Citation Nr: 1120790 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 07-21 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Penelope Gronbeck, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 15, 1977 to June 30, 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affair (VA) Regional Office (RO) in Togus, Maine. In May 2009, the Board denied the Veteran's claim for service connection for PTSD and for a personality disorder. Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an order issued in October 2009, the Court granted a Joint Motion for Remand and partially vacated the Board's May 2009 decision with respect to the claim for service connection for PTSD. The case was thereafter returned to the Board. In June 2010, the Board remanded the case for additional development, namely to schedule the Veteran for a videoconference hearing. In September 2010, the Veteran testified during a videoconference Board hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. The case has returned to the Board for further appellate action. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. PTSD was not manifested in service, and there is no competent medical evidence otherwise linking this disability to any incident of service, including any alleged sexual assault therein. CONCLUSION OF LAW PTSD was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304(f) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a July 2007 pre-rating letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. This letter included general notice pertaining to VA's assignment of disability ratings and effective dates (in the event service connection is granted). The March 2008 RO rating decision reflects the initial adjudication of the claim after issuance of the July 2007 letter. The Board notes that the Veteran was not provided with notice specific to claims of service connection for PTSD based upon personal assault-that is, notice explaining alternative ways to substantiate a stressor based on personal assault, until June 2010, after the initial adjudication of the claim. However, the record reflects that the Veteran was given ample opportunity to respond and provide additional evidence. In January 2011, the Veteran's representative submitted a statement indicating that the Veteran did not have any additional evidence and advising the Board to proceed with a decision. Therefore, the Board finds that the Veteran has not been prejudiced by the timing of this latter notice. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records ,VA and private treatment records, Social Security Administration (SSA) records, and the report of a January 2009 VA examination. Also of record and considered in connection with the appeal is the Veteran's September 2010 Board hearing testimony and various written statements provided by the Veteran, family members and his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b). Service connection shall be granted to a Veteran if the Veteran served 90 days or more during a war period or after December 31, 1946 or had peacetime service on or after January 1, 1947, and certain chronic diseases, including psychoses, although not otherwise established as incurred in or aggravated by service, become manifest to a compensable degree within one year following the requisite service. See 38 C.F.R. §§ 3.307, 3.309 (2010). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a 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 present disease or injury. See Hickson v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; 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. If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records that document behavior changes following the claimed assault may corroborate the veteran's account of the stressor incident. See 38 C.F.R. § 3.304(f)(3) (2010). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case and with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or contradiction in the evidence. See 38 C.F.R. § 3.102 (2010). Factual Background and Analysis Service records do not show, nor does the Veteran allege, that he engaged in combat or that he was diagnosed with PTSD during service. Rather, the Veteran alleges that he was the victim of a sexual assault during his short time in the service, and that this incident led to the development of PTSD. The Veteran's service treatment records and personnel records indicated that he served on active duty for a total of approximately 2 weeks in June 1977. These records note that he had been assigned to Recruit Training Command for approximately 5 days when he gave a history of emotional instability. He had been referred for psychiatric evaluation after he reported to his commanding office that he was frightened of shots and refused to take any injections. The commander noted that the Veteran was hysterical and ran out of the building. He was caught trying to climb a fence. It was subsequently determined that the Veteran had not yet achieved a degree of maturity or stability commensurate with the demands required of recruit training. He was a poor retention risk. He was discharged shortly thereafter because of unsuitability due to a personality disorder. In June 2006, the Veteran submitted a statement from his mother indicating that he had been sexually abused by a relative when he was 6 years old. Other statements from family members described the Veteran's current behavior and how he had changed from the time when he was young. VA outpatient treatment records from 2006 reflect the Veteran's psychiatric complaints. In August 2006, the Veteran claimed that he thought he had PTSD from his childhood. In September 2006, he noted that being in the Navy reminded him of sexual trauma that occurred from ages 4 through 7. He indicated that he was sexually abused during childhood by his grandfather, but was not abused during service. A diagnosis of alcohol abuse and dysthmia was noted. In December 2006, the Veteran told a treating social worker other service members teased him during his training, and told him he was going to get some sort of operation, but they did not actually do anything to him. He felt that this caused him to be traumatized. The social worker's reported reflects that she explained to the Veteran that what he experienced in service was more like teasing than trauma. She noted that it seemed as if the Veteran was pushing for her to say that all of his problems stemmed from service. In June 2007, the Veteran reported that he had experienced military sexual trauma, in that bullies had threatened him with a circumcision. He said that he was grabbed but nothing was actually done to him. During the interview portion of the VA PTSD assessment process, he related that during boot camp, he was the victim of a sexually-oriented assault that was so distressing for him that he was sent to an inpatient unit. Following VA-administered testing, it was noted that the Veteran met the criteria for a PTSD diagnosis. SSA records reflect that the Veteran is in receipt of disability benefits with a primary diagnosis of carpal tunnel syndrome and secondary diagnosis of disorders of the muscle, ligaments, and fascia. These records contain a January 2008 psychologist report noting that upon a review of the VA medical records, there were important inconsistencies in the Veteran's medical records regarding his psychiatric disability. The psychologist who reviewed the records noted that the inconsistencies in the evidence tended to reduce the credibility of the Veteran's allegations. On VA psychiatric examination in January 2009, the Veteran stated that he had been abused by a relative during his childhood. He also claimed that during training in service, he was ordered to get certain injections, but was separated from others, taken to an indoor pool, and made to take off his clothing--following which he was poked and prodded in the genitalia. The Veteran said that he escaped from his assailants, though he did not recall how he managed to get his clothes back on. He indicated that he was caught trying to climb a fence and returned to the barracks. After a review of the record and psychiatric evaluation, the psychiatrist found that the Veteran clearly had childhood sexual trauma which resulted in his feeling much victimized and in danger. Accordingly, the examiner found that the first criteria for PTSD had been met. It was also noted that the Veteran experienced nightmares in which he reexperienced his trauma. Moreover, he experienced persistent avoidance symptoms with regard to places which reminded him of his trauma, such as swimming pools, malls, and restaurants. In addition, it was noted that the Veteran had an inability to recall certain aspects of his trauma, a restricted affect, increased arousal, irritability, hypervigilance, and sleeping difficulties. Diagnoses of PTSD and personality disorder were assigned. The psychiatrist noted that it was difficult to determine whether the alleged in-service trauma actually occurred, in that the records showed that the Veteran had previously denied any military sexual trauma, though this could have been due to repression of memory, which the examiner pointed out was more likely in children than adults. The examiner also indicated that the Veteran was very vague about details and specifics, leading her to think that there was some kind of confabulation. Noted at the time of examination was that a Social Security examiner had found numerous inconsistencies in the Veteran's report, though suppression of memory was not out of the question, as were memory problems due to alcohol. According to the examiner, there was a 50-50 change that a sexually-related assault during military service had actually occurred. While the examiner indicated that she could not resolve whether the Veteran's PTSD was related to an in-service assault without result to speculation, she also indicated that in her opinion, the Veteran's childhood abuse and chaotic upbringing is the most likely etiology of the Veteran's PTSD. During the Veteran's September 2010 Board hearing, he again testified that he had been molested by his grandfather as a child, but experienced a sexual assault during training in service. He indicated that he was poked and prodded in the genitals by other service members, who also wanted him to take of all of his clothes. He reported that he fled the area, climbed over a fence, went to a convenience store, and later returned. He indicated that he was too embarrassed to tell his commander the actual story, so he instead told him that he did not want to get shots. He noted that he was discharged shortly thereafter, and has experienced emotional problems since his discharge from service. As mentioned above, to establish service connection for PTSD, three criteria must be satisfied. First, there must be competent medical evidence of a diagnosis of PTSD. Second, there must be a link, established by medical evidence, between current symptoms and an in-service stressor. Third, there must be and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). The Board notes that respect to the first criterion, the objective medical evidence of record indicates that the Veteran has a clinical diagnosis of PTSD. In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court noted that diagnoses of PTSD are presumably in accordance with DSM-IV, both in terms of the adequacy and sufficiency of the stressors claimed. Therefore, the Board finds that the Veteran has the required current DSM-IV diagnosis of PTSD. However, with respect to the claimed stressor of an in-service sexual assault, the evidence outlined above makes clear that the Veteran cannot be regarded as a reliable historian, and his service personnel records as well as post-service VA records and examination not only show internal inconsistencies in statements made by the Veteran, they also show that the Veteran is not credible. VA outpatient treatment records following service indicate that the Veteran initially denied any in-service sexual trauma. When the Veteran did claim that he experienced an in-service sexual assault, his accounts regarding the alleged sexual trauma were inconsistent and varied. In one account, the Veteran reported that the perpetrators threatened circumcision and groped him. In another account, the Veteran reported that he was teased by fellow service members about an operation, but they did not do anything. During the 2009 VA examination, the Veteran reported that he was taken to an indoor pool, made to take off his clothing, following which he was poked and prodded in the genitalia. He indicated that he tried to climb a fence to escape, but was caught. During the Veteran's Board hearing, he reported that after the alleged incident he was able to climb the fence and escaped for a short time, but later returned. The Veteran's account of the alleged assault is not only inconsistent, but also clearly does not match the description of the incident as contained in service treatment records, which document his intense fear and hysterical reaction to the prospect of being given an injection and attempt to flee. In addition, the December 2006 social worker report notes that she suspected the Veteran was trying to convince her to say that his problems were service-related. The January 2009 VA examiner also suspected the Veteran of confabulation. The Veteran has not submitted any other evidence that tends corroborate his account of the stressor incident. See 38 C.F.R. § 3.304(f)(3). Although the VA examiner found that it was "50-50" as to whether the alleged sexual assault actually occurred, which tends to support a finding that the Veteran experience sexual trauma in service, the Board gives greater weight of probative value to the many inconsistencies in the Veteran's statements regarding the alleged assault after service, including in conjunction with medical treatment after service. Although credibility is often defined as determined by the demeanor of a witness, a document may also be credible evidence. . . . In determining whether documents [are credible] a VA adjudicator may properly consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the veteran." Caluza v. Brown, 7 Vet.App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Veteran's many statements are so blatantly inconsistent that he simply cannot be believed. Moreover, medical treatment records in the file show no mention of his alleged assault until 2006, shortly before the Veteran's claim for service connection for PTSD. Cf. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]. However, even if the Board were to accept that the in-service stressor occurred, the Veteran's claim for PTSD would still fail on the basis that there is no link, established by medical evidence, between current symptoms and an in-service stressor. The January 2009 VA examiner, after a complete review of the Veteran's claims file and psychiatric evaluation, found it more likely than not that the cause of the Veteran's PTSD was his childhood sexual trauma and chaotic upbringing. Hence, the only competent, probative opinion to address the question of medical etiology weighs against the claim. There is no contrary opinion of record. In addition to the medical evidence, the Board has considered the assertions advanced by the Veteran and his representative in connection with the appeal. The Board does not doubt the sincerity of the Veteran's belief that he has PTSD as a result of events during military service. However, questions of medical diagnosis and causation are within the province of medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is a layperson without the appropriate medical training or expertise, he is not competent to render a probative (i.e., persuasive) opinion on such a medical matter. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Consequently, the lay assertions as to the nature, onset, or etiology of his claimed psychiatric disability have no probative value. For all the foregoing reasons, the claim for service connection for PTSD must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Service connection for PTSD is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs