Citation Nr: 0514125 Decision Date: 05/24/05 Archive Date: 06/01/05 DOCKET NO. 03-21 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Counsel INTRODUCTION The veteran served on active duty from December 1984 to July 1985. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for PTSD. The veteran testified before the Board at a hearing that was held via videoconference from the RO in February 2005. The Board notes that the veteran has also raised a claim for a temporary total rating based on a period of hospitalization in May and June 2004. See 38 C.F.R. § 4.29 (2004). This matter is referred to the RO for its consideration in the first instance. FINDINGS OF FACT 1. All notices and assistance owed to the veteran have been provided, and all evidence needed for an equitable disposition of the claim has been obtained. 2. The veteran did not serve in combat while on active duty. 3. The veteran first manifested a psychiatric disability many years after service, and that disability is not related to a corroborated stressor that occurred in service. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. § 1130 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he suffers from PTSD and psychiatric disorders from sexual battery or rape that he suffered in May 1985, while on active duty. Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2004). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2004). Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2004). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Such determination is based on an analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection for PTSD generally requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (2004); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2004). In 1996, VA adopted the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) in amending 38 C.F.R. §§ 4.125 and 4.126 (2004). See 61 Fed. Reg. 52,695-52,702 (1996). The veteran has never contended that he engaged in combat with the enemy as defined within 38 U.S.C.A. § 1154(b) (West 2002). As a result, as a matter of law, a medical provider cannot provide supporting evidence that the claimed in- service event actually occurred based on a post-service medical examination. Moreau v. Brown, 9 Vet. App. 389, 395-6 (1996). In addition, the veteran's own testimony, standing alone, will not be sufficient. Ibid. The United States Court of Appeals for Veterans Claims (Court) has indicated that prior Court statements that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'" of a claimed stressor and that "[a]n opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of the stressor" were made in the context of discussing PTSD diagnoses other than those arising from personal assault. Patton v. West, 12 Vet. App. 272, 280 (1999); see also Cohen v. Brown, 10 Vet. App. 128 (1997). With regard to personal assault cases, the Court pointed out that "VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." Patton, 12 Vet. App. at 280 (citing VA Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c (8), (9)). The Court has also held that these provisions of M21-1, which provide special evidentiary procedures for PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations. See YR v. West, 11 Vet. App. 393 (1998); Cohen, supra. Specifically, M21-1, Part III, 5.14c subparagraph (8) (redesignated Part VI, 11.37b(2) (Change 112, Mar. 10, 2004), provides that "[i]f the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in-service stressful incident." Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Examples of behavior changes that might indicate a stressor are (but not limited to): visits to a medical or counseling clinic or dispensary without specific diagnosis or specific ailment; changes in performance and performance evaluations; increased disregard for military or civilian authority; increased interest in tests for Human Immunodeficiency Virus (HIV) or sexually transmitted diseases; and breakup of a primary relationship. Subparagraph (9) provides that "[r]ating boards may rely on the preponderance of evidence to support their conclusions even if the record does not contain direct contemporary evidence. In personal assault claims, secondary evidence which documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." See M21-1, Part VI, 11.37b(2)(d) (Change 112, Mar. 10, 2004). The Court noted in Patton that M21-1 improperly appeared to require that the existence of the in-service stressor be shown by a preponderance of evidence. Any such requirement would be inconsistent with the so-called "equipoise" doctrine where the benefit of the doubt is given to the claimant unless the evidence preponderates against the claim. See 38 U.S.C.A. § 5107(b) (West 2002). In addition, 38 C.F.R. § 3.304(f)(3) 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; pregnancy tests or 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 these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a 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 behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing the veteran the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3). Notably, in October 2003, the RO requested from the veteran these types of evidence described in M21-1 and 38 C.F.R. § 3.304(f). See Wood v. Derwinski, 1 Vet. App. 190, recons. denied, 1 Vet. App. 406 (1991) (per curiam) ("duty to assist" veteran in developing claim is not one-way street). The veteran has not replied to this request. The Board has therefore relied on the available evidence in determining if the alleged stressor can be corroborated. The Board is indeed very mindful of the fact that veterans claiming service connection for disability due to in-service personal assault face unique problems documenting their claims. Since assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. Beyond the above, following the point at which it is determined that all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board is not required to accept a claimant's uncorroborated account of his active service experiences. See Wood, 1 Vet. App. at 192. The question of a "stressor" also bears upon credibility determinations, as certain veterans who "engaged in combat with the enemy" gain evidentiary presumptions. 38 C.F.R. § 3.304(d). Under the controlling regulation, there must be credible supporting evidence that the claimed service stressor actually occurred. 38 C.F.R. § 3.304(f). The occurrence of an event alleged as the "stressor" upon which a PTSD diagnosis is based (as opposed to the sufficiency of the alleged event to cause PTSD) is an adjudicative determination, not a medical determination. Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion 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 adjudicators; . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As noted above, the veteran served on active duty in the United States Marine Corps from December 1984 to July 1985. His service records show that he was discharged after only a few months of active duty because of musculoskeletal back syndrome. In August and September 1999, the veteran was admitted to an inpatient VA substance abuse rehabilitation program. Diagnoses included alcohol dependence, marijuana dependence, cocaine dependence, dysthymia, and borderline personality traits. Progress notes recite the veteran's account of having started using alcohol when he was 10 years old and marijuana when he was 12 years old; he also recounted starting to abuse cocaine when he was 30 years old. He has undergone additional VA hospitalizations for the same problems both before and since that time (such as May-June 1998; November-December 2000). Importantly, no reference during this treatment is made to service, PTSD, or PTSD- related symptoms (flashbacks, etc.), providing only negative evidence against this claim. The veteran underwent a VA mental disorders examination in November 2000 in connection with a pending claim for service connection for depression. At that time, the veteran did not report any history of any incident during his active service. However, he stated that he had been depressed since his childhood, along with chronic feelings of emptiness and worthlessness. Over the years, he had engaged in self- mutilation for uncertain reasons. He also described a long history of substance and alcohol abuse. The examiner noted that the veteran had been hospitalized for substance abuse treatment programs at VA facilities several times since 1998. The examiner stated: "This veteran has a long history of depressive symptoms which he states began in his teenage years. He was drinking heavily by that time and it is possible that some depressive symptoms over the years have been related to a substance induced mood disorder." The examiner also noted the veteran's in-service back injury, but he remarked that records did not indicate any related psychiatric symptomatology initially. In recent years, the veteran reported that his inability to work because of back pain had compounded his underlying chronic depressive state. The examiner stated, however, that depressive symptoms are a typical characteristic in patients with a borderline personality disorder and are commonly associated with alcohol usage. The examiner stated that the veteran's symptoms clearly met the DSM-IV criteria for a diagnosis of borderline personality disorder. Other diagnoses included dysthymic disorder, alcohol dependence, marijuana dependence in remission, and cocaine dependence in remission. As a whole, the Board must find that this medical report provides more evidence against this claim. The veteran was hospitalized at a Mississippi state hospital in November and December 2001 with a presenting history of 15 to 16 years of depression associated with sadness, anhedonia, helplessness, worthlessness, decreased energy, and insomnia. He also reported having nightmares about being taken advantage of sexually in service. At that time, he reported thinking of bad things that happened to him in service. At admission, he described an arrest record dating back to the late 1980s for various offenses. Some progress notes indicate that the veteran was felt to have classic PTSD with dissociative symptoms. In November 2002, the Social Security Administration (SSA) determined that the veteran was disabled for SSA disability benefits purposes based on various conditions, including back problems, PTSD, dysthymic disorder, depressive disorder, borderline personality traits, alcohol dependence, cocaine dependence, marijuana dependence, and associated deficits. Without elaboration, the SSA decision noted that the veteran had reported flashbacks of unpleasant aspects of his military service. The Court has held that, while a SSA decision is not controlling for purposes of VA adjudications, the decision is "pertinent" to a veteran's claim. See Martin v. Brown, 4 Vet. App. 136, 140 (1993). Records from 2002 and 2003 from Marsha W. Darnell, M.S., L.P.C., a counselor with the Jackson Vet Center describe the veteran's treatment and therapy, along with diagnoses of PTSD "due to a sexual assault in the military." Clearly, this medical opinion supports the veteran's claim. Recent VA medical records from 2004 show that the veteran is now being treated for various behavioral and psychiatric problems, including alcohol and cocaine dependence and depressive disorder with multiple episodes of self- mutilation. Some of those treatment records refer to a history of PTSD secondary to a rape during the veteran's active service. However, on psychiatric testing in February 2004, certain test results showed either extreme psychological distress or purposeful exaggeration (or both). This testing provides evidence against the veteran's claim. In several consultation reports from 2004, the examiner diagnosed depressive disorder not otherwise specified, alcohol dependence, and cocaine dependence in remission, as well as borderline personality disorder. The examiner described the veteran's alleged in-service stressor (the sexual battery or rape), but he remarked that the veteran had repeatedly denied any sexual or physical abuse until an October 2001 hospitalization. The Board must find that this report provides more evidence against the veteran's central contention that he was assaulted in service. The veteran was hospitalized in a VA domiciliary program for sexual battery victims in May and June 2004. Discharge diagnoses included PTSD secondary to military sexual trauma, depressive disorder, alcohol dependence, cocaine dependence in remission, and borderline personality disorder. At the February 2005 Board hearing, the veteran testified that he first sought treatment for flashbacks and behavioral changes (such as cutting himself) in 1996 or 1997. He also stated that between 1985 (when he was discharged from active duty) until 1989, he had worked in several different jobs because of his difficulty in getting along with people. But after that time, he did work for one firm until 1997. Upon review of all evidence, the Board must conclude that service connection is not warranted for PTSD. First, the service records do not support the veteran's claim and provides clear evidence against this claim. The veteran was discharged from the Marine Corps after only a few months of service. However, the basis for the separation from service was musculoskeletal back syndrome, which had existed prior to service. Indeed, the veteran was reportedly doing well in service until February 1985 when he started boot camp. This sequence of events does not suggest any change in the veteran's performance after the alleged personal assault, which the veteran has contended occurred either in April or May 1985, that is, several months after he started being unable to participate in training in Infantry Training School. The Board notes that the veteran requested to see a psychiatrist on May 20, 1985 because of depression and lethal intents; the causes were described as increased financial and legal problems, as well as poor adjustment to the Marine Corps. On examination, he avoided eye contact and mumbled. The assessment was a personal disorder that was non- specified, and he was referred to psychiatry. While this might suggest behavioral changes, the progress note actually described alternative reasons for the veteran's seeking psychiatric assistance (that is, financial and legal problems, as well as poor adjustment to service). In light of the alternative causes for the behavioral complaints, the Board finds no need to seek additional medical interpretation of this May 1985 treatment note or its relation to later psychiatric diagnoses. See M21-1, Part VI, 11.37b(2)(d) (Change 112, Mar. 10, 2004). The Board finds this medical record to provide evidence against this claim. Second, there is no indication of any symptoms or diagnoses of PTSD for many years after service. The earliest available evidence of any psychiatric treatment was in the late 1990s, and that treatment involved mainly substance and alcohol abuse. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Third, the veteran did not serve in combat, and there is no corroboration in any way for his alleged trauma stemming from the personal assault. The veteran has stated that he did not tell anyone about the alleged personal assault until either the late 1990s or the early 2000s. Indeed, according to a September 1999 treatment record, the veteran was not clear about the specific trauma. Fourth, there are inconsistencies in the veteran's description of the alleged stressor. For instance, earlier progress notes (such as in September 1999) indicate that the veteran was "never clear about specific traumatic events that occurred while on active duty." According to a March 2002 Vet Center intake assessment, the veteran described the involvement of nine soldiers in the alleged incident; he also stated that memories of the assault had come back after watching a rape scene in a movie in 1997. According to a May 2002 progress note, the veteran's account of sexual trauma involved one man. However, in his July 2003 substantive appeal (VA Form 9), the veteran referred to the involvement of five soldiers. Indeed, on an April 2002 examination, the veteran reported that he was having nightmares related to his experiences in Vietnam even though he never served in Vietnam. At that time, despite the veteran's reports of PTSD symptoms, the evaluation apparently was negative; the diagnoses were rule out depression, a history of alcohol dependence, and borderline personality traits. Such statements from the veteran citing his service in Vietnam provide very negative evidence against his claim as it clearly undermines his own recollections of events during service. Because of these inconsistencies, the Board finds that the probative value of his allegations is compromised. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). The provisions cited above recognize that personal assault such as here alleged can often be established only by secondary evidence and the inferences that can be drawn therefrom. However, service connection may not be predicated on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102 (2004). Precisely because service connection may not be based on conjecture, it is important that the factors enumerated above not have alternative explanations or be subject to significant questions of credibility. The factors addressed in above suggest a change in behavior without rational alternative explanations, which is not found in this case. Otherwise, establishing the existence of the claimed stressor is inevitably an exercise in speculation. Thus, the factors set forth above contemplate changes in behavior roughly contemporaneous with the claimed incident such as to indicate the actual occurrence of the stressor. Victims of personal assault are often wary of reporting the crimes. That is why review of claims predicated on such allegations must consider alternative sources of evidence. In this regard, the Board notes that the veteran's account of how he started recollecting the trauma from service is not consistent with the chronology as it appears in the available evidence. The veteran has testified that he started having flashbacks to the in-service trauma after watching a rape scene from a movie in 1997. However, on treatment in September 1999, he was not clear about the sexual trauma. In addition, in 2000, in connection with a claim for service connection for depression, he did not mention any in-service psychiatric stressor that would have triggered any problems or mention any recent incident that had caused old memories of the alleged trauma to resurface. Thus, despite the veteran's testimony, the contemporaneous evidence does not support his contention that he started remembering the in- service personal assault in 1997 or even shortly thereafter. The lack of consistency in his overall story is incompatible with the searing emotional effect of an actual assault because, in its nature, a sexual assault sufficient to support a diagnosis of PTSD should be vividly recalled. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998) (Board has fact-finding authority to assess the quality of the evidence before it, including the duty to analyze its credibility and probative value, as well as authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Yet the veteran cannot seem to provide the precise facts. This point might not seem important in a scenario in which a claimant had lengthy service; here, however, the scenario involves a brief period of service in which some medical records provide an alternate reason for the veteran's alleged PTSD. In short, the Board does not find the veteran's allegations to be credible, let alone corroborated by the record. The Board is mindful that SSA as well as multiple psychiatric and counseling professionals have described treatment for PTSD as being related to an in-service personal assault. However, the Board can find no credible support for the veteran's allegation that he was assaulted in service. See Zarycki, supra; Wood, supra. Since that stressor is not corroborated, the diagnosis does not serve to establish service connection for PTSD. See 38 C.F.R. § 3.304(f). See also Swann v. Brown, 5 Vet. App. 229, 233 (1993) (medical opinion premised on unsubstantiated account is of no probative value and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (Board is not bound to accept doctor's opinion based exclusively on claimant's recitations). The record before the Board demonstrates that PTSD has been diagnosed. Notwithstanding, as stated by the Court, "[j]ust because a physician or other health professional accepted the appellant's description of his active service experiences as credible and diagnosed the appellant as suffering from PTSD does not mean the [Board is] required to grant service connection for post-traumatic stress disorder." Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). It is also clear that the Board is not required to accept an appellant's statements regarding his alleged symptoms, including nightmares, flashbacks, and other difficulties he associates with his active service, if the Board does not find the statements regarding his symptoms to be credible. Finally, the Board also notes that the veteran has longstanding problems with alcohol and substance abuse and that his psychiatric symptoms appear to have coincided to a great degree with these problems. In conclusion, the weight of the credible evidence demonstrates that the veteran does not have PTSD that was incurred in or aggravated by active service or that is related to service or to any corroborated incident therein. As the preponderance of the evidence is against the claim, the "benefit-of-the-doubt" rule is not applicable, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant The Board also finds that VA has satisfied all duties to notify and assist the appellant. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2004). VA has essentially satisfied the requirements that apply to cases pending before VA on November 9, 2000 (even if the initial decision was issued before that date), and that require VA to notify a claimant upon receipt of a complete or substantially complete application and before issuance of an initial unfavorable decision of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim; this notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. The notice 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; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the initial unfavorable decision was in January 2003. But even under Pelegrini, the notices to the appellant informed him of the bases for the relevant decisions, what types of evidence would be needed, and how the evidence would be secured. The RO sent the appellant correspondence in October 2002, and October 2003 (questionnaire relating to PTSD due to personal assault); a statement of the case in May 2003; and supplemental statements of the case in January 2004 and August 2004. There was no harm to the veteran, as VA made all efforts to notify and to assist him with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the more general notice of the need for any evidence in the veteran's possession. Any defect with regard to the timing and content of the notices to the veteran was harmless because of the thorough and informative notices provided throughout the adjudication of the claim. See Mayfield v. Nicholson, __ Vet. App. __, No. 02-1077 (U.S. Vet. App. Apr. 14, 2005). Thus, VA has satisfied its "duty to notify" the veteran. VA has also obtained all relevant evidence identified by the veteran and has provided the veteran with an examination. Thus, VA has complied with all duties to assist the veteran in securing relevant evidence. ORDER Service connection for PTSD is denied. ______________________________________________ JOHN J. CROWLEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs