Citation Nr: 1036615 Decision Date: 09/28/10 Archive Date: 10/05/10 DOCKET NO. 07-10 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Ogilvie, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1978 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by which the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, denied the Veteran's claim. In July 2010, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript is of record. The United States Court of Appeals for Veterans Claims (the Court) has held that VA should consider alternative psychiatric disorders within the scope of an initial claim for service connection for a specific psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, however, the Veteran has limited his claim to the issue of entitlement to service connection for PTSD. The Veteran has specifically noted that he is not requesting entitlement to service connection for all psychiatric symptomatology. Therefore, because the Veteran has clearly limited his current claim to only service connection for PTSD, and not for any other diagnosed psychiatric disorder, the Board's jurisdiction is limited. 38 U.S.C.A. § 7105 (West 2002). If the Veteran wishes to file a claim of entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder, he must file such a claim with the RO. FINDING OF FACT The Veteran does not currently have PTSD due to an independently verifiable in-service stressor. CONCLUSION OF LAW PTSD was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in correspondence dated in June 2004 of the information and evidence needed to substantiate and complete his claim. In March 2008, VA informed the Veteran of how disability evaluations and effective dates are assigned, and the claim was readjudicated in a February 2009 supplemental statement of the case. Hence, any prejudice caused by the timing of the notice provided was harmless. 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 in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). As the Veteran's claim is one for PTSD based on personal assault, VA must first advise the claimant that evidence from sources other than the appellant'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. See 38 C.F.R. § 3.304(f)(3). The Veteran was provided with this information in correspondence dated in December 2004. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim, including VA medical records and Social Security Administration records. The Board acknowledges that the Veteran has not been afforded a VA examination in response to his claim of entitlement to service connection for PTSD. The Board has determined, however, that VA has no obligation to provide examinations for that claim. Under the VCAA, when the record does not contain sufficient medical evidence to make a decision on the claim, VA is obliged to provide an examination when: (1) the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; and (2) the record indicates that the disability or signs and symptoms of a current disability may be associated with active service. 38 U.S.C.A. § 5103A(d). The Veteran does not meet these elements. In this regard, the Board notes that the Veteran's medical records do not indicate any competent, credible and corroborable evidence that PTSD may be associated with his active service. Thus, a VA examination is not in order. Paralyzed Veterans of America, et al. v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003). There is not a scintilla of evidence that any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, the appellant has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a Veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). Participation in combat, a determination that is to be made on a case-by-case basis, requires that a Veteran 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 VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or 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) (West 2002 & Supp. 2009); 38 C.F.R. 3.304(f)(1) (2009). Under the legal authority in effect at the time of the Veteran's claim, if the alleged stressor was not combat related, then the Veteran's lay testimony, alone, would not be sufficient to establish the occurrence of the alleged stressor; rather, corroborating evidence would be needed to support the claim for service connection. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997). Significantly, on July 13, 2010, VA published a final rule that amended its adjudication regulation governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. The revisions add to the types of claims the VA will accept through credible lay testimony alone, as being sufficient to establish the occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. 38 C.F.R. § 3.304(f) previously only authorized VA to accept statements from Veterans who served in combat, as denoted by combat-related awards or decorations or other evidence sufficient to establish participation in combat, as sufficient to establish the occurrence of the claimed in-service stressor. VA later amended 38 C.F.R. § 3.304(f) to also authorize VA to accept the statements of Veterans who are former prisoners-of-war, as well as those with an in-service diagnosis of posttraumatic stress disorder, as sufficient to establish occurrence of an in-service stressor if such statements are consistent with the places, types, and circumstances of service. The July 2010 amendment of 38 CFR § 3.304(f) eliminates the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The new regulatory provision requires that a VA psychiatrist or psychologist, or VA contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and that the Veteran's symptoms are related to the claimed stressor. Significantly, the amendment, in pertinent part, has no impact on posttraumatic stress disorder claims that arise out of stressors claimed due to a personal assault. In this case, the Veteran has not alleged, and the evidence does not suggest, that he engaged in combat with the enemy or that his alleged stressor was combat related. The Veteran alleges that he was subject to personal assault during active duty service. As such, the changes in regulations do not apply to the Veteran. The present case falls within the category of situations, to include allegations of sexual assault, in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran alleges. See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999). As noted under Paragraph 5.14(d), Part III, of VA's Adjudication Procedure Manual, M21-1, personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking. Id. Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault. See YR v. West, 11 Vet. App. 393, 399 (1998). The Manual also notes that since personal assault, to include sexual assault, can be an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, making it difficult to obtain direct evidence, and requiring that the alternative evidence be sought. Id. Under 38 C.F.R. § 3.304(f)(3), if a PTSD claim is based on in- service personal assault, evidence from sources other than the Veteran's service records may corroborate the 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) (2009). [Parenthetically, the Board notes that the provisions of 38 C.F.R. § 3.304(f)(3) mirror those provisions of VA's Adjudication Procedural Manual, M21-1, Part III, 5.14(d) regarding substantiating personal assault claims. The M21-1 Part III, 5.14(d) lists the same alternative sources of evidence as are listed at 38 C.F.R. § 3.304(f)(3).] Analysis The Board has reviewed all the evidence in the Veteran's claims file, which includes his written contentions, service treatment records, Social Security Administration records, and VA medical records. Although this Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The evidence of record reflects that the Veteran has been diagnosed with PTSD. See, e.g., March 2004 VA Medical Center treatment record. The Veteran has asserted that during service, he was sexually assaulted by other Marines. He alleges that he has been suffering from PTSD since the incident. See March 2005 statement by the Veteran's attorney (noting that the appellant had been suffering from PTSD for over 20 years). Service treatment records are silent for any incident of sexual trauma. The Veteran insisted that he was treated for psychiatric problems during service, but a request for psychiatric treatment records resulted in no records of psychiatric treatment. In January 1980, the Veteran was hospitalized for impacted wisdom teeth. The dentist also noted a disposition diagnosis of schizoid personality disorder. All treatment records pertaining to his hospitalization are silent for any further mention of a psychiatric disorder or psychiatric treatment. The Veteran was returned to full duty three days later. The Veteran served the full length of his enlistment and was honorably discharged. He was awarded a Meritorious Mast during his service. The Veteran filed his current claim for service connection in May 2004. Before filing his claim for service connection, the Veteran was seen on various occasions for symptomatology associated with an attention deficit disorder and anxiety. The Veteran attributed his anxiety to financial problems and legal issues stemming from his inability to pay child support. In February and March 2004, the Veteran was seen by VA mental health services. He described receiving a legal notice that he must go to jail for six months for non-payment of child support. The Veteran was very upset and distressed by the notice. At his next appointment, the Veteran indicated that he would like to discuss something with his psychiatrist at the next appointment that happened to him in the military, "which he recently remembered after talking with another vet[eran]." At the following appointment, the Veteran stated that he had been sexually assaulted in the military. He reported daily, intrusive thoughts, occasional nightmares, insomnia, and a desire to socially isolate. He also endorsed hypervigilance and episodes with probable dissociation which interfered significantly with his ability to focus and maintain a job. The Veteran was diagnosed with PTSD, major depressive episode with anxious features, and Attention Deficit Disorder, by history. In May 2004, the Veteran specifically denied experiencing military sexual trauma. Later that month, the Veteran called the VA Medical Center and was very angry and verbally abusive on the phone. He was upset about previous documentation of trauma in the military, and he again denied a history of in-service sexual trauma. In October 2004, VA initiated a fraud investigation into the Veteran. Allegations against the Veteran indicated that he had gained employment under an alias, used a false driver's license and a fraudulent Social Security number. He was additionally investigated by American Express for credit fraud related to a false Social Security number. Criminal charges were subsequently filed by a local police department. The Veteran also applied for welfare (food stamp) benefits in his city. The benefit was granted based on the Veteran's own statements that he was homeless and could not support himself. Once a social services officer investigated the situation, she discovered that the Veteran was lying. His benefits were thereafter revoked and further investigation was performed. Finally, the Veteran applied for a pilot's license in May 2001 and May 2003, where he denied a history of mental disorders of any sort, to include depression and anxiety. In May 2007 and July 2008, a VA health scientist submitted letters on the Veteran's behalf. The health scientist reported treating the Veteran since 2004 for military sexual trauma. She explained that the Veteran had been consistent in the details about the assault, and she believed that the trauma had occurred based on her knowledge as a therapist who treated military sexual trauma in men. She noted that the pattern of symptoms that the Veteran exhibited were consistent with a person who was a victim of sexual assault. The symptoms included isolation, guilt, feelings of shame, irritability, anger, multiple job history, difficulty in keeping relationships, distrust of others, hyper- vigilance, anxiety, sleep problems, intrusive thoughts and images, lack of concentration, and co-morbid depression. The health scientist noted that the Veteran failed to complete his duties satisfactorily in service, and as a result, received a general discharge. The health scientist stated that a general discharge itself was evidence that the Veteran did not perform up to standard in service, which indicated a behavioral shift after his alleged sexual assault. She also explained that she believed the diagnosis of schizoid personality disorder was compatible and indicative of behaviors and symptoms now reflected in a diagnosis of posttraumatic stress disorder. Thus, she opined that the Veteran was misdiagnosed in the military as having schizoid personality disorder, and he really was suffering from posttraumatic stress disorder in service. The health scientist stated that the Veteran had nothing to gain by coming forth with this claim; therefore, she implied that he should be considered truthful. She believed the Veteran's case was genuine, and he deserved compensation. The health scientist also indicated that she had no doubt that the Veteran's current diagnosis of posttraumatic stress disorder was due to his military sexual assault in service. She noted that under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV), no accurate diagnosis of schizoid personality disorder could be currently made for the Veteran. Instead, she reiterated her belief that the Veteran was inaccurately diagnosed during active duty. In May 2009, the Federal Aviation Administration initiated an investigation into the Veteran, noting that he failed to disclose information of any psychiatric diagnosis on his October 2008 Application for Airman Medical Certificate, which was material to the medical certification process. A false Social Security number was also listed for the Veteran. In July 2009, the Inspector General of the Department of Transportation contacted VA about the fraudulent statement on the Veteran's application and requested information pertaining to any claims for mental disorders. After carefully considering all the evidence of record, with special attention to the Veteran's statements and the VA health scientist's opinions, the Board finds that the appellant's account of being a victim of an in-service sexual assault is simply not credible. The various allegations of fraud, the Veteran's untruthful statements about his purported posttraumatic stress disorder symptoms, his continuous denial of mental problems on Federal forms, and his mischaracterization of his discharge all severely damage his credibility. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds that the Veteran's credibility is substantially undermined by the fact that he did not claim to have been sexually assaulted or be suffering from PTSD symptomatology until after he was facing possible jail time for nonpayment of child support. Until that time, the Veteran only reported symptoms of an attention deficit disorder and anxiety. There were no reports of characteristic PSTD symptomatology, such as nightmares, hypervigilance, social isolation, or intrusive thoughts. Rather, the Veteran's anxiety was related to his legal troubles. Even after the Veteran first reported being the victim sexual assault, he subsequently denied being the victim of military sexual assault on two occasions approximately one month later. This inconsistency further damages his credibility. The Board assigns de minimus probative weight to the health scientist's determination that the Veteran suffered from PTSD based on his sexual assault. Any medical opinion based upon an incredible history reported by the Veteran cannot be given any probative weight. Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) ("reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran"); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (stating that the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been rejected by the Board); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (noting that a medical opinion premised upon an unsubstantiated account is of no probative value and does not serve to verify the occurrences described). The Veteran reported to the treating health scientist that after his sexual assault he failed to discharge his duties satisfactorily, and he was given a general discharge for his change in behavior. This is completely untrue. Indeed, the Veteran's personnel records reflect that he was discharged honorably after serving the full enlistment period. The numerous allegations of fraud against the Veteran, to include continuous denials on Federal forms that he was not suffering from a mental disorder of any sort, weigh heavily against his credibility. The Veteran has a character of submitting untruthful statements for monetary gain, to include in furtherance of Social Security, credit, and welfare fraud. To grant service connection for posttraumatic stress disorder requires medical evidence establishing a diagnosis of the disorder; credible supporting evidence that the claimed in- service stressor occurred; and, a link established by medical evidence, between current symptoms and an in-service stressor. Although the medical evidence of record reflects a current diagnosis of posttraumatic stress disorder, as well May 2007 and July 2008 VA medical statements attributing posttraumatic stress disorder to his in-service sexual assault, the current diagnosis is based on the incredible stressor event claimed by the Veteran. The fact that the health scientist partially relied on the Veteran's claim that he received a general discharge due to behavioral change, as well as his claims of continuous PTSD symptomatology since the incident (claimed as a misdiagnosis of schizoid personality disorder) reflect that the health scientist failed to fully review all the evidence, and based her opinion on evidence of record that is clearly lacking credibility. The health scientist opined that the Veteran was hiding his feelings of his sexual assault because of the negative stigma toward sexual assault victims. The VA treatment records reflect otherwise. A review of the claims file reveals that the Veteran did not report sexual assault or any type of relevant PTSD symptomatology until after he was threatened with jail time for failing to properly pay child support. Further, the Veteran told a VA psychiatrist in March 2004 that he "just happened" to "recently remember" an incident that happened to him in the military. Despite this, the Veteran's attorney argued to the Social Security Administration in March 2005 that the appellant had a history of PTSD symptomatology for over 20 years. The treatment records reflect, however, that the Veteran has not suffered from daily intrusive thoughts or nightmares since the incident, as he reported, and he did not seem to even remember the incident until he happened to be talking to another veteran in 2004. Thus, the record contains internally conflicting statements about the history of the Veteran's PTSD symptomatology. The Board assigns greater probative value to the medical history provided prior to the time when the Veteran was facing jail time for being in arrears with child support payments because it was given for the purpose of treatment in the absence of a pecuniary interest. See Caluza, 7 Vet. App. 498. Simply put, the health scientist, however, relied on statements which lack credibility. The health scientist also assessed the Veteran's credibility by determining that he had nothing to gain by coming forth with his claim. In truth, the Veteran has a great deal of monetary compensation to gain with this claim. He has a history of fraudulent applications for monetary gain. Therefore, the Board affords de minimus probative weight to the health scientist's opinions, as they were not based on the facts of record, and instead based upon the Veteran's own incredible and untrue statements. As such, because the diagnosis rests on a stressor which cannot be verified, it fails to satisfy the criteria noted above for a valid PTSD diagnosis for VA purposes. See 38 C.F.R. § 3.304(f). The determination regarding credibility of the appellant is within the Board's purview, not that of the examiner. See Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility is determined by the fact finder). The Board has considered the Veteran's assertions that his claimed PTSD is attributable to service, however, as a lay person without the appropriate medical training and expertise, he simply is not competent to provide a probative opinion on a medical matter, to include the diagnosis of a specific disability. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board finds the Veteran's purported in-service stressor has not been verified. Hence, there is no verified stressor present upon which a valid diagnosis of PTSD may be based. As such, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for PTSD. The appeal is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs