BVA9505035 DOCKET NO. 93-09 702 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a psychiatric condition, including post-traumatic stress disorder. REPRESENTATION Appellant represented by: William R. McCracken, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa Schlecht, Associate Counsel INTRODUCTION The appellant had active service from December 1976 to September 1978. He also had inactive naval service from September 6, 1973, to December 3, 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 1991 and March 1992 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which together denied entitlement to service connection for a psychiatric disorder, including post-traumatic stress disorder (PTSD). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he has PTSD as a result of incidents of racial harassment by the Ku Klux Klan on board the appellant's assigned ship. The appellant contends that all of his symptoms and conditions since service, including anxiety and ulcer disease, are consistent with a diagnosis of PTSD. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against entitlement to service connection for a psychiatric disorder, including PTSD. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the claimant's appeal has been obtained by the RO. 2. The evidence establishes that an acquired psychiatric disability was not present in service, and a psychosis was first medically shown many years after service. 3. The medical evidence of record does not establish that the appellant has PTSD. 4. The veteran served in peacetime and did not engage in combat with the enemy. Claimed service stressors of a nature so as to result in delayed onset of PTSD, psychologically distressing events outside the range of usual human experience, have not been shown. CONCLUSIONS OF LAW 1. A chronic acquired psychiatric disability was not incurred in or aggravated by service, nor may a psychosis be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303(c), 3.307, 3.309 (1994). 2. PTSD was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.304(d) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's claim that he suffers from service-connected psychiatric disability, including PTSD, as a result of his experiences in naval service is plausible and is well-grounded within the meaning of 38 U.S.C.A. § 5107(a), which mandates a duty to assist the veteran in developing all relevant evidence. The evidence of record includes service medical records, numerous postservice inpatient and outpatient VA and private medical records, a Social Security Administration disability decision, the appellant's testimony during a hearing held in April 1991, and a VA examination conducted in January 1992. There is no indication that there are additional records which would be relevant. The Board is satisfied that all available, relevant evidence has been obtained and that there is no further duty to assist the veteran. In May 1979 the RO denied service connection for a psychiatric disorder on the basis that the appellant had a personality disorder, a constitutional or developmental disorder. The appellant was informed of the decision but did not appeal. Evidence received since that time includes diagnoses of acquired psychiatric disorders, and the Board finds that these records are new and material since they provide information which is not cumulative and is probative of the appellant's claim for service connection for a psychiatric disorder. Further, he now claims service connection for PTSD as a result of service, a claim not previously considered. Although not specifically stated in the statement of the case, it is apparent that the RO also found the evidence to be new and material and reopened the claim, but denied the claim on a de novo basis. There are no due process deficiencies resulting from the RO's failure to specifically state that the claim was reopened. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. Certain chronic diseases becoming manifest to a degree of 10 percent or more within one year from the date of separation from service shall be considered to have been incurred in or aggravated by service, notwithstanding that there is no record of such disease during the period of service. 38 U.S.C.A. §§ 1112, 1137. A psychosis is, by statute, defined as a chronic disease and is one of the conditions for which a presumption of service connection is available. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Evidence in support of a claim is evaluated in light of the places, types, and circumstances of service. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.306(b)(2). Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). See also Zarycki v. Brown, 6 Vet.App. 91, 98 (1993). Service connection for PTSD requires medical evidence establishing a clear diagnosis thereof, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1994). Service connection may be granted if the evidence shows that there is a nexus between the appellant's current condition and his military service, even though PTSD was not shown during service. 38 C.F.R. § 3.303(d); Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992). In this case, the evidence of record does not establish that the appellant has been treated for PTSD, either in service or post-service, nor does the evidence of record establish that he currently has a diagnosis of PTSD. The appellant served during peacetime, so the claimed stressors were not related to combat, nor does the appellant so contend. The evidence of record does not include credible supporting evidence to corroborate the appellant's testimony regarding occurrence of claimed in-service stressors, as required under 38 C.F.R. § 3.304(f). The requirements for a grant of service connection for PTSD under 38 C.F.R. § 3.304(f) have not been met. The medical evidence of record includes no evidence that the appellant was treated in service for any complaints or symptoms specific to a chronic acquired psychiatric disability, including psychosis or PTSD. On an examination in February 1974 apparently in conjunction with a period of active duty for training, he reported having or having had nervous trouble described as frustration and situational disturbance, and depression or excessive worry. However, these problems wre denied on subsequent examinations in March 1975 and December 1976. Psychiatric evaluations were normal on all these examinations. The service medical records show that the appellant was treated on several occasions for physical complaints, including sore throat, foot pain, and epigastric pain. The appellant was diagnosed as having an antral ulcer during service and therapy with medications was instituted. The appellant was also seen in service on several occasions for concerns regarding his weight. The appellant was seen by a social worker at his request in July 1978. At that time, the appellant complained of job dissatisfaction, stating that racial prejudice had caused him not to get a job he should have gotten, and that tension at work caused him to overeat. The examiner found that occupational maladjustment was present, but noted no significant findings on mental status examination. Significantly, the appellant made no mention of any racial incident or any threats against him. Given the clinical setting and the fact that the appellant discussed other sensitive personnel issues with the social worker, the fact that the appellant did not reveal or discuss occurrence of stressors or describe feelings of fear, helplessness, or feeling threatened must be considered in assessing the credibility of the appellant's description of such incidents many years after service. The medical evidence of record does not establish that the appellant currently has a diagnosis of PTSD. The examiner who conducted the January 1992 VA examination found that the appellant was having auditory and visual hallucination and delusions, and that it was therefore difficult to delineate nightmares or flashbacks from his psychosis, but the examiner did not find a history of hypervigilance or exaggerated startle response. The examiner specifically stated that "[t]he possibility of PTSD due to harassment has not been confirmed but has been considered." The examiner diagnosed the appellant as having schizo-affective schizophrenia and schizoid personality. A Social Security Administration decision of record, issued February 10, 1989, reflects that the appellant had paranoid schizophrenia with depression and anxiety or schizoaffective schizophrenia. A statement from David A. Burns, M.D., dated May 30, 1988, indicated that Dr. Burns, who had been treating the appellant for about six months, had determined that the appellant had a schizoaffective disorder and histrionic personality disorder. In a VA examination conducted in April 1979, the examiner found that the appellant had an unhappy work situation and had financial problems, but the examiner found no evidence of psychosis or thought disorder. Again, significantly, in this clinical setting, the appellant described many frustrations with his navy service, particularly his feeling that other were selected for jobs he should have been selected for, but he described no incidents of racial harassment or occurrence of other stressors. The examiner determined that the appellant had a passive-aggressive personality. During a hospital admission treatment for treatment of ulcers in September 1979, a little more than a year after the appellant's discharge from service, the appellant was seen by a psychiatrist, who diagnosed a characterologic disorder and referred the appellant for further therapy. Records of outpatient therapy from 1984 to 1986 show that the appellant was treated for anxiety and anxiety reaction. The medical evidence, including information contained in the Social Security Administration decision of record, establishes that the appellant was first diagnosed and treated for a psychosis many years after service. The record does not establish that a psychosis manifested to a 10 percent degree of disability within one year following service discharge, so the appellant's psychiatric disability may not be presumed service-connected. See 38 U.S.C.A. §§ 1101, 1112(a)(1); 38 C.F.R. § 3.309. Psychiatric diseases other than psychoses are not chronic conditions which may be presumed service connected if manifested to the required degree within one year after service. An anxiety disorder was first indicated in the VA outpatient records in the 1980's, subsequent to the appellant's discharge from service. Although he had some complaints of tension and work frustrations in service, he was found to be suffering from occupational maladjustment, an acute and transitory condition which alleviates with removal from the situational stress. This is not a chronic psychiatric disorder. On VA examination in 1979 he complained of nervousness but was found to have a personality disorder. A personality disorder was confirmed on subsequent hospitalization in 1979. A personality disorder is a developmental disorder and is not a disability for which compensation may be granted. 38 C.F.R. § 3.303(c). There is no evidence that the findings of occupational maladjustment in service and of a personality disorder in the first postservice year were erroneous, and the evidence of record first shows a psychoneurotic disorder several years after service and a psychosis later still. The only medical evidence of record which suggests that the appellant's psychiatric disability may be PTSD is a note dated November 1991, from Phillip Hunter, M.D. Dr. Hunter indicated that he had been following the appellant for more than a year for a schizoaffective disorder. Dr. Hunter further stated that, given the newspaper articles about Ku Klux Klan activity on Navy ships, he felt there might be a factual basis for the appellant's complaints that the Ku Klux Klan was after him. On this basis, Dr. Hunter states he would include PTSD in the appellant's diagnosis. Dr. Hunter provides the Axis I diagnosis as "schizoaffective disorder, rule out PTSD." Dr. Hunter's note does not establish that the appellant currently has a diagnosis of PTSD, does not contain a description of the signs or symptoms on which Dr. Hunter based the possible diagnosis of PTSD, and does not provide specific description or verification of stressors. The weight accorded the probative value of a medical opinion is less where the opinion is ambivalent as to the exact diagnosis or if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet.App. 140 (1993). Thus, Dr. Hunter's note does not establish that the appellant has PTSD, and, when considered in light of all the evidence of record, is not of sufficient weight to place the issue in equipoise. . At a hearing held in April 1991, the appellant testified that he was subjected to numerous incidents of racial harassment by members of the Ku Klux Klan on board ship, including "nasty notes" and threats that he would be stuffed in a laundry bag and dumped into the sea. The appellant was unable to recall specific dates on which any incidents occurred and was unable to recall the names of any crew member who threatened him. He stated that this harassment primarily started after he was promoted into a position previous held by a white crew member. The only evidence of record to corroborate the appellant's testimony as to occurrence of the events in service which the appellant states cause him to develop PTSD are three newspaper articles, which Dr. Hunter refers to in his November 1991 note. The newspaper articles, although undated, are stamped as having been published in September 1979. Those articles appear to describe a specific incident which occurred shortly before the articles were published. The appellant was discharged in September 1978, a year before the article was published and more than 11 months before the reported incident. The newspaper articles are of minimal probative weight in establishing occurrence of the claimed stressors. Considering the evidence as a whole, the mere possibility that incidents of racial harassment may have occurred on board the ship on which the appellant served is speculation and does not constitute credible supporting evidence that the claimed stressor actually occurred as required under 38 C.F.R. § 3.304(d), nor is this evidence sufficient to bring into equipoise the evidence proving occurrence of the incidents to which the appellant testified. Moreover, the accuracy and credibility of the veteran's testimony as to the incidents of harassment must be reviewed in light of the record as a whole. The evidence of record reflects that the appellant discussed his frustrations with military service on at least two occasions proximate to the alleged stressful occurrences. The record does not reflect that the appellant complained of stressor incidents or racial harassment during service prior to 1991. Further, the medical evidence of record does not contain any reference to symptoms specific to PTSD, such as flashbacks or nightmares, prior to 1991. In light of lack of documentation of incidents occurring in service during treatment proximate to service, and the fact that the appellant was testifying in 1991 regarding occurrences many years previously, it is not reasonable to accept as accurate the appellant's testimony as to stressors without corroboration. Even if the appellant's testimony were corroborated, however, there is no medical evidence establishing that the appellant experienced the incidents he described as psychologically distressing events, experienced with intense fear, terror, and helplessness, so as to produce delayed-onset PTSD. The appellant's own lay statements as to medical causation of his psychiatric disability are insufficient to establish medical causation. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). The medical evidence of record does not establish the onset of a chronic acquired psychiatric disability in service, manifestations of a psychosis within one year of service discharge, the occurrence during military service of a verified stressor recognized as one which may cause PTSD or a credible diagnosis of PTSD. The preponderance of the evidence is against an award of service connection for a psychiatric disability incurred in service , including PTSD. Therefore, the provisions of 38 U.S.C.A. § 5107 regarding reasonable doubt are not applicable in this case. ORDER Entitlement to service connection for a nervous condition, including PTSD, is denied. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.