Robinson v. McDonough

1

Abe Robinson, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee

No. 22-7482

United States Court of Appeals For Veterans Claims

January 17, 2024

Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

Stephani M. Bennett, Esq. VA General Counsel (027)

Before SCHOELEN, Senior Judge. ^[1]

MEMORANDUM DECISION

SCHOELEN, SENIOR JUDGE

Appellant Abe Robinson appeals, through counsel, a November 14, 2022 Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for post-traumatic stress disorder (PTSD) and for alcohol and cocaine use disorder, as well as entitlement to a temporary total evaluation for treatment for PTSD necessitating hospital treatment or observation in excess of 21 days. Record of Proceedings (R.) at 5-15. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will affirm the Board decision.

I. BACKGROUND

The appellant served honorably in the U.S. Navy from January 1971 to November 1972. R. at 4580. In December 1970, the appellant completed a report of medical history, apparently marking "yes" to affirm "depression or excessive worry" and "loss of memory or amnesia." R. at 4965. Reports of medical examination and medical history from December 1970, November 1972, and September 1975 did not note any psychiatric symptoms. R. at 4969-70, 4973-74, 4992-95. On September 1, 1972, a Navy personnel officer gave the appellant poor marks for professional performance, military behavior, and adaptability, and said that the appellant was "lackadaisical in carrying out the most routine and assigned tasks," required "constant" supervision, was lax and "indifferent," and was "a poor example." R. at 4361.

In November 1999, a VA physician examined the appellant and diagnosed him with mild major depression and severe cocaine dependence, in remission. R. at 5169. In January 2000, the regional office (RO) denied entitlement to non-service-connected pension. R. at 5155.

In October 2010, a VA physician diagnosed bipolar II disorder, PTSD, attention-deficit hyperactivity disorder, and cocaine and alcohol dependence. R. at 5052. In December 2010, a VA examiner diagnosed the appellant with bipolar disorder, not otherwise specified, and cocaine abuse. R. at 4952-53. The examiner noted that the appellant was homeless and hospitalized for inpatient psychiatric care. R. at 4946. In March 2011, the RO granted entitlement to non-service-connected pension and denied service connection for bipolar disorder and PTSD. R. at 4620-21.

In December 2016, the appellant requested a temporary total rating for PTSD. R. at 4559-62. In February 2017, the appellant requested compensation for PTSD with depression. R. at 4322-25. He told VA that he had a traumatic event in service when he "accidentally fell into the ocean trying to avoid jet blast" in November 1972 and "believed he was dead." R. at 3392, 4180.

In December 2017, a VA examiner diagnosed the appellant with PTSD, moderate bipolar disorder, severe alcohol use disorder (in remission), and moderate cocaine use disorder (in remission). R. at 4126. The examiner opined that the appellant's alcohol and cocaine use disorders likely worsen when his PTSD and bipolar symptoms increase, and the symptoms could not be fully differentiated. Id. The examiner noted that the appellant had been hospitalized in 2016 and in July 2017 for suicidal ideation. R. at 4130. The examiner opined that the appellant's PTSD was "likely related to the traumatic stressors he experienced in the military," because he began to experience psychiatric symptoms in service. R. at 4138. The examiner also opined that the appellant's bipolar disorder was a "progression from . . . service-connected major depressive disorder." Id.

Later that month, the RO found that no new and material evidence was submitted and continued to deny the claims for service connection for bipolar disorder and PTSD. R. at 4120. The RO also denied the claims for service connection for alcohol and cocaine use disorder and for a temporary total rating for PTSD treatment lasting over 21 days. R. at 4120-21. In March 2018, the appellant filed a Notice of Disagreement. R. at 4076-77. On October 18, 2018, the appellant requested compensation for major depressive disorder. R. at 5094.

In October 2020, the Board reopened the claims for service connection for bipolar disorder and PTSD, denied those claims, and denied the claims for service connection for alcohol and cocaine use disorder and for a temporary total evaluation. R. at 2259. The appellant appealed and, in March 2022, this Court affirmed the Board's denial of service connection for bipolar disorder. R. at 2168. The Court also vacated the Board's denial of service connection for PTSD and remanded that claim for the Board to address whether 38 C.F.R. § 3.304(f)(3) applied to connect the appellant's PTSD to a fear of hostile military or terrorist activity. R. at 2169-70. The Court vacated the Board's denial of service connection for alcohol and cocaine use disorder and for a temporary total evaluation and remanded those claims to the Board, because they were inextricably intertwined with the PTSD claim. R. at 2170-71.

In November 2022, the Board denied the claims currently on appeal. R. at 5. First, regarding the PTSD claim, the Board conceded that the appellant had a current PTSD diagnosis. R. at 8. The Board then found that the claimed in-service stressor for PTSD was not corroborated by credible supporting evidence and was not related to a fear of hostile military or terrorist activity. R. at 5. The Board stated that the Joint Services Records Research Center determined that the U.S.S. Ranger lacked any documentation of a man overboard on November 6, 1972, or a report of a soldier picked up in the area. R. at 8-9. The Board also found that the appellant's service treatment records and separation examination did not note any psychiatric conditions. R. at 9. Because the military records and service treatment records lacked corroborating evidence of the in-service event, the Board determined that the lay statements were insufficient alone to demonstrate that the event occurred. Id.

The Board acknowledged the March 2022 memorandum decision and its order to discuss 38 C.F.R. § 3.304(f)(3). R. at 9-10. The Board found that the appellant did not contend that he was in combat and "a fear related to hostile military or territory activity is not plausible." R. at 10. The Board stated that even a fear of other service members did not fall under the regulatory definition. Id. Additionally, the Board concluded that the claimed stressor was not "an event involving actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran" because it was not a combat situation: "The Veteran merely accidentally may have fallen in[to] the ocean." R. at 11. Further, the Board stated that it was more likely than not that the event would have been captured in a report because it did not occur during combat or another "extraordinary event" that would have precluded documentation. Id. The Board acknowledged that a VA examiner noted that the claimed stressor constituted "fear of hostile military or terrorist activity," but the Board determined that the appellant had said that the claimed stressor did not arise during combat and that the examiner was unable to attribute the psychiatric symptoms to a specific disability. Id. The Board found that the appellant bore the burden of presenting his claim and that the evidence did not support that the claimed stressor occurred. R. at 12.

The Board also decided that the alcohol abuse disorders may not be directly service connected and the appellant was not service connected for any psychiatric disability that would allow secondary service connection. R. at 5, 13-14. Finally, the Board determined that the appellant was not hospitalized for a service-connected disability, nor was he service connected for any disability, and the Board denied the claim for a temporary total evaluation. R. at 5, 15.

II. ANALYSIS

A. The Board did not clearly err in denying service connection for PTSD.

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. Simmons v. Wilkie, 964 F.3d 1381, 1383 (Fed. Cir. 2020); 38 C.F.R. § 3.303 (2023). For PTSD in particular, there must be "(1) evidence of a current diagnosis of PTSD consistent with the [fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5)]; (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) competent evidence of a causal nexus between the current condition and the in-service stressor." Mattox v. McDonough, 34 Vet.App. 61, 71 (2021), aff'd, 56 F.4th 1369 (Fed. Cir. 2023); see 38 C.F.R. §§ 4.125(a), 3.304(f) (2023).

VA categorizes stressors and applies different evidentiary standards to each. One category of stressors is relevant here, because the Court explicitly addressed that category in its March 2022 memorandum decision: stressors that relate to fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304(f)(3); R. at 2169-70. A veteran may establish with lay testimony that this type of stressor occurred in service, so long as the claimed stressor is consistent with the veteran's service. See 38 C.F.R. § 3.304(f)(3). VA defines "fear of hostile military or terrorist activity" to mean that

a veteran experienced, witnessed, or was confronted with an

...