Citation Nr: 1115566	
Decision Date: 04/20/11    Archive Date: 05/04/11

DOCKET NO.  05-14 571	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include bipolar disorder and obsessive compulsive disorder.

3.  Entitlement to service connection for a disability characterized by obesity or an eating disorder, including as secondary to a psychiatric disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The Veteran had active service from September 1994 to January 1996.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In August 2007 and in October 2009, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development.  A review of the claims file shows that there has been substantial compliance with the Board's remand directives.

The Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence.  The medical evidence indicates that the Veteran has been diagnosed as having bipolar disorder and obsessive compulsive disorder.  Thus, the claims of service connection for PTSD and for an acquired psychiatric disability other than PTSD, to include bipolar disorder and obsessive compulsive disorder, are as stated on the title page of this decision.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran has not reported consistently the in-service stressors which, in his view, led him to develop PTSD after service.

2.  The Veteran's claimed in-service stressors also have not been corroborated by any of his post-service VA treating physicians during a VA examination or on VA outpatient treatment.

3.  The competent evidence does not contain a diagnosis of PTSD based on a corroborated in-service stressor.

4.  The competent evidence does not show that an acquired psychiatric disability other than PTSD, to include bipolar disorder and obsessive compulsive disorder, existed prior to service and was aggravated by active service.

5.  The competent evidence shows that the Veteran does not experience any current disability due to obesity or an eating disorder which could be attributed to active service; the Veteran's claimed disability characterized by obesity or an eating disorder also was not caused or aggravated by a psychiatric disability.


CONCLUSIONS OF LAW

1.  PTSD was not incurred or aggravated in service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010).

2.  An acquired psychiatric disability other than PTSD, to include bipolar disorder and obsessive compulsive disorder, was not incurred or aggravated in service.  38 U.S.C.A. §§ 1110, 1112, 1132, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310 (2010).

3.  A disability characterized by obesity or an eating disorder was not incurred in service and was not caused or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2010).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.

In letters issued in May and July 2004, January and March 2005, August 2007, May 2009, and in April 2010, VA notified the appellant of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  These letters informed the appellant to submit medical evidence relating the claimed disabilities to active service and noted other types of evidence the Veteran could submit in support of his claims.  The Veteran also was informed of when and where to send the evidence.  After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

As will be explained below in greater detail, the preponderance of the evidence is against granting service connection for PTSD, an acquired psychiatric disability other than PTSD, to include bipolar disorder and obsessive compulsive disorder, or for a disability characterized by obesity or an eating disorder, including as secondary to a psychiatric disability.  Because the Veteran was fully informed of the evidence needed to substantiate his claims, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Additional notice of the five elements of a service-connection claim was provided in the August 2007, May 2009, and April 2010 VCAA notice letters, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Here, the May and July 2004 VCAA notice letters were issued prior to the November 2004 rating decision which denied the benefits sought on appeal; thus, this notice was timely.  Because all of the appellant's claims are being denied in this decision, any question as to the appropriate disability rating or effective date is moot.  See Dingess, 19 Vet. App. at 473.

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so.  It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.  The Veteran's complete Social Security Administration (SSA) records also have been obtained and associated with his claims file.

The Veteran has contended that he was treated by Abraham J. Katz, M.D., for his claimed disabilities.  VA sent the Veteran a letter in April 2008 requesting that he complete a medical records release form so that his complete treatment records could be obtained from Dr. Katz.  The Veteran did not respond.  Pursuant to the Board's October 2009 remand, VA sent the Veteran another letter in April 2010 requesting that he identify all VA and non-VA clinicians (including Dr. Katz) who had treated him for his claimed disabilities.  The Veteran again did not respond.

As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim.  An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) ; McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The Veteran has been provided with VA examinations which address the contended causal relationship between the claimed disabilities and active service.  As will be explained below in greater detail, there is no competent evidence of an in-service stressor.  Service connection for PTSD cannot be granted in the absence of an in-service stressor and an after-the-fact medical opinion cannot serve as the basis for corroboration of an in-service stressor.  See Moreau v. Brown, 9 Vet. App. 389 (1996).   The Veteran's claimed in-service stressors also have not been corroborated by any of his post-service VA treating physicians during a VA examination or on VA outpatient treatment.  See 38 C.F.R. § 3.304(f) (effective July 13, 2010).  His alleged in-service stressors also are incapable of corroboration by the Joint Services Records Research Center (JSRRC).  The Veteran further has not reported consistently which of his alleged in-service stressors caused him to experience PTSD.  The inconsistencies in the record regarding the Veteran's alleged in-service stressors undercut the probative value of his statements concerning these alleged in-service incidents.  There is no competent evidence, other than the Veteran's statements, which indicates that his claimed PTSD, an acquired psychiatric disability other than PTSD, to include bipolar disorder and obsessive compulsive disorder, or a disability characterized by obesity or an eating disorder may be associated with service.  The Veteran is not competent to testify as to etiology of any of these disabilities as they require medical expertise to diagnose.  Thus, the Board finds that another examination is not required even under the low threshold of McLendon.  In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.

The Veteran contends that he incurred PTSD, an acquired psychiatric disability other than PTSD, to include bipolar disorder and obsessive compulsive disorder, and a disability characterized by obesity or an eating disorder during active service.  He alternatively contends that his psychiatric disability/ies caused or aggravated (permanently worsened) a disability characterized by obesity or an eating disorder.  He also has alleged that his PTSD resulted from an in-service personal and/or sexual assault.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Additionally, service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; 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 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 C.F.R. § 3.304(f).  See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat Veterans).

If, however, 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.  Examples of such evidence include, but are not limited to, statements from family members, and evidence of behavior changes following the claimed assault.  38 C.F.R. § 3.304(f)(3).  In Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to personal assault PTSD claims.  In particular, the Court held in Patton that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault, are substantive rules which are the equivalent of VA regulations and must be considered.  See also YR v. West, 11 Vet. App. 393, 398-99 (1998).  The Board notes that M21-1, Part III, Chapter 5, has been rescinded and replaced, in relevant part, by M21-1MR, Part III, Subpart iv, Chapter 4, Section H30.  See generally M21-1MR, Part III, Subpart iv, Chapter 4, Section H30.

These M21-1MR provisions on personal assault PTSD claims require that, in cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence.  As to personal assault PTSD claims, more particular requirements are established regarding the development of "alternative sources" of information as service records may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities.  See M21-1MR, Part III, Subpart iv, Chapter 4, Section H30b.  Further, the relevant provisions of M21-1MR indicate that behavior changes that occurred around the time of the incident may indicate the occurrence of an in-service stressor and that "[s]econdary evidence may need interpretation by a clinician, especially if the claim involves behavior changes" and "[e]vidence that documents behavior changes may require interpretation in relation to the medical diagnosis by a neuropsychiatric physician".  See M21-1MR, Part III, Subpart iv, Chapter 4, Section H30c.  The Board remanded the Veteran's appeal in October 2009 in order to ensure compliance with the procedures for developing personal assault PTSD claims.  As noted elsewhere, there has been substantial compliance with the Board's remand instructions.  The Veteran was provided with VCAA notice specific to his PTSD personal assault claim in an April 2010 letter from VA.

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim.  See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology.  See Savage, 10 Vet. App. at 495-498.

A Veteran will be presumed to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 U.S.C.A. §§ 1112, 1132; 38 C.F.R. § 3.304.

For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b).

Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat Veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened.  Davis v. Principi, 276 F. 3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991).

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.  Reasonable doubt is 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.

PTSD

The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for PTSD.  A review of the Veteran's service treatment records shows that he was not treated for or diagnosed as having PTSD at any time during active service.  The Veteran reported on a medical history form completed as part of a periodic physical examination in October 1995, approximately 3 months prior to his separation from service in January 1996, that he had attempted suicide although he had not been successful.  The Veteran's psychiatric system was found to be clinically normal.  The Veteran submitted a completed PTSD Questionnaire with information concerning his alleged in-service personal assault to the RO in August 2004.  The Veteran provided additional information concerning his alleged in-service personal assault in a September 2007 statement.  Pursuant to the Board's October 2009 remand, the RO also sent the Veteran a letter requesting that he provide additional information concerning his alleged in-service personal assault, including a PTSD Questionnaire for personal assault PTSD claims.  The Veteran responded with a detailed statement regarding his alleged in-service personal assault in February 2011.  A review of the February 2011 letter indicates that it is duplicative of the Veteran's earlier statements regarding what had happened to him during service.  Thus, it appears that the appropriate development for PTSD personal assault claims occurred in this case.  Id.  

The Board finds that the Veteran's statements concerning an alleged in-service personal assault are not credible because he has not reported consistently the facts and circumstances surrounding this alleged in-service incident.  The Veteran has submitted multiple conflicting statements during the pendency of this appeal concerning his alleged in-service stressors in which he has contended that he was physically and/or sexually assaulted just prior to his separation from active service.  He also has contended that he was subjected to verbal harassment by fellow soldiers and others in his chain of command during service and this verbal harassment constituted his in-service stressor.  For example, the Veteran alleged in June 2002 that he "was subject to severe verbal and mental maltreatment for personal belief[s] and lifestyle" during active service.  He dated these alleged in-service incidents to April and May 1995.  The Veteran only asserted in March and April 2004 statements that he had experienced a mental breakdown during active service, however, and did not identify any alleged in-service stressors.  In a May 2004 statement, he alleged that, during active service, "[his] fellow soldiers would disguise themselves with masks and tie me up, abuse me, cut my arms, broke my nose, deprived me of food and water, deprived me of sleep, violated my body, and many more actions."  He subsequently alleged in a detailed statement received by the RO in June 2004 that he was assaulted repeatedly by soldiers wearing masks on the day before his separation from active service in January 1996.  In a September 2007 statement, the Veteran contended that he had been falsely accused of being a homosexual while on active service and was subjected to severe harassment by his fellow soldiers as a result of this false accusation.  He contended that he had been subjected to "harsh verbal abuse and placed in a barracks all to myself because no one would have any contact with me."  He asserted that his life had been threatened by several of his fellow soldiers.  The Veteran again reported that, on the day before his separation from active service, he was physically and sexually assaulted and his nose was broken by other soldiers.

The Board notes that the Veteran's service personnel records do not support his (inconsistently reported) statements concerning his alleged in-service personal assault and/or his other alleged in-service stressors.  Following his discharge from active service in January 1996, the Veteran attempted to get his other than honorable discharge upgraded by filing an appeal with the U.S. Army Board for Correction of Military Records (BCMR).  When he filed his request for an upgraded discharge with the BCMR in June 1996, the Veteran stated that his original dishonorable discharge had been unjust because "the battalion commander did not research past history and circumstances in behalf [sic]."  The Veteran attached a 4-page letter to his request for an upgraded discharge and provided the reasons which he felt justified this request.  He stated in his June 1996 letter that, after he had been refused permission by his chain of command to attend classes at the University of Texas, El Paso, he had written a complaint letter about this refusal to his congressional representative.  He was then reassigned to "guarding trash cans" when his commanding officer found out about his letter, transferred involuntarily to another unit, reduced in rank, and then dishonorably discharged from service.  The Veteran subsequently withdrew his initial appeal for an upgraded discharge by submitting another handwritten letter which was received by the U.S. Army Reserve Personnel Center in September 1996 and forwarded to the BCMR in February 1997.  A review of this letter indicates that the Veteran wanted to withdraw his appeal for an upgraded discharge because he had been reminded of why he had accepted a dishonorable discharge from active service in the first place and did not want to be mistreated again as he had been mistreated during service.  He identified himself in this letter requesting that his BCMR appeal be withdrawn as a "problem soldier" and stated that it had been a "mistake to join the military."  He complained at length in this letter about his alleged mistreatment by his chain of command during service but did not mention any in-service stressors or personal assault.  In light of the Veteran's request that his appeal for an upgraded discharge be withdrawn, the BCMR returned his appeal to him in March 1998 without taking any action on it.  The Board notes parenthetically that, after the Veteran filed another appeal for an upgraded discharge, the BCMR in January 2003 upgraded the characterization of the Veteran's discharge from active service to general, under honorable conditions, and directed that the Veteran be issued a new DD Form 214 reflecting his upgraded discharge.

