Citation Nr: 0814530 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-38 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a neck disability. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for a left leg disability, to include left leg numbness secondary to the back disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The veteran had active service from May 1980 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied the benefits sought on appeal. The veteran testified before a Hearing Officer at the RO in July 2006. He also testified before the undersigned Veterans Law Judge via videoconference in March 2008. Copies of the transcripts of these hearings have been associated with the claims file. At the time of the hearing, the record was held open for 30 days. This period of time has elapsed. Also at the time of the hearing, the veteran submitted additional evidence. He waived initial consideration of this evidence by the agency of original jurisdiction (AOJ), the RO in this case. See 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. All evidence necessary to decide the claims has been obtained; the veteran has been provided notice of the evidence necessary to substantiate his claims and has been notified of what evidence he should provide and what evidence VA would obtain; there is no indication that the veteran has evidence pertinent to his claims that he has not submitted to VA. 2. There is no medical evidence of neck or back injuries or disabilities until several years after service and then only after a post-service, work-related injury; there is no competent evidence that links a current diagnosis of a neck disability or a back disability to any incident of service, to include alleged trauma. 3. There is one isolated complaint of bilateral knee pain in the service medical records but there is no indication of a left leg injury, to include as the result of a personal assault, and a diagnosis of a left leg disability is not apparent until many years after service; there is no competent evidence that links a current diagnosis of a left leg disability to any incident of service, to include alleged trauma. 4. There is medical evidence of a diagnosis of PTSD in recent years but the veteran did not serve in a combat zone and the diagnosis was not based upon a confirmed in-service incident; there is no credible or corroborating evidence to confirm the veteran's alleged in-service stressor of being physically assaulted. CONCLUSIONS OF LAW 1. Service connection for PTSD is not warranted. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2007). 2. A neck disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 3. A back disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 4. A left leg disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The VCAA provides, among other things, for notice and assistance to VA claimants under certain circumstances. VA has issued final rules amending its adjudication regulations to implement the provisions of the VCAA. See generally 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The intended effect of these regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits or who attempts to reopen a previously denied claim. In order to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA 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. This fourth element of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that VA has met these duties with regard to the claims on appeal. There is no issue as to providing an appropriate application form or completeness of the application. The veteran was issued multiple VCAA notification letters during the pendency of this appeal, including letters issued in March 2004, May 2004, July 2004 and May 2005. In March 2006, the veteran was issued a letter regarding the evidence and information needed to establish a disability rating and an effective date, as outlined in Dingess. These notices fulfilled the provisions of 38 U.S.C.A. § 5103(a). The veteran was informed about the information and evidence not of record that is necessary to substantiate his claims; the information and evidence that VA will seek to provide; the information and evidence the claimant is expected to provide; and to provide any evidence in his possession that pertains to the claims. The Board also finds that the May 2004 VCAA notification letter informed the veteran of evidence from sources other than service records or evidence of behavior changes may constitute credible supporting evidence of the stressor, in order to substantiate the veteran's claim for service connection for PTSD based on a personal assault. See 38 C.F.R. § 3.304(f)(3). The Board notes, that although the veteran asserted that he incurred a left leg injury directly in service, the veteran also asserted that he has a leg disability secondary to the back disability. See 38 C.F.R. § 3.310. Review of the record does not indicate that the veteran was provided notice regarding secondary service connection. As the instant decision denies service connection for the back disability, however, secondary service connection is denied as a matter of law and additional development is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II), the Court held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the May 2005 and March 2006 VCAA letters were issued after the rating decision on appeal. The Board is cognizant of recent Federal Circuit decisions pertaining to prejudicial error. Specifically, in Sanders v. Nicholson, 487 F.3d 881 (2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial and that once an error is identified by the Court, the burden shifts to VA to demonstrate that the error was not prejudicial. The Federal Circuit reversed the Court of Appeals for Veterans Claims' holding that an appellant before the Court has the initial burden of demonstrating prejudice due to VA error involving: (1) providing notice of the parties' respective obligations to obtain the information and evidence necessary to substantiate the claim; (2) requesting that the claimant provide any pertinent evidence in the claimant's possession; and (3) failing to provide notice before a decision on the claim by the agency of original jurisdiction. (Emphasis added.) See also Simmons v. Nicholson, 487 F.3d 892 (2007). In this case, the timing error with respect to the notice requirements noted above raises a presumption of prejudicial error but such error is rebutted by the record. The RO cured the timing defect by providing complete VCAA notice together with re-adjudication of the claims, as demonstrated by the July 2007 supplemental statement of the case (SSOC). Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). The Court has held recently that an SSOC that complies with applicable due process and notification requirements constitutes a readjudication decision. See Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006) (Mayfield III); see also Prickett, supra (holding that a statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). As the SSOC complied with the applicable due process and notification requirements for a decision, it constitutes a readjudication decision. Accordingly, the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Mayfield III, 20 Vet. App. at 541-42, citing Mayfield v. Nicholson, 444 F.3d 1328, 133-34 (Fed. Cir. 2006) (Mayfield II). Thus, the presumption of prejudice against the veteran because of the timing of the notice is rebutted. See Sanders, supra. The veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, the veteran has been provided a meaningful opportunity to participate effectively in the processing of his claims by VA. While the veteran does not have the burden of demonstrating prejudice, it is pertinent to note that the evidence does not show, nor does the veteran contend, that any notification deficiencies, either with respect to timing or content, have resulted in prejudice. The Board also finds that all necessary assistance has been provided to the veteran. The Board notes that VA was initially unable to locate the veteran's service medical records. The Board notes, however, that the claims file now contains the veteran's service medical records and personnel records, as well as post-service private medical records and VA treatment records. VA will not deny a post-traumatic stress disorder 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 him or her 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); see also M21-1MR, Part III, Subpart iv, Chapter 4, Section H30. The Board finds that the RO complied with the special development procedures applicable to claims for service connection for PTSD based upon an alleged in-service personal assault. The Board notes that there is indication in the record that the veteran receives disability benefits from the Social Security Administration (SSA). The veteran has been advised by the RO of the type of evidence needed to substantiate his claims. The veteran was also advised that VA had a responsibility of getting relevant records from any Federal agency, such as SSA, but was also informed that he must give VA enough information about his records so that VA could request them. In this case, the Board finds that a remand to seek to obtain SSA records is not required as the basis of the denial of service connection is lack of credible evidence of the incident the veteran asserts occurred in service. The Board finds that there is no reasonable possibility that SSA records dated many years after service would provide collaborating evidence of the incident the veteran has asserted occurred in service. Given these considerations, any additional development would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). In addition, the Board notes that the veteran has not been provided with a VA examination regarding the disabilities on appeal. The veteran has asserted that all disabilities stem from being physically assaulted while in a Navy brig. In disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court noted that establishment of in-service event, injury, or disease requires weighing of the facts. In this case, the Board finds that the evidence of an in-service injury is not credible. Therefore, as the service medical records are negative for any of the disabilities at issue, all four disabilities at issue are alleged to be due to the same in- service incident and as the Board finds that there is no credible or corroborating evidence that confirms this alleged incident, there is no duty to provide a VA examination or medical opinion with respect to any of the claims on appeal. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the foregoing, the Board finds that VA has fulfilled its duty to notify and assist the veteran in the claims under consideration. Adjudication of the claims at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §1131; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD requires: (1) Medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128 (1997). 38 C.F.R. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). Participation in combat, a determination that is to be made on a case-by-case basis, requires that a veteran 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); Moran v. Principi, 17 Vet. App. 149 (2003); see also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). If the claimant did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the claimant's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). 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. 38 C.F.R. § 3.304(f)(3). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background The veteran asserts that he has PTSD, as well as neck, back and left leg disabilities, due to service. Specifically, the veteran asserts that during service he fell asleep while on watch. He states that he was awoken and put in the brig for approximately 90 days. During that time, he has stated that he was "attacked and beat up" by two guards. He asserts that this incident led to the physical and psychiatric disabilities he is claiming on appeal. In his testimony before the Board, the veteran asserted that he was attacked more than once and that he was hit with brass knuckles. He contended that he sought treatment for these injuries while on active duty. He also testified that he was threatened with being thrown off the ship, as another service member had been. Asked if he had reported being attacked, he responded that he was informed to stay quiet or his life would end. Review of the service medical records indicates that in January 1981 the veteran was seen after being referred for a safety violation after drinking the night prior. The veteran was found to be in a state of mild intoxication and the clinician found that drug abuse should be ruled out as a diagnosis. In a record dated later in January 1981, the diagnosis was drug abuse. In July 1981, the veteran sought treatment for "sleep walking". The clinician completing the record indicated that the veteran had increased worry, that the veteran had difficulty getting used to Navy life, being told what to do, waking up early, and getting written up by his supervisor. The clinician questioned whether the veteran had a "situational reaction." A report of medical examination dated in February 1982, prior to discharge, does not indicate that the veteran was diagnosed as having a psychiatric disability or any neck, back or left leg disability. In a report of medical history the veteran completed at this time, the veteran did not note that he had any history of a psychiatric disability, or a back or neck disability. Although the veteran noted that his knee cap sometimes hurt, he indicated that he did not have a history of swollen or painful joints. The clinician adding notes to the record indicated that the veteran had knee pain when walking down stairs. The clinician did not provide a diagnosis for this pain or attribute it to an injury during service. Review of service personnel records reveals that in January 1981 the veteran was found to have wrongfully used valium. The veteran's punishment included 20 days of correctional custody. In December 1981, the veteran was charged with failure to report an offense again the Uniform Code of Military Justice. In December 1981, the veteran was informed that he was being retained, but that any further misconduct may result not only in disciplinary action but in an administrative discharge. A February 1982 document indicates that the veteran was being discharged, however, because he created an administrative burden to command due to minor disciplinary infractions and unsatisfactory performance. The commanding officer commented that although the veteran exhibited average and acceptable behavior and performance at the start of his period of service, both his behavior and performance have been steadily declining. The officer continued that despite having been provided counseling at all levels of the chain of command, extra military instruction, non-judicial punishment, correction custody and every opportunity to shape up, the veteran remained unresponsive. Private treatment documents detail that the veteran sought treatment after post-service work injuries. The record includes an August 1986 neurological consultation. The clinician completing the record reported that the veteran suffered two separate industrial injuries while employed as a houseman at a lodge (post-service). In April 1986, the consultation report indicates that the veteran was carrying a garbage can and felt a sudden "pop" in his lumbar region. The report also indicates that in June 1986 the veteran fell down a flight of stairs and landed on his buttocks, with onset of severe low back pain. In another August 1986 private record, the veteran report that he never had any back problems while in service. A May 1988 private treatment record indicates that the veteran had a history of back problems since 1986. In a December 1992 private treatment record, the veteran asserted that he had back pain from a fall five years prior. In a November 2003 VA treatment record, a clinician indicated that the veteran had neck and back pain for10 to 15 years. This would place the onset of the neck and back pain between 1988 to 1993 or years after the veteran's discharge from service. Other treatment records, however, document the veteran's assertion that he was beaten in service or date the onset of pain to while the veteran was in service. These records include a February 2004 VA treatment record in which the veteran recounted his account of being attacked while in the brig. In a November 2004 private treatment record, the veteran was noted to have neck and back pain since 1980 (in service). A July 2005 VA treatment record indicates that the veteran had dysthymia/depression and a pain disorder due to both medical and psychological factors. The clinician completing this record indicated that it was unclear whether the veteran had PTSD, but that he had a history of the disability according to records reviewed. The clinician continued that the veteran's story was vague and inconsistent. She found that it was difficult to tell whether the veteran was a poor historian due to poor concentration or whether there was "gain involved." A September 2006 VA treatment record includes diagnoses of a somatization disorder, chronic PTSD, an adjustment reaction, and depression. Analysis The Board finds that the preponderance of the evidence is against the veteran's claims that his PTSD, neck disability, back disability and a left leg disability are attributable to service. As noted above, the veteran has asserted that all of the disabilities at issue are due to his being physically assaulted during an in-service incarceration. As all claims stem from the same alleged incident during service, the Board will first discuss the basis for concluding that the preponderance of the evidence is against finding that the alleged in-service personal assault occurred. In this case, although the record reflects that the veteran was incarcerated during service, it indicates that it was for 20 days and for improperly taking valium, and not for 90 days and for sleeping on watch, as contended. In addition, the veteran has asserted that he sought treatment for the injuries he sustained in the incident, but review of the service medical records does not indicate that he sought such treatment. Further, much of the post-service medical evidence of record, to include the evidence dated more proximate to service, indicates that the veteran's back disability was due to post-service work injuries. Of note, in an August 1986 private record, the veteran reported that he never had any back problems during service. With respect to the claims for service connection for neck and leg disabilities, along with the alleged residuals of a back injury, the Board notes that the only relevant reference in the service medical records is the notation on the February 1982 report of medical history that the veteran's knees hurt when climbing stairs. The veteran, however, has not claimed that his knees continue to hurt in this fashion and there is no medical evidence of record that links a current knee disability to this finding in service. Rather, the veteran asserts that his injuries stem from his being physically assaulted while in the Navy brig. As the preponderance of the evidence indicates that this incident did not occur, the Board finds that the medical evidence that cites this incident as the etiology of the veteran's neck, back and left leg disabilities or lists the date of onset of the disabilities as 1980 is of no probative value. While much of the medical evidence of record points to post- service trauma as the source of the veteran's neck, back and leg problems, some treatment records dated in more recent years include the veteran's history that he was beaten in service or date the onset of neck, back and leg pain to his period of service. These records include a February 2004 VA treatment record in which the veteran recounted his being attacked while in the Navy brig. In a November 2004 private treatment record, the veteran was noted to have neck and back pain since 1980 and he was on active duty from March 1980 to March 1982. While such history was obtained more than 20 years after service, in Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005), the Court held that the VA and Board may not simply disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran. See also Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006). However, in Kowalski, the Court also cited its decisions in Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Reonal v. Brown, 5 Vet. App. 458, 461 (1993) in reaffirming that in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion. Such is the case here. As noted above, the veteran has provided inconsistent statements regarding his injuries and the onset of neck, back and leg pain. A clinician who examined the veteran in July 2005 specifically noted such inconsistency. There is nothing in the service medical or personnel records to suggest the alleged personal assault occurred, nor has the veteran submitted any corroborating evidence. On these bases, the Board finds that the preponderance of the evidence indicates that the veteran did not sustain the alleged injuries while in the brig. To the extent that some of the post-service medical evidence can be construed as indicating that the injuries and disabilities in question occurred or began during service, in view of the foregoing, the Board finds that such evidence is of no probative value as it is based on an inaccurate factual basis. As the preponderance of the evidence is against a nexus between current neck, back or left leg disabilities and any incident of service, to include the alleged personal assault, the Board finds that service connection for these disabilities is not warranted. Therefore, the benefit of the doubt doctrine is not applicable and the claims for service connection for neck, back and left leg disabilities must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Regarding the claim for service connection for PTSD, the Board notes that there is competent evidence of a diagnosis of PTSD, although the evidence is somewhat conflicting. The Board finds, however, that further consideration of whether the veteran has a confirmed PTSD diagnosis is not necessary. The primary impediment to a grant of service connection is that there is no evidence of record that corroborates the veteran's assertion that he was assaulted while in the Navy brig. As noted above, the service medical and personnel records show no such incident and the veteran's own statements on this matter have been inconsistent. Moreover, while there is evidence of behavior problems during service that necessitated disciplinary action, the Board notes that since the veteran has asserted that the incident that caused his psychiatric disorder occurred during his incarceration, the alleged assault was obviously after the onset of his performance problems. In the absence of verification of the only alleged in-service stressor, service connection for PTSD is not warranted. Therefore, the benefit of the doubt doctrine is not applicable and the claim for service connection for PTSD must be denied. See 38 U.S.C.A. § 5107(b); Ortiz, supra; Gilbert, supra. ORDER Service connection for PTSD is denied. Service connection for a neck disability is denied. Service connection for a back disability is denied. Service connection for a left leg disability is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs