Citation Nr: 1139244 Decision Date: 10/21/11 Archive Date: 10/25/11 DOCKET NO. 03-14 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for pre-syncopal episodes (with seizures, headaches, and blackouts). 3. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran service connection for PTSD, presyncopal episodes, and degenerative arthritis of the cervical spine. The Veteran subsequently initiated and perfected an appeal of this rating determination. In December 2005, the Veteran testified before the undersigned Veterans Law Judge, seated at the RO. This appeal was initially presented to the Board in March 2006, and again in September 2009; on each occasion, it was remanded for additional development. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's current disabilities of the back first manifested many years after service and are not shown to be causally related to active military service, and did not manifest within a year thereafter. 2. The Veteran's claimed pre-syncopal episodes, with seizures, blackouts, and headaches, are not shown to be causally related to active military service, and did not manifest within a year thereafter. 3. The Veteran did not engage in combat during active military service. 4. The reported stressor of an alleged sexual assault has not been corroborated. 5. The Veteran's current psychiatric disabilities first manifested many years after service and are not shown to be causally related to active military service. CONCLUSIONS OF LAW 1. A back disability was not incurred in or aggravated by active service, and arthritis did not manifest to a compensable degree within a year thereafter. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2011). 2. Pre-syncopal episodes, claimed as seizures, blackouts, and headaches, were not incurred in active military service, and did not manifest to a compensable degree within a year thereafter. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2011). 3. A psychiatric disability, to include posttraumatic stress disorder, was not incurred in active service and did not manifest as the result of an incident therein; a psychosis did not manifest to a compensable degree within a year after service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2011). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In August 2001 and May 2006 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Additionally, the May 2006 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. Finally, as the Veteran has claimed service connection for PTSD allegedly resulting from a sexual trauma, he was also provided notice within the May 2006 letter of alternate forms of evidence necessary to substantiate such a claim. The Board notes that, in the present case, initial notice was issued prior to the January 2002 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The timing deficiency of subsequent notices was cured by readjudication of the claim in later supplemental statements of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. Pertinent medical records have also been obtained from the Social Security Administration. See Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). A June 2006 response from the William Beaumont Army Medical Center indicated no inpatient or outpatient treatment records for the Veteran were available. Within a March 2009 supplemental statement of the case, the Veteran was informed of VA's inability to obtain this evidence. He has also been afforded VA medical examination on several occasions, most recently in March 2010 for his claims for service connection for a back disability and a psychiatric disorder. The VA records otherwise contain opinions as to the etiology of the presyncopal episodes. The Board notes that the VA medical evidence as a whole contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and is adequate for purposes of this appeal. In December 2005, the Veteran was afforded the opportunity to testify before a Veterans Law Judge. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. The Veteran submitted new evidence directly to the Board in March 2011, without consideration of such evidence by the agency of original jurisdiction (AOJ) and subsequent to the most recent supplemental statement of the case, dated in December 2010. In a May 2011 written statement, however, he waived AOJ review of this evidence; thus, his appeal need not be remanded for RO consideration of this evidence. See 38 C.F.R. § 20.1304. Finally, the Board notes that the Veteran is represented by a veterans service organization (VSO) and that organization is presumed to have knowledge of what is necessary to substantiate a claim for service connection. Neither the Veteran nor his representative have pled prejudicial error with respect to the content or timing of VCAA notices. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki, 129 U.S. at 1696 (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). Thus, adjudication of his claims at this time is warranted. II. Service connection The Veteran seeks service connection for several disabilities. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). Service connection may also be awarded for certain disabilities, such as arthritis, psychosis, or organic disorders of the nervous system, which manifest to a compensable degree within a year of service separation. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Effective August 28, 2006, 38 C.F.R. § 3.384 was modified to further clarify the term "psychoses" for the purposes of 38 C.F.R. § 3.309(a). See 71 Fed. Reg. 42, 785 (July 28, 2006). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. a. Spinal disability The Veteran was not noted to have any disability of the spine at the time he was examined for military service in November 1974. In February 1976, the Veteran was seen for residuals of a motorcycle accident. He complained of pain on the right side, over the thorax and rib cage. He denied any headaches or neck pain. Chest X-rays revealed no fractures, and he was sent home. In July 1976, the Veteran was seen for upper back pain of a day's duration. Physical examination was negative for swelling of the scapular area bilaterally, and a muscle strain was diagnosed. He was given pain medication and told to use heat on the affected area. The Veteran was afforded neurological evaluation in January 1978 pursuant to complaints of syncopal episodes. Examination of the head and neck were within normal limits. On service separation examination in July 1978, no abnormalities of the spine or neck were noted, and on a concurrent report of medical history, the Veteran denied any history of recurrent back pain. In November 1981, the Veteran filed a service connection claim for hearing loss. He did not, however, claim or otherwise report an orthopedic disability at that time. A January 1982 VA physical examination was negative for any complaints or diagnoses of a spinal disability. Subsequent to service, the medical record does not reflect diagnosis of or treatment for a spine or neck disability for many years. The Veteran first reported upper back pain in June 1996, when he sought treatment from a private physician, R.S.S., M.D., for upper back pain of three days' duration. At that time, he reported a history of a low back injury during military service, but did not report a neck injury in service. In August 2000, he sought medical treatment for pain of the thoracic spine. An August 2000 magnetic resonance imaging (MRI) confirmed disc herniation at T8-9 and T9-10. X-rays of the thoracic spine indicated mild right lower thoracic scoliosis and mild degenerative changes in the mid to lower thoracic spine. No additional acute bony abnormalities were detected. In a September 2000 clinical notation, Dr. S. suggested the Veteran's disc herniation and elevation of the left rib cage were the result of the Veteran's motor vehicle accident during military service. The examiner based this opinion on review of the Veteran's service treatment records and photographs submitted by the Veteran. A VA medical examination in November 2000 confirmed disc herniation of the thoracic spine. In April 2001, he was afforded a thoracic discectomy to address his herniated nucleus pulposus symptoms. Additional private treatment records from Dr. S. noted the Veteran's complaints of low back pain with radiculopathy into the lower extremities. A May 2004 MRI of the lumbosacral spine was without significant abnormalities, as was an October 2005 MRI of the cervical spine, which indicated only "mild findings at C3-4, C4-5 and C5-6" but "nothing of major concern." Findings included a minor disc bulge at C3-4, a tiny disc protrusion without stenosis at C4-5, and minimal posterior spondylosis at C5-6 and C6-7. In a September 2006 clinical notation, Dr. S. stated that the arthritis in the Veteran's cervical spine displayed a "generalized picture without any acute injury or specific injury that can be explained by the MRI findings." At his December 2005 personal hearing before a Veterans Law Judge, the Veteran stated that he was sexually assaulted during military service. During his assault, he was struck in the back of the head and neck by a heavy object, knocking him unconscious. He has experienced back and neck pain since that time. He also stated he injured his back while working on an armored personnel carrier; however, he denied injuring his back as a result of his motor vehicle accident during military service. Another VA orthopedic examination was afforded the Veteran in March 2010, at which time he reported onset of back pain during military service while working on an armored personnel carrier. He stated, however, that he denied any back issues on his service separation examination because he was thinking of reenlisting and did not want any medical disabilities on his record. By his account, he has experienced pain of the back and neck since service. A diskectomy of the thoracic spine was performed at a VA medical center in approximately 2005. Current symptoms included mid-scapular pain radiating into his left ribs. On physical examination, he exhibited kyphosis and scoliosis, with some flattening of the normal lumbar curve. Some limitation of motion and pain on motion was also noted. The final impression was of mild degenerative joint disease of the cervical spine, confirmed on X-ray; degenerative disc disease of the thoracic spine, confirmed on X-ray; and degenerative joint disease of the lumbosacral spine, also confirmed on X-ray. Regarding the etiology of these disabilities, the examiner, a VA physician, stated it would require resort to speculation to offer an opinion whether the Veteran's current spinal disabilities were the result of, or otherwise related to, in-service diseases or injuries. The examiner further noted the Veteran's service treatment records indicated only one request for treatment by the Veteran for a back disability, when he was seen in July 1976 for a muscle strain. Thereafter, the Veteran did not report or seek treatment for a back disability. Therefore, the examiner concluded "there is no objective evidence" that any in-service injury was more than acute and transitory in nature, and resulted in a chronic disability. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of service connection for a back disability. While the Veteran appears to have sustained a muscle strain of the back during military service, this injury was described as acute and transitory by a VA physician who both examined the Veteran and reviewed his complete claims file in 2010. The physician noted that the Veteran sought medical care for back pain on only one occasion during service, and denied any ongoing disability on his service separation examination. The Veteran has alleged that he was considering reenlisting at the time of his July 1978 service separation examination, and did not mention his back pain at that time. Even assuming that explanation is true, it does not explain the fact he did not report a back injury on VA examination in January 1982, when he sought compensation for the first time for hearing loss. Thereafter, he did not report or seek medical care for a back problem for many years, until approximately 1996, nearly 20 years after service separation. This lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Based on this evidence, the Board finds the preponderance of the evidence to be against the award of service connection for a back disability. In so deciding, the Board is cognizant of the September 2000 clinical notation in which Dr. S. suggested the Veteran's disc herniation and elevation of the left rib cage were the result of the Veteran's motor vehicle accident during military service. "It is the responsibility of the BVA . . . to assess the credibility and weight to be given to evidence." Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). With regard to the weight to assign to these medical opinions, the United States Court of Appeals for Veterans Claims (Court) has held that "[t]he 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 that 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 [BVA as] adjudicators . . ." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Regarding Dr. S.'s September 2000 statement, the Board notes that while Dr. S. stated he reviewed some of the Veteran's service treatment records, he did not explain why the Veteran did not show any symptomatology of a back disability at service separation, or for many years after service. Dr. S. also did not explain how, if the Veteran sustained a chronic back injury due to a motor vehicle accident during service, contemporaneous examination findings were negative for any such injury. According to the Veteran's own testimony at his December 2005 personnel hearing, he did not injure his back when he had an accident on his motorcycle; rather, he injured his back while working on an armored personnel carrier. Hearing transcript, page 3. Finally, the Board notes that in subsequent clinical notes, Dr. S. minimized the Veteran's current back disabilities and stated that the arthritis in the Veteran's cervical spine displayed a "generalized picture without any acute injury or specific injury that can be explained by the MRI findings." Based on these factors, the Board finds the September 2000 opinion statement to be of very little probative value, including as compared to other findings of record. The Veteran has himself alleged that he has a current disability of the back which was incurred during active military service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is true that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation, such as back pain. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, his orthopedic disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. Insomuch as the Veteran is qualified to testify regarding such observable symptomatology as back pain, the Board does not find his assertions regarding the continuity of his back pain since service to be credible. As already noted above, the Veteran did not report any symptomatology of the spine or neck at service separation, or for many years thereafter. Although he provided a reason as to why he would not have so reported near the time of service separation, the service treatment records are otherwise lacking objective findings of a chronic back disability. This diminishes the Veteran's credibility of the presence of a chronic back disability during service. Moreover, the absence of a claim for back disability at the time of his initial application for VA compensation benefits in November 1981 also belies the proposition of the presence of a back disability related to service. Rather, given that the Veteran was then filing for disability benefits and he was given the opportunity to list any that he felt were service-related, it is reasonable to expect him to list any relevant disorders. However, he only listed a disability that did not involve the spine. As such, this diminishes his credibility. Additionally, a 1982 VA general medical examination was negative for any complaints or symptoms of a spinal disability. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where claimant failed to account for lengthy time period between service and initial symptoms of disability). Again, the absence of a report pertinent to the back goes against the current claim of the presence of a back disability since service. For these reasons, the Board does not find the Veteran's statements as to the continuity of his back pain to be credible. Also challenging credibility as to the onset of the spine disorder is the June 1996 initial post-service evidence when the Veteran sought treatment for posterior neck pain. At the time of seeking medical care, it was reported that the pain was merely of 3 days' duration, as opposed to a longer history. This evidence is of high probative value in that it is recognized that the information provided while seeking medical care is more trustworthy as the subsequent treatment is based on an accurate report. Further, while past medical history included a report of low back injury about 20 years before, the medical examiner thereafter made no subsequent findings of a low back disability as related to service or prior injury. As such, this evidence, showing the absence of relevant findings, is of no probative value to support the claim. Medical history provided by a veteran and recorded by an examiner without additional enhancement or analysis is not competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Board notes that the March 2010 VA examiner indicated that it would only be with resort to mere speculation to opine whether or not the Veteran's current back conditions are causally related to service. The Board, however, finds the March 2010 examination report is sufficient and adequate for adjudicative purposes as it fully addressed all medical evidence. In this regard, the Court has addressed those situations where an examiner states that he or she cannot offer an opinion without resorting to mere speculation, explaining as follows: Even when a VA medical examiner has obtained and considered all relevant and available information, there will nevertheless be instances in which the examiner is still unable to furnish the requested opinion. There are limits to even the most current medical knowledge. In certain cases, no medical expert can assess the likelihood that a condition was due to an in-service event or disease, because information that could only have been collected in service, or soon thereafter, is missing, or the time for obtaining other information has passed. Similarly, the valid application of current medical knowledge could yield multiple possible etiologies with none more likely than not the cause of a veteran's disability, such that a physician could only speculate as to the cause of a claimant's disability or condition. Therefore, it would be inappropriate for VA to demand a conclusive opinion from a physician whose evaluation of the "procurable and assembled" information prevents the rendering of such an opinion. Of course, VA may exercise its discretion to seek a second opinion. See Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (VA has discretion to decide how much development is necessary). When an examiner has done all that reasonably should be done to become informed about a case, however, and the inability to render a requested opinion is adequately explained by the examiner or otherwise apparent in the Board's review of the evidence, there is nothing further to be obtained from that particular examiner. Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010). In the March 2010 report, the examiner noted that the Veteran's claims file was reviewed; he conducted a physical examination; and he made pertinent findings regarding any spinal abnormality. As noted, he also explained that he could not offer an opinion without resorting to speculation as to whether the Veteran's current back problems were due to service. In so doing, he provided a full discussion of the evidence of record, and, significantly, there was no reference to any limitations in the evidentiary record. The examiner has done all that reasonably should be done to become informed about the case. This is one of the types of circumstances that the Court recognized in Jones as a valid basis for why an opinion could not be rendered without resorting to mere speculation. The Board therefore finds that the rationale provided in the March 2010 examination report is adequate and the examination is adequate. In discussing the evidence and formulating conclusions, the VA examiner in March 2010 nevertheless provided statements going to the heart of the case. For example, in noting the objective findings, or lack thereof, in the service treatment records, the examiner then concluded that no competent evidence indicated the isolated injuries during service were "more than acute and transitory." Therefore, the examiner is stating that a chronic disability of the spine was not shown in service. The examiner went on to rule out a relationship between the in-service injuries and post-service disabilities. As such, this medical report is also consistent with the above findings relative to credibility and the absence of a showing of continuity of symptomatology. In conclusion, the preponderance of the evidence is against the award of service connection for a back disability, as a current disability of the back or neck was not incurred during active military service or manifested to a compensable degree within a year thereafter. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). b. Pre-syncopal episodes At the time he was examined for military service in November 1974, the Veteran was negative for any blackout episodes or other neurological impairment. The service medical records indicate that in February 1976 he was involved in a motorcycle accident. No head injury was reported or diagnosed. Starting in May 1977 he complained of general malaise, sore throat, and severe right-sided headaches. The assessment was to rule out tonsillitis, and strep throat. On a November 1977 report of medical history completed prior to dental treatment, he denied any history of convulsions, fainting, or fits. In January 1978, the Veteran complained of loss of consciousness, blackouts, dizziness, and jerking in his extremities. These symptoms had reportedly first occurred approximately six months ago. A military neurology examination in January 1978 noted that the Veteran was somewhat reticent. An electroencephalogram (EEG) and computerized tomography (CT) of his brain were reported to be normal. A skull X-ray noted an area of increased density just superior to the orbital roof, which was possibly an irregular calvarial ossification or possible sphenoid osteochondroma. The impressions included history of "odd spells" (to rule out "C.O.," migraine, and conversion or secondary gain), and an osseous lesion of the cranium. At his separation examination in July 1978, the Veteran did not report any prior history of a psychiatric disorder. However, he did report a fainting spell every three to four months. On examination, his psychiatric and neurological evaluation was reported to be normal. In November 1981, the Veteran filed a service connection claim for hearing loss. He did not, however, claim a psychiatric or neurological disability at that time. A January 1982 VA physical examination was negative for any complaints or diagnoses of a psychiatric or neurological disability. More recently, the Veteran has sought private and VA medical care for his pre-syncopal episodes. A December 2000 cranial MRI noted some cerebral atrophy which was advanced for the Veteran's age. No evidence of a mass, midline shift, or cerebral edema was observed, however. The Veteran also reported a history of alcohol and drug abuse following service, and in a November 2000 clinical notation, an examiner stated "it can be very difficult to separate [the drug use] from any underlying seizure or atypical migraine disorder". A March 2001 examiner suggested that the Veteran's initial convulsion episode in 1975 was secondary to the acute trauma of an alleged rape. Currently, the Veteran displayed "no evidence of a seizure disorder from his term of service nor is there evidence of [a] seizure disorder at the present time." In a letter dated in November 2005, the Veteran's father reported that during the period his son suffered with blackouts he had also called home and threatened to commit suicide. The father indicated that the Veteran claimed his problems were "over a girl." Upon returning home from military service, the Veteran reportedly experienced severe headaches, and was given valium by a doctor. The Veteran testified before the undersigned Veterans Law Judge, seated at the RO, in December 2005. He stated that following a sexual assault during military service, he experienced headaches, blackouts, and incidents involving near-loss of consciousness. He stated these episodes have continued since that time. The Veteran has also received private medical care from R.R.S., M.D., beginning in 1996. In an August 2000 clinical notation, Dr. S. noted that while the Veteran was currently reporting blackout episodes approximately once per year, he had not previously reported these episodes when he had first seen Dr. S. in 1996. In a May 2007 clinical notation, Dr. S. described a CT scan of the Veteran's skull as normal, and X-rays of the Veteran's cranium were also negative for abnormalities. No lesions were observed. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of service connection for a disability, claimed as pre-syncopal episodes. While the Veteran did report in January 1978 a six-month history of loss of consciousness, blackouts, dizziness, and jerking in his extremities, he had previously just two months prior denied any history of convulsions, fits, or fainting in November 1977. Additionally, a neurological work-up in 1978 was essentially negative for abnormality, and no neurological disabilities were noted on service separation. While a 1978 skull X-ray noted an area of increased density just superior to the orbital roof, which was possibly an irregular calvarial ossification or possible sphenoid osteochondroma, no diagnosis of a neurological disorder was made at that time. In light of the absence of findings of any disease or disability during service, the evidence does not demonstrate that a chronic disability began during service. On VA examination 1982, about 4 years after service, the Veteran did not report any additional pre-syncopal episodes, headaches, blackouts, or other neurological symptoms. When he sought private medical care in 1996 from Dr. R.R.S., he did not initially report any syncope, and did not mention such symptomatology until 2000, over 20 years after service separation. When the Veteran's claim was presented to a VA examiner in March 2001, the examiner stated the Veteran appeared to have experienced an initial convulsion episode during service, but currently displayed "no evidence of a seizure disorder from his term of service nor is there evidence of [a] seizure disorder at the present time." Based on this opinion, the Board finds the preponderance of the evidence to be against the award of service connection for a disability, claimed as pre-syncopal episodes. The neurological examiner in March 2001 also suggested that the episodes might be due to cardiovascular or alcohol or drug abuse origin. As to substance abuse, the law prohibits a grant of direct service connection on the basis of incurrence or aggravation in the line of duty during service. 38 C.F.R. § 3.301; VAOPGCPREC 2-98 (Feb. 10, 1998). After the March 2001 VA examination, the Veteran was further evaluated at VA in August 2001 for the etiology of the paroxysmal events. The opinion was that the presyncopal events were associated with emotional aspects that surrounded the circumstances at the time. As such, this opinion does not link the presyncopal episodes to service and is not supportive of the Veteran's claim. In support of his claim, the Veteran has submitted his own statements and those of his family regarding onset of pre-syncopal episodes during military service. As laypersons, however, the Veteran and his family are not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, the etiology of presyncopal events is a complex medical question which requires specialized training for a determination as to diagnosis and causation, and the Veteran's statements cannot be accepted as competent medical evidence. While the Veteran is qualified to testify regarding such observable symptomatology as blackout episodes and headaches, the Board does not find his assertions regarding the continuity of these symptoms since service to be credible. See 38 C.F.R. § 3.303(b) (When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support the claim). As already noted above, the Veteran did not report any neurological or pertinent symptomatology at service separation, or for many years thereafter. This evidence contradicts the current allegation of continued problems beginning during service, and it undermines the Veteran's credibility as to the current claim. Even during service, he denied any history of convulsions, fainting, or fits in November 1977, but in January 1978, he contradicted this report, giving a six month history of the same. These conflicting histories also diminish credibility. See Caluza v. Brown, 7 Vet. App. 498 (1995) (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). Similarly, when he filed his claim for VA compensation benefits in November 1981, the disability claimed made no reference to presyncopal episodes, to include seizures, headaches and blackouts. Additionally, a 1982 VA general medical examination was negative for any complaints or symptoms of dizziness, headaches, blackouts, or similar episodes. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where claimant failed to account for lengthy time period between service and initial symptoms of disability). These facts also undermine the Veteran's credibility as to having these symptoms since service. For these reasons and based on all this evidence, the Board does not find the Veteran's statements as to the continuity of his pre-syncopal episodes to be credible. The Veteran's father has stated that the Veteran experienced headaches following service, for which he was given valium. However, this statement does not specify how soon after service the Veteran experienced these headaches, and does not otherwise connect them to service. As such, the father's statement is of limited probative value. In conclusion, the preponderance of the evidence is against the award of service connection for disability claimed as pre-syncopal episodes, as the currently claimed disability was not incurred during active military service or manifested to a compensable degree within a year thereafter. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). c. Psychiatric disability The Veteran seeks service connection for a psychiatric disability, to include PTSD. Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). 38 C.F.R. § 3.304(f), the regulation governing the establishment of service connection for PTSD, was modified effective July 13, 2010. See 68 Fed. Reg. 39843-52 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010) (correcting a clerical error in the Federal Register publication of July 13, 2010). This change is effective for all claims, such as the present claim, currently pending before VA. This change had the effect of liberalizing the evidentiary requirements for verification of a Veteran's claimed stressor. As revised, 38 C.F.R. § 3.304(f)(3) provides a Veteran's lay testimony alone may establish the incurrence of an in-service stressor if such stressor is consistent with the circumstances of the Veteran's service, involves a fear of hostile military or terrorist activity, and is found by a VA psychiatrist or psychologist to be sufficient to support a diagnosis of PTSD. Clear and convincing evidence to the contrary may, however, rebut such a presumption. Id. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a PTSD diagnosis will vary depending upon whether the appellant engaged in "combat with the enemy." See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (2008); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Participation in combat requires that the appellant have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999). If the VA determines the Appellant engaged in combat with the enemy and the alleged stressor is combat-related, then the lay testimony or written statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required - provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki, 6 Vet. App. at 98. If, however, the VA determines either that the appellant did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. Id. Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994); see also Fossie v. West, 12 Vet. App. 1, 6 (1998) (wherein the Court stated, "If the [appellant] engaged in combat, his lay testimony regarding stressors will be accepted as conclusive evidence of the presence of in-service stressors"). If, however, the appellant was not engaged in combat, he must introduce corroborative evidence of his claimed in-service stressors. In the present case, the Veteran's military service was entirely within the U.S., and does not reflect foreign service or service in any recognized combat theater. Further, the appellant's DD-214 is negative for award of the Combat Infantryman's Badge, Purple Heart Medal, or similar award indicative of participation of combat, and he does not claim combat participation; thus, there must be credible supporting evidence of record that the alleged stressors actually occurred in order to warrant service connection. See Cohen v. Brown, 10 Vet. App. 128 (1997). Additionally, the July 2010 modifications to 38 C.F.R. § 3.304(f) are not pertinent to the Veteran's claim, as he was not exposed to hostile military or terrorist activity during his term of military service. 38 C.F.R. § 3.304(f)(3) further provides: If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in the sources. Examples of behavior changes that may constitute credible evidence of a stressor include, but are not limited to: request for transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavioral changes. In cases involving personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C.A. § 5107(b). YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). Upon examination and acceptance into military service in November 1974, the Veteran was without psychiatric abnormality, and on his concurrent report of medical history, denied any history of depression or excessive worry, frequent trouble sleeping, or nervous trouble of any sort. Likewise, on service separation examination in July 1978, he was again without psychiatric abnormality, and on his concurrent report of medical history, he continued to deny any history of depression or excessive worry, frequent trouble sleeping, or nervous trouble of any sort. The Veteran has asserted that while stationed at Fort Bliss, Texas, beginning in May 1975, he was drinking in an off-base bar when a stranger approached him, identifying himself as a lieutenant colonel. He has variably claimed this incident took place in July, August, or September 1975. They began to drink together until the Veteran passed out, awaking in a private residence, where several men proceeded to sexually assault him. He was bound and gagged, and told he would be killed if he struggled. Thereafter, he was knocked unconscious, and he next remembered waking up on a sidewalk the next morning. He was taken to a nearby hospital by a passing bystander, but refused treatment, and returned to the barracks. The Veteran has pointed to several additional facts which he states corroborate his claim. First, he has stated that prior to the rape, he was a model soldier, graduating with honors from advanced individual training (AIT). A copy of a May 1975 diploma indicates the Veteran was in fact an honors graduate of his course in tank turret repair. Thereafter, his service personnel records contain four citations for Article 15 nonjudicial punishments beginning in July 1976 for infractions to include absence from his place of duty, failing to obey a lawful order, and wrongfully appropriating a military vehicle. His father has submitted a written statement indicating that the Veteran had threatened suicide during his active service, although the reason given by the Veteran at the time concerned difficulties with his girlfriend. In addition, the Veteran began to complain of severe headaches, blackouts, dizziness, loss of consciousness, and jerking in his extremities in service outpatient records, as discussed above. In November 1981, the Veteran filed a service connection claim for hearing loss, At that time, however, he did not claim a psychiatric or neurological disability. A January 1982 VA physical examination was negative for any complaints or diagnoses of a psychiatric disability. The post-service VA medical records indicate that the Veteran started to receive psychiatric treatment beginning in the late 1990s. His assessments and diagnoses include alcohol and cannabis abuse/dependence, major depressive disorder, depressive disorder, not otherwise specified (NOS), personality disorder NOS, dissociative features, somatization, and PTSD. It appears that the PTSD was associated with the Veteran's reported personal/sexual assault during active military service. The Veteran, however, reported in February 2001 that he and his brother were physically abused by their parents at the ages of 8 and 9 when they were beaten with belts. He reported that his alcohol use began prior to military service at the age of 16 and that his cannabis use began during his active service period. The Veteran also reported that both his mother and brother had been diagnosed with schizophrenia. A VA psychiatric examination was afforded the Veteran in October 2008, at which time he again gave a history of a sexual trauma during military service. Upon reviewing the claims file and interviewing the Veteran, the examiner diagnosed polysubstance abuse and anxiety disorder, not otherwise specified. A personality disorder, not otherwise specified, was also diagnosed. The provisions of 38C.F.R. § 3.303(c) define personality disorders as conditions not considered diseases or injuries within the meaning of applicable legislation. See Terry v. Principi, 340 F. 3d 1378, 1382-83 (Fed. Cir. 2003). Regarding the question posed by the Board within its March 2006 remand order, the examiner stated she could not, without resorting to mere speculation, determine if the record indicated any contemporaneous behavioral changes were indicative of a personal or sexual assault during military service. The examiner further stated that "[t]here is no objective data to support a personal/sexual assault was committed found in the claims file." In a June 2009 letter, J.C.B., M.D., a VA physician, stated he has been treating the Veteran since 2006 for psychiatric symptoms. Dr. B. confirmed a current diagnosis of PTSD, which was "a direct result of [military sexual trauma] perpetrated by a superior officer." He also noted that the Veteran had no prior history of psychiatric symptoms or substance abuse before entering military service. The Board notes, however, that the Veteran has reported physical abuse by his parents prior to his entrance into military service. Additionally, he stated he began drinking alcohol prior to military service as well, contradicting Dr. B.'s statement. The Board is not bound to accept medical opinions that are based on an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460- 61 (1993). As such, this evidence is of low probative value. Pursuant to the Board's September 2009 remand order, the Veteran was afforded another VA psychiatric examination in March 2010. The claims file was reviewed in conjunction with the examination. He stated his mother was diagnosed with schizophrenia, and had to be hospitalized. His parents subsequently divorced. Physical abuse from both parents was also noted. After examining the Veteran and reviewing the claims file, the examiner concluded that the criteria for a diagnosis of PTSD were not met. A diagnosis of anxiety disorder was warranted, however. The examiner further stated that he would have to resort to mere speculation to state whether it is at least as likely as not the Veteran's anxiety was incurred during military service. The examiner noted that the Veteran had experienced traumatic events subsequent to service, including a failed business, prior failed marriages, and repeated substance abuse. Next, the examiner opined that he would have to resort to mere speculation to determine if any contemporaneous behavioral changes, including the Veteran's reported blackouts, were indicative that a personal or sexual assault had occurred. According to the examiner, the Veteran's negative behavior during service, including his Article 15 punishments, did not provide objective evidence of a personal or sexual assault. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of service connection for a psychiatric disability, to include PTSD. Specifically, the Board finds the Veteran's various accounts of this alleged assault to be inconsistent, suggesting it may not have taken place. First, the Board notes that the Veteran has variously stated the attack took place in July, August, and September 1975. In a 2009 statement, however, he stated the assault occurred after approximately 16 months of military service, which would suggest it occurred in approximately May 1976. He has also stated that prior to the assault, he was an exemplary soldier, as evidenced by his graduation with honors from AIT. Thereafter, his performance and interest in the military fell, resulting in four Article 15 disciplinary actions. While the Veteran did in fact graduate AIT with honors and was subsequently brought up on four Article 15 actions as he stated, the Board also notes that he intended at one point to reenlist in 1978, suggesting he still viewed the military favorably at the end of his service. According to an undated military personnel record submitted by the Veteran, he extended his enlistment by one year sometime after he made E4 in 1977, and another record contains a February 1978 notation by a superior indicating the Veteran "[p]erformed admirably. Shows a good appearance. Very good prospect." This same record indicates the Veteran was considering reenlistment as late as April 1978, well after his alleged assault. Overall, this evidence tends to refute his claim that his military performance and favorable views about the service noticeably changed after the assault. The Board is also cognizant that an investigative report of the Veteran's alleged stressor incident has been received from the U.S. Army Criminal Investigation Command. This report, however, was generated in September 2004, many years after the alleged incident, and is merely a reflection of the Veteran's own account of the claimed sexual assault. Therefore, it cannot be accepted as corroborating evidence by the Board. The Veteran's psychiatric disability claim was twice presented to VA psychiatric examiners in October 2008 and again in March 2010, as detailed above, and neither examiner found sufficient behavioral changes during service or other evidence within the record to support the Veteran's assertion that the alleged assault had taken place. Both examiners stated that it would be necessary to resort to mere speculation to opine whether any in-service contemporaneous behavior changes or related evidence, indicate that a personal/sexual assault had been committed. According to the March 2010 examiner, the Veteran's negative behavior during service, including his Article 15 punishments, did not provide objective evidence of a personal or sexual assault. In the event that an examiner finds that he/she cannot provide such an opinion without resorting to speculation, then "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). In this case, it is clear that the March 2010 examiner carefully reviewed and assessed all of the relevant information. Additionally, the examiner provided reasons and rationale, as indicated. As such, the Board may proceed with the issue on appeal. Jones, at 390-91. Significantly, as to PTSD, the March 2010 examiner was well aware of the Veteran's past treatment for PTSD at the VA. Even when considering that the stressor criterion may be met on the basis of the reported in-service rape, the examiner then responded "no" to the question of "Does the Veteran meet the DSM-IV criteria for a diagnosis of PTSD?" Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (2011) (conforming to the Diagnostic and Statistical Manual for Mental Disorders) (DSM-IV). This report is of highest probative value in that it was based on the most comprehensive record, and the examiner adequately discussed the relevant facts of the case and specified whether the criteria required by regulation for a diagnosis of PTSD were met. While he was diagnosed with an anxiety disorder, no examiner suggested the onset of such a disorder during military service nor is there evidence that tends to link the anxiety disorder to service. The March 2010 examiner noted that the Veteran had also experienced traumatic events subsequent to service, including a failed business, prior failed marriages, and substance abuse. Insomuch as the Veteran has reported onset of such psychiatric symptoms as anxiety, depression, and panic attacks during service shortly following his stressor incident, the Board again observes that the Veteran was not diagnosed with a psychiatric disability during military service, and he denied any history of such psychiatric symptoms as depression, excessive worry, or any other nervous trouble on service separation examination in July 1978. No psychiatric abnormality was found at that time. Additionally, a 1982 VA general medical examination was negative for any complaints or symptoms of a psychiatric disability. While the Veteran did file a VA compensation claim in 1981, he did not report or seek compensation for a psychiatric disorder at that time. The Veteran did not begin seeking psychiatric treatment until the late 1990's, approximately 20 years after service separation. See Mense, 1 Vet. App. at 356 (affirming Board's denial of service connection where claimant failed to account for lengthy time period between service and initial symptoms of disability). These facts suggest against any finding of a continuity of symptomatology of an anxiety disorder or any other psychiatric disability since service, or for many years thereafter. Finally, as already outlined in this decision, the Veteran's credibility has proven to be suspect, such that the Board does not accept his allegations of continuity of psychiatric symptomatology in light of the evidence discussed above. In denying the Veteran's claim, the Board is cognizant of the June 2009 letter from a VA physician suggesting that the Veteran had a current diagnosis of PTSD as a result of an in-service sexual assault. As already noted, however, that opinion is based solely on the Veteran's unsubstantiated account of an in-service incident which has not been verified within the record, and contains other factual assertions which are contradicted within the claims file. The Board is not bound to accept medical opinions that are based on an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Board has also considered the various lay statements submitted by the Veteran's family, friends, and pastor. While these parties are obviously competent to testify regarding observable psychiatric symptoms currently exhibited by the Veteran, such statements, in and of themselves, do not serve to corroborate the Veteran's claimed stressor event. None of the statements submitted independently verify the Veteran's reported stressor, as none of the parties, except for the Veteran's father, knew him at that time. The Veteran's father's statement indicates only that the Veteran threatened suicide during military service, allegedly over troubles with a girl. Reviewing VA examiners have not found this statement sufficient to corroborate the Veteran's claimed sexual assault. Likewise, the Veteran's own lay assertions, in and of themselves, and in light of the credibility findings herein, are not sufficient to verify his reported stressor in the absence of corroborating evidence. Even in cases of service connection for PTSD based on personal assault or similar trauma, credible supporting evidence of the claimed stressor must still be provided. Patton, 12 Vet. App. at 277 (citing 38 C.F.R. § 3.304(f)). In the absence of such evidence in the present case, service connection for a psychiatric disability, to include PTSD, must be denied. In conclusion, service connection for a psychiatric disability, to include PTSD, must be denied, including as the Veteran's alleged in-service stressor has not been verified within the record, and onset of a psychiatric disability during active military service has not been established. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a disability, claimed as pre-syncopal episodes, headaches, and blackouts, is denied. Entitlement to service connection for a psychiatric disability, to include PTSD, is denied. ____________________________________________ M. SABULSKY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs