he was permanently disqualified from participating in airborne training in January 1970. 

Initially, the Veteran's SPRs contradict several key elements of the Veteran's hearing testimony and lay statements about the alleged airborne training accident that undermine their credibility. His assigned duties and record of assignments contradict his statements that he was a Green Beret and that he went through special forces training. A review of his assigned duty stations also indicate that he was not stationed in Guernsey, Wyoming, where the airborne training accident is alleged to have occurred, until June 1972, years after he stated the accident happened.

In addition, in a June 2013 statement in support of his PTSD claim the Veteran indicated that the airborne training accident occurred in approximately June 1970, five months after his SPRs indicate that he was permanently disqualified from airborne training in January 1970. The Veteran also indicated that the injured servicemember was a Cpl. M-A., which is inconsistent with his hearing testimony. Further, the Veteran indicated in his April 2005 application for benefits that he served in Vietnam and was awarded the Combat Infantry Badge, claims that are debunked by the SPRs which do not show that he was ever assigned to duty outside of the United States. 

Turning to the STRs of record, the Board acknowledges that a complete accounting of the Veteran's STRs from his service in the Army and ARNG could not be located after multiple attempts and requests. See October 6, 2016 MAP-D Development Letter. Pertinent here though is an October 1972 mental status evaluation that was performed prior to the Veteran's discharge from service. The reviewing clinician indicated that the Veteran's had "no significant mental illness" or other psychiatric symptoms. They recommended an administrative separation from the ARNG due to the Veteran's conflicts with his superior officers. It stands to reason that if the Veteran had incurred a psychiatric disorder during service due to directly witnessing a traumatic event that there would be a note of this report to the clinician who performed the mental status examination, particularly if such led to his discharge. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder); see also Federal Rule of Evidence 803(4): statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care. 

The Board acknowledges an April 2008 buddy/lay statement from a fellow veteran that claims to have witnessed the airborne training accident during service and which tends to corroborate the Veteran's recounting of events. Again, the Board is charged with the duty to assess the credibility and weight given to evidence. Wensch, 15 Vet. App. at 367. The myriad inconsistences in the Veteran's statements when viewed in context with his SPRs and the objective medical evidence outweigh the probative value of this lay statement with respect to this credibility determination.

Based on this collective body of evidence, the Board finds that the Veteran's lay statements as to experiencing a traumatic airborne training accident during his service are not credible based on the record, as a whole, including inconsistent statements and accounts of the nature of his service, who was injured, and when and where the accident occurred. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony).

With this negative credibility determination in mind, there are two medical opinions of record, a June 2013 statement from the Veteran's treating LCSW
 Board finds that the Veteran's lay statements as to experiencing a traumatic airborne training accident during his service are not credible based on the record, as a whole, including inconsistent statements and accounts of the nature of his service, who was injured, and when and where the accident occurred. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony).

With this negative credibility determination in mind, there are two medical opinions of record, a June 2013 statement from the Veteran's treating LCSW and a September 2020 opinion from the private psychologist, that aver that it is at least as likely as not that the Veteran has acquired psychiatric disorders that are causally related to directly experiencing the claimed airborne training accident during service and being told to keep quiet about the event by senior officers. The Board emphasizes that both of these medical opinions are predicated on the Veteran's subjective reports of experiencing this event during service. Moreover, neither of these clinicians commented on the aforementioned inconsistencies with the Veteran's statements with respect to the nature of his service or details about the airborne training accident. It is also relevant the Veteran has stated that his memory is "mixed up" and that he is unsure of particular facts following several severe medical incidents including blood clots, strokes, and heart attacks. See August 2005 correspondence. Herein, the Board has determined that the Veteran's statements regarding the occurrence of this event to be not credible. Consequently, these medical opinions cannot be afforded probative weight because their conclusions are reliant on the credibility of the Veteran's reports of the airborne training accident during service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that the probative value of a medical opinion derives from the factually accurate, fully articulated, sound reasoning for the conclusion).

Notably, the Veteran has not been afforded a VA examination in connection with this service connection claim.  However, because his lay statements regarding the incurrence of the claimed in-service event that is the fulcrum of his claim have been found to be not credible, the duty to provide an examination has not been triggered. Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required).

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In sum, the Board finds that the Veteran is not credible with regards to an airborne training accident during service. There is no reasonable doubt to be resolved, and the claim for service connection for an acquired psychiatric disorder is denied. 38 C.F.R. § 3.303.

Finally, the Veteran's claim for secondary service connection for OSA is predicated on the underlying disability of an acquired psychiatric disorder being service-connected. Because service connection for this disability has been denied, there is no basis to award secondary service connection for OSA as proximately due to or aggravated by a service-connected disability. 38 C.F.R. § 3.310.

 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Kyle McKone

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.