The Board notes that there is a copy of an "Emergency Care And Treatment (Medical Record)" dated on January 15, 1996, indicating that the Veteran complained of being "physically assaulted and violated by unknown assailants wearing masks."  The Veteran refused treatment at a military facility.  The in-service examiner stated that the Veteran was being escorted by military policemen (MP's) to the nearest "ER civilian hospital."  It was noted that the Veteran had "lacceracions" on his face, arms, and neck,  bruises in his "adomminal" region, and "servere" physical and mental trauma.  This service treatment record was received from the Veteran by the AMC in September 2007.  A review of this emergency room (ER) record indicates that it may have been altered from its original form and/or forged.  First, the Board notes that there is no original copy of this ER record anywhere in the Veteran's service treatment records or his service personnel records.  Nor is there any reference to this alleged ER treatment in the Veteran's available service treatment records or service personnel records.  Second, the Board finds it significant that the in-service examiner who allegedly treated the Veteran on January 15, 1996, and completed this standard treatment form misspelled multiple common medical terms such as the words lacerations, abdominal, and severe.  The Board also notes that other common non-medical words are misspelled in this ER treatment record.  Third, it appears that parts of this ER record were written over other entries in the Veteran's service treatment records.  Given the foregoing, the Board concludes that this evidence is less than credible in supporting the Veteran's assertion of an in-service physical and/or sexual assault on the day before his separation from active service.

The competent evidence also does not support the Veteran's (inconsistently reported) statements concerning his alleged in-service personal assault and/or his other alleged in-service stressors.  The Board observes in this regard that, while being treated for multiple psychiatric problems at a VA domiciliary in July 2001, the Veteran was asked by his VA treating physicians whether he had experienced sexual trauma and he denied ever experiencing any sexual trauma.  He also reported in July 2001 while being housed at a VA domiciliary that his only in-service trauma was breaking his nose when he banged his head against a locker while waiting for chow.  The Veteran's July 2001 statement regarding how his nose was broken during active service directly contradicts his May 2004 and September 2007 statements in which he asserted that other soldiers had broken his nose when they had assaulted him on the day before his separation from active service in January 1996.  A Discharge Summary completed in October 2001 when the Veteran was discharged from the VA domiciliary after being treated there since July 2001 again indicates that the Veteran's only reported in-service trauma was breaking his nose.  The Veteran's assertion that his nose was broken in service also is not supported by a review of his available service treatment records which show no complaints of or treatment for a broken nose at any time during active service, including in the ER record dated in January 1996 (which may be a forgery, as discussed above).  When asked by a VA treating physician to describe his military history on outpatient treatment in August 2002, the Veteran reported only that his time in the service "was a bad experience and that he developed a strong prejudice against 'Blacks.'"  No in-service personal assault was reported in August 2002.  The VA examiner who saw the Veteran for VA examination in July 2010 noted that a review of his service treatment records showed that the Veteran had been treated for a physical assault on January 15, 1996, and no sexual assault was mentioned by the Veteran or treated by the physician who saw him at that time.  The VA examiner also noted in July 2010 that there was no allegation of in-service sexual trauma until 2004, or more than 8 years after the Veteran's service separation.  Although the Board recognizes the extremely sensitive nature of PTSD claims based on in-service personal assault, given the Veteran's inconsistent statements to VA, to the BCMR, and to his post-service treating physicians regarding the facts and circumstances surrounding his alleged in-service personal and/or sexual assault, and given the lack of corroborating evidence of the alleged in-service incident(s) in any of the Veteran's contemporaneous service personnel records or service treatment records, the Board finds that there is insufficient information to conclude that an in-service personal and/or sexual assault, in fact, occurred.

The Board notes that VA recently amended 38 C.F.R. § 3.304 by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) which liberalized the prior requirement for independent corroboration of in-service stressors.  For any appeal which was filed at the Board but not adjudicated before July 13, 2010, as in this case, the revised § 3.304 provides that, in certain limited circumstances, a VA psychiatrist or psychologist's opinion can serve to corroborate a Veteran's alleged in-service stressor where such stressor results in a diagnosis of PTSD provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service.  In this case, however, the Board finds that the revised § 3.304 is not applicable because none of the Veteran's alleged in-service stressors have been corroborated by a VA psychiatrist or psychologist.  Nor have the Veteran's alleged in-service stressors resulted in a diagnosis of PTSD rendered by a VA psychiatrist or psychologist.  See 75 Fed. Reg. 39843 (July 13, 2010) as amended by 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective date of the revised § 3.304 to July 13, 2010).  The Veteran also has not contended, and the evidence does not show, that his claimed in-service stressors involve fear of hostile military or terrorist activity as contemplated by the revised regulations.  Id.

The Board observes that, in an August 2001 letter apparently written to the Veteran's mother, a VA staff psychologist stated that the Veteran's "mental health conditions stem from post dramatic [sic] stress disorders while serving in the military."  This VA examiner did not identify or refer to any of the Veteran's alleged in-service stressors in his August 2001 letter.  And, although poorly written, this opinion suggests that, at best, the Veteran experienced PTSD during active service.  No diagnosis of PTSD was offered in this letter, however.  This examiner also appears to suggest in the August 2001 letter that other "mental health conditions" experienced by the Veteran "stem from" PTSD although none of these other conditions are identified.    

The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion.  Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).  A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional.  LeShore v. Brown, 8 Vet. App. 406, 409 (1995).  The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999).  Thus, a medical opinion is inadequate when it is unsupported by clinical evidence.  Black v. Brown, 5 Vet. App. 177, 180 (1995).  As noted elsewhere, there is no support in the Veteran's service treatment records for his assertion of in-service treatment or diagnosis of PTSD.  Accordingly, because the VA examiner's August 2001 letter is not supported by a factual predicate in the record or any clinical data or other rationale, the Board finds that this letter is not probative on the issue of whether the Veteran currently experiences PTSD which may be attributed to active service.

Further, there is no competent diagnosis of PTSD based on a corroborated in-service stressor.  As noted above, a review of the Veteran's service treatment records shows that he was not treated for or diagnosed as having PTSD at any time during active service.  Although the Board recognizes that the Veteran has been treated for a variety of psychiatric complaints since his service separation, there is no indication that he has been diagnosed as having PTSD based on a corroborated in-service stressor at any time since service.  For example, when he was admitted to a VA domiciliary in July 2001, the Veteran complained of depression, anger, and frustration.  The Veteran denied any psychiatric hospitalizations and stated that he had been diagnosed as being hyperactive when he was 12 years old.  He also denied any suicide attempts and any current suicidal or homicidal ideation.  The Veteran reported that his mother was divorced from his birth father, whom he did not know, although he reported that his father was Jewish and an engineer and his mother was a Native American.  He also reported having an older sister and a younger sister.  He reported further that his stepfather had been in the Army and his family moved a lot.  He denied any history of physical or sexual abuse as a child and described his childhood as fun.  He felt socially different from his peers.  In the last 6 months of his active service, the Veteran reported that "he felt plagued by disciplinary issues within the service and he felt threatened with jail for not following orders."  He also stated that he had experienced "other traumas since the military which he does not feel prepared to talk about at this time."  Mental status examination of the Veteran showed full orientation, coherent speech, clear associations, some paranoia and fear which he explained as trouble talking to women although he was able to participate appropriately in the interview, no signs of organic/cognitive impairment other than a reported attention disorder which was not present during the interview, and underlying anxiety and anger.  The impressions included rule-out PTSD.  A Discharge Summary completed in October 2001 indicates that the Veteran was discharged from a VA domiciliary after becoming extremely irritable and cursing and insulting several of the women employees on his treatment team.  The discharge diagnoses did not include a confirmed diagnosis of PTSD.

The Veteran's SSA records, received by the RO in May 2005, consist largely of duplicate copies of his VA outpatient treatment records.  No diagnosis of PTSD is contained within the Veteran's SSA records.

On VA examination in July 2010, the Veteran's complaints included mood instability.  It was noted that the Veteran had been demanding, hostile, agitated, loud, aggressive, and threatening prior to the 2-hour psychiatric interview.  When registering for the examination with the receptionist, he refused to wait in the waiting room, became aggressive and disruptive, and VA security had to be called.  Two security personnel, the chief of service, and the lead administrator spent time with the Veteran "to structure and de-escalate."  It was noted that the chief of service was present during the first part of the interview and the lead administrator stayed for the remainder of the interview.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and service personnel records, the Veteran's VA outpatient treatment records, and the Board's remand.  The Veteran reported during the interview that he "was having a panic attack" but failed to acknowledge his aggressiveness.  The VA examiner stated that clinical notes showed a longstanding pattern of explosiveness and hostility in structured situations.  Although the Veteran reported that he had been treated for a mental disorder between 2001 and 2007, this report was not sustained by a review of the clinical evidence.  The Veteran's discharge from a VA domiciliary in October 2001 for verbally threatening female staff was noted.  The Veteran described an inverted sleeping pattern (up at night and sleeping by day in his car).  He denied any suicidal ideation or plan.  

The VA examiner reviewed the Veteran's outpatient treatment records in detail in July 2010.  This examiner stated that the Veteran's reported family history differed from what he had reported across a number of psychiatric contacts noted in his claims file.  Although the Veteran reported in July 2010 that he was the second of 3 children and his mother currently worked for the FBI, he previously had reported that his mother was a Native American and his biological father was Jewish and was not a part of his life.  Although he also reported in July 2010 that he had 1 older and 1 younger sister, he previously had reported that he only had 1 younger sister.  The VA examiner also noted that, although the Veteran denied any family psychiatric history at this examination, he had reported previously that both his mother and his maternal grandmother had experienced depression.  This examiner stated that, although the Veteran reported in July 2010 that he had friends and many activities prior to active service, he had reported previously that he experienced social anxiety, felt like an outsider, and had been a loner during childhood and adolescence.  The VA examiner concluded that the Veteran's history was vague and differed from other reports contained in clinical notes across a variety of treatment providers in his claims file.  This examiner also stated that, with respect to the Veteran's claimed in-service stressors, his "version of events change[d] markedly over the period 1996-2007" and could not be corroborated.  This examiner stated further that there were clinical notes in the claims file containing descriptions of marked estrangement from his family members and a history of emotional abuse during childhood, although the Veteran reported in July 2010 that his mother was his "ally" and having a cordial relationship with his stepfather.  This examiner noted that the Veteran denied any history of suicide attempts which was directly contrary to his in-service report in October 1995 that he had attempted suicide.  The Veteran also had reported in November 2001 that he had attempted suicide while in college.  The Veteran further denied any history of violence although episodes of aggressive outbursts and violent threats directed towards female staff members and women in general while residing at a VA domiciliary were noted.  The VA examiner stated that this aggressiveness had prompted the Veteran's discharge from the domiciliary in October 2001.

Mental status examination of the Veteran in July 2010 showed he was clean, casually dressed, and hyperactive with constant movement while seated during the interview.  His speech was spontaneous, rapid, loud, clear, and coherent.  It also was loquacious, animated, and somewhat tangential.  The Veteran was evasive in answering particular questions about his current symptoms and functioning.  He tended to respond to questions with historical information and allegations rather than responding directly to questions about current symptoms and circumstances.  He was agitated, indignant, forceful, and angry when describing the military in general, his perceptions about homophobia in the military, and his allegations about military sexual trauma.  The Veteran was distracted easily and had a short attention span.  He was unwilling to do serial 7's or spell a word forward and backward.  He had full orientation.  His thought process was racing with an overabundance of ideas and tangentiality.  He was preoccupied with 1 or 2 topics and focused on his allegations of military sexual trauma.  He denied any hallucinations.  The Veteran reported experiencing heart palpitations, heart pounding, and a fear of losing control in relation to people and novel situations.  No suicidal or homicidal ideation was present.  There was evidence of poor impulse control and episodes of violence.  The Veteran was unable to maintain minimum personal hygiene, reporting that he lived out of his car and used restroom facilities at highway rest stops.  After reviewing the Veteran's service treatment records, the VA examiner stated that the January 15, 1996, ER record focused on physical assault and did not indicate that any sexual assault had occurred.  There also was no evidence that the Veteran had been examined physically at that time as he had refused treatment.  This VA examiner also stated that, given the Veteran's inconsistent statements concerning his PTSD symptoms, it was not possible to establish clearly the date of onset of his alleged PTSD symptoms.  This examiner noted that the Veteran's statements written within 6 months of his discharge from active service and within 5 years of his discharge did not allege any military sexual trauma.  Instead, the Veteran first mentioned in-service sexual trauma in August 2004, more than 8 years after his service discharge.  The Veteran attributed all of his symptoms of psychiatric disorders to military sexual trauma.  

Following the Veteran's examination in July 2010, the VA examiner concluded that he did not meet the DSM-IV stressor criterion or the DSM-IV criteria for a diagnosis of PTSD.  The VA examiner stated that there was no verifiable stressful event to indicate actual or threatened death, serious injury or threat to physical integrity, nor credible evidence that his response involved intense fear, helplessness, or horror, so as to satisfy the DSM-IV criteria for a diagnosis of PTSD.  This examiner noted that the Veteran's June 1996 letter to the BCMR, which addressed the events surrounding his separation from active service, did not mention a verifiable stressful event such as a physical or sexual assault and, in fact, indicated a desire to return to active service.  This examiner also reviewed multiple instances in which the Veteran had denied experiencing any traumas when asked by his VA treating physicians in 2001.  

The Board recognizes that the Veteran has contended that he currently experiences PTSD as a result of active service, including as a result of in-service trauma.  The competent evidence does not show that the Veteran has been diagnosed as having PTSD based on a corroborated in-service stressor, however.  As discussed above, the Veteran has not reported consistently the facts and circumstances surrounding his alleged in-service stressors.  Indeed, it is not clear from a longitudinal review of the Veteran's multiple conflicting statements made in support of his claim to VA and to his VA treating physicians since his separation from service whether he alleges that he experienced an in-service personal assault or an in-service sexual assault that, in his view, led him to experience PTSD.  In any event, the Veteran's assertions of an in-service assault (whether characterized as a personal or sexual assault) are not supported by a review of the competent evidence of record, to include his service treatment records and service personnel records.  These records show instead that the Veteran originally received a dishonorable discharge because, in his own words, he had become a "problem soldier" who refused to follow orders.  Following his original dishonorable discharge from service, the Veteran later boasted of his refusal to obey his chain of command during service as a result of alleged mistreatment when he withdrew his first appeal to the BCMR to have his discharge upgraded several months after his service separation in January 1996.  The Board also recognizes that the Veteran's service discharge subsequently was upgraded to a general discharge under honorable conditions.  

The Veteran has been treated for a variety of psychiatric problems since his service separation.  No competent diagnosis of PTSD has been offered by any VA or private treating physician who has seen the Veteran since service, however.  More importantly, no VA psychiatrist or psychologist corroborated any of his alleged in-service stressors on which a competent diagnosis of PTSD must be based, even under the relaxed evidentiary standard for stressors found in the revised § 3.304(f).  See 38 C.F.R. § 3.304(f) (effective July 13, 2010).  The Board acknowledges further that, following VA treatment on admission to a domiciliary in July 2001, the diagnoses included "rule-out" PTSD.  The notation of "rule-out" PTSD in July 2001 does not equate with a meeting of the diagnostic criteria for PTSD, however.  Rather it merely raised the possibility of the disorder; it clearly is not a confirmed diagnosis.  And subsequent examinations failed to confirm such a diagnosis.  The VA examiner specifically concluded at the Veteran's most recent VA examination in July 2010 that, given the Veteran's inconsistencies in reporting what had happened to him in service, and given that what the Veteran reported was not supported by a review of the competent evidence (and, in fact, often was directly contrary to what he previously had reported to other treating physicians), he did not meet the DSM-IV criteria for a valid stressor or for a diagnosis of PTSD.  In short, there is no competent evidence that the Veteran currently experiences any disability due to PTSD which could be attributed to active service.  

A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability.  Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection is not warranted in the absence of proof of current disability.  The Veteran also has not identified or submitted any competent evidence, to include a medical nexus, which demonstrates that he experiences PTSD which could be attributed to active service.  Absent such evidence, the Board finds that service connection for PTSD is not warranted.

Acquired Psychiatric Disability Other Than PTSD

The Board also finds that the preponderance of the evidence is against the Veteran's claim of service connection for an acquired psychiatric disability other than PTSD, to include bipolar disorder and obsessive compulsive disorder.  The Veteran essentially has contended that an acquired psychiatric disability existed prior to service and was aggravated (permanently worsened) by service.  Despite the Veteran's assertions to the contrary, the competent evidence does not show that any current acquired psychiatric disability clearly and unmistakably existed prior to service.  Nor is there clear and unmistakable evidence that any pre-existing acquired psychiatric disability was aggravated by active service or otherwise is related to service.  The competent evidence (in this case, the Veteran's service treatment records and post-service VA and private treatment records) shows instead that the Veteran's acquired psychiatric disability was not noted at service entrance and underwent no increase in severity during service.  38 U.S.C.A. §§ 1112, 1132, 1153; 38 C.F.R. §§ 3.304, 3.306(b).  The Veteran's service treatment records show that, at his enlistment physical examination in June 1994, he denied any relevant pre-service medical history of psychiatric problems and clinical evaluation showed his psychiatric system was clinically normal.  No pre-service acquired psychiatric disability was noted at his enlistment physical examination prepared at the time of the Veteran's entry on to active service.  Because an acquired psychiatric disability was not noted at service entrance, the Board finds that the Veteran was accepted on to active service in sound condition and the presumption of sound condition at service entrance is applicable.  See Crowe v. Brown, 7 Vet. App. 238 (1994); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  His service treatment records also do not show that he complained of or was treated for an acquired psychiatric disability to include bipolar disorder and obsessive compulsive disorder, at any time during active service.  These records were screened "in conjunction with a mental status examination for administrative action" in September 1995.  A "Patient Progress Report" dated in September 1995 shows that, when the Veteran was discharged from treatment for alcohol abuse, his commander concluded that his conduct had been unsatisfactory and recommended separation from active service "for other than alcohol/drug reasons."  As noted above, although the Veteran reported on periodic physical examination in October 1995 that he had attempted suicide, his psychiatric system was clinically normal at that time.  The Veteran's service treatment records otherwise are completely silent for any complaints of or treatment for psychiatric problems, including an acquired psychiatric disability to include bipolar disorder and obsessive compulsive disorder, at any time during active service.  Accordingly, the Board finds that there is no evidence that an acquired psychiatric disability underwent any increase in severity during service such that in-service aggravation may be conceded.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b).

The competent post-service evidence also does not support the Veteran's assertions that an acquired psychiatric disability to include bipolar disorder and obsessive compulsive disorder, existed prior to service and was aggravated by service.   For example, when he was admitted to a VA domiciliary in July 2001, the Veteran reported being diagnosed as hyperactive at age 12 (or prior to his entry on to active service) and being sent to a specialist at that time.  He also reported that his first psychiatric treatment was his current treatment in a VA domiciliary.  The impressions included rule-out attention deficit disorder (ADD).  The Veteran's VA treating psychologist stated in an August 2001 letter that his mental health problems stemmed from active service.  This examiner did not indicate that there were any acquired psychiatric disabilities experienced by the Veteran which existed prior to service, however.  A long history of attention deficit hyperactivity disorder (ADHD) was noted on VA outpatient treatment in October 2001.  At the Veteran's discharge from a VA domiciliary later in October 2001, it was noted that he had been seen by psychiatry and started on Paxil to help control his ADD.  The discharge diagnoses included ADD with hyperactivity.

On VA examination in July 2010, the VA examiner noted that a review of the claims file showed the onset of the Veteran's mood instability preceded his active service, including ADHD since early childhood which was not diagnosed or treated.  The Veteran also reported that his obsessive compulsive disorder (OCD) began prior to service.  After interviewing the Veteran about his pre-service history and reviewing the claims file, the VA examiner concluded that the Veteran's history was vague and differed from previous reports made to other treatment providers.  The VA examiner opined that no acquired psychiatric disability was related to active service after comparing the Veteran's statements regarding his reported symptom onset with the clinical records in the claims file.  The diagnoses included bipolar disorder, not otherwise specified, by history and presentation, and OCD by history and self-report.  

The Board recognizes the Veteran's assertion that he experienced an acquired psychiatric disability, to include bipolar disorder and OCD, prior to active service which was aggravated by service.  The competent evidence (in this case, the Veteran's service treatment records) does not support this assertion, however.  No acquired psychiatric disability was noted at service entrance.  Nor did a pre-existing acquired psychiatric disability undergo any increase in severity during service.  The post-service evidence suggests that, at best, the Veteran reported being told he was hyperactive at age 12, approximately 14 years before his entry on active service at age 26, and being diagnosed as having ADD or ADHD in 2001, approximately 5 years after his service separation in 1996.  There is no indication in the competent post-service evidence, however, that the Veteran's acquired psychiatric disability existed prior to service and was aggravated by service.  The VA examiner also did not indicate in July 2010, following a comprehensive interview of the Veteran and review of his claims file, that an acquired psychiatric disability existed prior to service and was aggravated by service.  The Veteran also has not identified or submitted any competent evidence, to include a medical nexus, which shows that he experienced an acquired psychiatric disability prior to service which was aggravated (or permanently worsened) by service.  Accordingly, the Board finds that service connection for an acquired psychiatric disability to include bipolar disorder and obsessive compulsive disorder, is not warranted on the basis of in-service aggravation.

The Veteran also is not entitled to service connection for an acquired psychiatric disability, to include bipolar disorder and obsessive compulsive disorder, on a direct service connection basis.  The Veteran has contended that he incurred an acquired psychiatric disability, to include bipolar disorder and OCD, during active service.  Despite the Veteran's assertions to the contrary, his service treatment records show no complaints of or treatment for an acquired psychiatric disability at any time during active service.  The competent evidence also shows that, although the Veteran has been treated for a variety of acquired psychiatric disabilities, to include bipolar disorder and OCD, following service separation, no currently diagnosed acquired psychiatric disability has been related to active service.  For example, on VA outpatient treatment in July 2001, the Veteran's complaints included depression, anger, and frustration.  It was noted that the Veteran was a resident in a VA domiciliary to deal with OCD.  He denied any suicidal or homicidal ideation and any history of assaultive behavior.  Mental status examination of the Veteran in July 2001 showed full orientation, coherent speech, clear associations, no signs of organic/cognitive impairment other than a reported attention disorder which was not present during the interview, and underlying anxiety and anger.  The impressions included OCD.

In September 2001, the Veteran complained of needing to "calm down" after a verbal altercation with an employee at a VA domiciliary.  It was noted that he currently was a domiciliary resident.  He reported that he had become suddenly angry when a VA domiciliary employee had asked him to clean up and turn off the TV.  He had left the room and counted to 10 which helped him calm down but then he became angry again and wanted to hit the employee.  His psychiatric history included ADD, questionable bipolar affective disorder, and OCD.  Mental status examination of the Veteran showed normal grooming and hygiene, speech regular in rate and rhythm, logical and coherent thought processes, and no suicidal or homicidal ideation, paranoid or grandiose delusions, or auditory or visual hallucinations.  The diagnoses included OCD, dysthymia, rule-out bipolar affective disorder, and rule-out intermittent explosive disorder.

A "Mental Disorder Questionnaire Form" completed by a private physician in October 2001 and included in the Veteran's SSA records shows that the Veteran was a "large, imposing, and at times menacing looking man" and "often appears sullen and angry."  He could "lash out verbally without provocation" as well.  The Veteran complained of being unable to deal with people, hating women and having hostile fantasies towards them, and being obsessive.  He reported that these problems were "longstanding but more intensive [in] the last 2 years."  It was noted that the Veteran never had sought psychiatric help despite persistent significant problems.  There was evidence of disturbed thinking with his obsessions and his anger fantasies impaired his concentration.  There were no overt psychotic symptoms.  The impressions included OCD, impulse control disorder, and dysthymic disorder.

While residing at a VA domiciliary on October 21, 2001, the Veteran was seen after threatening female staff at this facility.  He was pending discharge from the domiciliary and possibly malingering.  His history included OCD.  The impressions included OCD and rule-out malingering.  

On October 23, 2001, it was noted that the Veteran had been brought in for hospital admission at a VA medical center from the VA domiciliary after threatening female staff members there.  On admission, the Veteran reported that he had been doing well with his anger issues until running out of his medications several days earlier.  He also reported having ADHD and being unable to sit for long periods of time.  He was experiencing increasing agitation and not sleeping.  On the day of his admission, the Veteran was loud, threatening female staff, swearing at a female psychologist, and threatening to hurt others.  He also was agitated, confrontational with female staff, and refused to be interviewed by a female doctor.  He stated that he did not want to harm anyone.  He denied episodes of increased energy, elevated mood, and decreased need for sleep.  He also denied any current homicidal ideation.  A diagnosis of OCD was noted.  He reported breaking up with his last girlfriend 1 year earlier.  Mental status examination of the Veteran showed full orientation, normal speech in rate and rhythm, mild agitation, goal directed though processes, and impulsive judgment.  The diagnoses included rule-out intermittent explosive disorder, bipolar II, and OCD.

A VA social work note dated on October 24, 2001, indicated that, 2 days earlier, the Veteran had begun shouting obscenities and using a variety of derogatory terms to describe women.  The Veteran confronted this female VA social worker and verbally assaulted her even as she walked away from him.  The Veteran subsequently threatened that, if he was discharged, he would follow this female VA social worker and hurt her and other women.

When the Veteran was discharged from a VA domiciliary on October 29, 2001, it was noted that he had been admitted to the VA domiciliary in July 2001 with feelings of depression and unhappiness.  He had alienated himself from family and friends.  The diagnoses included OCD.

On VA outpatient treatment in November 2001, the Veteran complained of poor impulse control, specifically wanting to fly to Iceland to hurt is ex-girlfriend.  He reported that, for the previous 4 days, he had been thinking about going to Iceland.  He actually had gotten on a bus to the airport that morning but had been stopped by a friend who confiscated his passport and told him to go for an evaluation.  The Veteran reported feeling depressed for the previous year.  He also reported that he had been in a VA domiciliary but had been kicked out because he had used a derogatory term towards a female staff member.  The Veteran reported that he wanted to cut off his girlfriend's hands and feet and would get great pleasure out of doing so although he did not want to kill her.  He also realized that such thinking was "sick" and "not moral."  Mental status examination of the Veteran showed full orientation, a slightly disheveled appearance, psychomotor agitation, speech regular in rate, rhythm, and volume, slightly circumstantial and tangential but mostly linear thoughts, no suicidal ideation, and moderately impaired judgment.  The impressions included a history of dysthymia and rule-out bipolar II.

The Veteran was hospitalized at a VA medical center on November 14, 2001, for complaints of impulses to hurt his girlfriend in Iceland.  He presented with manic symptoms including an irritable and depressed mood and increased rate and volume of speech.  He reported that he was fixated on his ex-girlfriend and wanted to cut off her hands and feet.  A history of a suicide attempt in college when he lacerated his arms with the intent of bleeding to death was noted.  It also was noted that the Veteran had "some problems" in service but his in-service history was vague.  His discharge from a VA domiciliary was noted after 31/2 months due to threatening behavior and verbal abuse of staff.  The Veteran reported that he was "mentally abused" by his parents because they "made him feel unwanted."  Mental status examination of the Veteran showed full orientation, increased speech in rate and volume, suicidal and homicidal ideation, and impaired insight and judgment.  The diagnoses included mixed bipolar disorder.  He was discharged against medical advice on November 16, 2001.

The Veteran was hospitalized again at a VA medical center from November 20-26, 2001, with complaints of impulses to hurt women.  It was noted that, on his last admission, he had presented with manic symptoms, including an irritable and depressed mood and increased rate and volume of speech.  He had reported on his last admission that he was fixated on his ex-girlfriend and wanted to cut off her hands and feet.  His girlfriend reportedly lived in Iceland.  The Veteran reported at his current admission that he had tried to cope with his fixation by traveling around the country.  He was guarded about how he got his money for travel, except that some of it came from his parents, and was very disappointed with his parents.  It was noted that, on his last admission, the Veteran was observed to switch from a perfectly normal and logical discussion of his problems to complete rage a few minutes later when he felt ignored by a female trainee in the day room.  On his current admission, the Veteran reported that he felt that "he might kick any girl he might see on a bus that would remind him of his former girlfriend."  He was readmitted for further evaluation to focus on his mood and personality disorder features.  On this admission, the Veteran chose to focus his hostility on 1 female staff member in particular and was not manageable as an in-patient.  He was discharged abruptly because of his insistence on the discharge.  The diagnoses included affective disorder, not otherwise specified, with bipolar features, and rule-out atypical psychosis.

In a December 2003 treatment note included in the Veteran's VA outpatient treatment records, a VA psychiatrist stated that the Veteran had called to obtain a private psychiatric referral.  It was noted that the Veteran had been a patient in the day hospital while living in a VA domiciliary "some years back."  The Veteran's "lifelong problems of identity, erratic moods, [and] social anxiety" were noted.  This VA examiner stated that it appeared that "low-simmering issues from childhood came to a boil in the military" and the Veteran had been unstable since service.  The Veteran was not paranoid.  He did not mention any suicidal or homicidal ideation and was coherent and reasonable in conversation.  The VA examiner concluded that the Veteran "is an intense man and can intimidate the faint of heart with his [bravado] and at times sarcasm."

In a February 2007 letter, Dr. Katz stated that the Veteran had been under his care since August 2006 and had been diagnosed as having bipolar disorder, ADD, social anxiety, and OCD.  

On VA examination in July 2010, it was noted that the Veteran had been demanding, hostile, agitated, loud, and aggressive, and threatening, including before his examination was held.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA and private treatment records, in great detail.  A longstanding pattern of explosiveness and hostility in structured situations was noted.  Prior diagnoses of several acquired psychiatric disabilities, to include bipolar disorder and OCD, were noted.  A review of the claims file showed that the Veteran reported that his mood instability and OCD preceded active service.  The VA examiner noted that, although the Veteran previously had reported being diagnosed as having ADHD in childhood, he only reported at this examination that " I didn't get good grades because I wanted to get laid and drink."  After reviewing the Veteran's pre-service history and comparing what he reported at the current examination with what he had reported and what was in his clinical records, the VA examiner concluded that the Veteran's reported history was vague and differed from what he had reported previously to other examiners.  The Veteran denied any history of suicide attempts or violent behavior, although the VA examiner noted that this differed from what he had reported during service in October 1995 and was directly contrary to his discharge from the VA domiciliary in October 2001 due to violent and aggressive behavior.  The Veteran reported that he was homeless and slept in his car and had done so for years.  He also said that, although he slept in his car, he "can't really sleep because I believe someone is trying to get me."  He also reported that he could not eat and only drank coffee the day before his examination.  The VA examiner stated that there was no documentation to confirm the Veteran's report of being homeless or his whereabouts since late 2001.  

Mental status examination of the Veteran in July 2010 showed he was clean, casually dressed, hyperactive with constant movement while seated during the interview, loquacious, animated, and somewhat tangential speech, full orientation, racing thought processes, preoccupation with 1 or 2 topics, no delusions, partial insight, inappropriate behavior, panic attacks, obsessive-compulsive features, poor impulse control, an inability to maintain minimum personal hygiene, and no hallucinations or suicidal or homicidal ideation.  The VA examiner concluded that the Veteran's descriptions of his compulsions satisfied the DSM-IV diagnostic criteria for OCD.  This examiner opined that no acquired psychiatric disability was related to active service.  His rationale was that the Veteran's reported symptoms were not supported by the clinical evidence of record.  The diagnoses included bipolar, not otherwise specified, by history and presentation, and OCD by history and self-report.  

The Board acknowledges the Veteran's continuing complaint that his current acquired psychiatric disability, to include bipolar disorder and OCD, is related to active service.  This assertion is not supported by the competent evidence of record, however.  The Veteran's service treatment records show no diagnosis of or treatment for an acquired psychiatric disability at any time during active service.  Although the Veteran has been treated for and diagnosed as having multiple acquired psychiatric disabilities since service separation, to include bipolar disorder and OCD, none of his VA and private treating physicians have related an acquired psychiatric disability to active service.  The Board finds it significant that, although the Veteran has been treated repeatedly since service for a variety of psychiatric problems, he has not reported - and his treating physicians have not indicated - any relevant in-service history of an acquired psychiatric disability.  The Veteran also has not identified or submitted any competent evidence, to include a medical nexus, which indicates that an acquired psychiatric disability, to include bipolar disorder and obsessive compulsive disorder, is related to active service.  Thus, the Board finds that service connection for an acquired psychiatric disability, to include bipolar disorder and obsessive compulsive disorder, is not warranted on a direct service connection basis.

Obesity

The Board finally finds that the preponderance of the evidence is against the Veteran's claim of service connection for a disability characterized by obesity or an eating disorder, including as secondary to a psychiatric disability.  The Veteran's service treatment records are completely silent for any complaints of or treatment for a disability characterized by obesity or an eating disorder, including as secondary to a psychiatric disability.  These records show instead that, at his enlistment physical examination in June 1994, the Veteran denied all relevant medical history.  Clinical evaluation showed the Veteran had a medium build, weighed 212 pounds, and was 733/4  inches tall.  On periodic physical examination in October 1995, approximately 3 months prior to his separation from service, the Veteran reported a medical history of recent gain or loss of weight.  Weight gain was noted by the in-service examiner.  Physical examination showed the Veteran had a heavy build, weighed 225 pounds, and was 73 inches tall.  Following his separation from active service in January 1996, it appears that the Veteran first was treated for a disability characterized by obesity or an eating disorder in July 2001, or more than 5 years later.  The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

On admission to a VA domiciliary in July 2001, the initial diagnostic impressions included obesity on Axis III.  The Veteran met with a VA nutritionist following his admission to the domiciliary.  At that time, he reported wanted to lose weight but having one problem in that he loved to eat.  He requested a weight reduction diet.  The Veteran's weight was 298 pounds and his height was 6 feet 2 inches.  His body mass index (BMI) was 38.3.  His ideal body weight was 209 pounds and he was 147 percent of his ideal body weight.  It was noted that the Veteran had a mildly compromised nutrition status.  He was at risk for developing problems associated with obesity such as hypertension and diabetes.  He appeared to have a low motivation for starting a weight management diet.  The diagnoses included obesity.

On a VA Social Work Domiciliary Treatment Plan Reassessment Note completed in August 2001 while the Veteran was living in a VA domiciliary, a VA social worker stated that, following an interview with the Veteran and his Domiciliary Alcohol Counselor, although the Veteran reported no substance abuse problem, "he shows indication of an eating disorder."  The Veteran agreed that it would be beneficial for him to meet with an addiction therapist prior to graduating from phase I of the domiciliary program.

On admission to a VA medical center in September 2001 while residing in a VA domiciliary, the Veteran reported that he used to eat whenever he became angry/upset, resulting in obesity, but he had been working "both on his diet and his temper."  He also reported increasing anger with decreasing food intake in the previous 2 weeks.  A history of exogenous obesity was noted.  The Veteran was moderately to severely obese.  It was noted that the Veteran reported increased irritability in conjunction with diet for weight loss.  The Axis III diagnosis was obesity.

On VA outpatient treatment in October 2001, just prior to his discharge from a VA domiciliary, a history of morbid obesity was noted.  Physical examination showed he weighed 290 pounds, was 72 inches tall, and was morbidly obese.  The impressions included morbid obesity.

A Discharge Summary completed at the Veteran's discharge from a VA domiciliary in October 2001 shows that he had been admitted to the domiciliary in July 2001 with feelings of depression and unhappiness, "especially over his recent gaining of over 100 pounds of weight in two years."  Objective examination showed the Veteran weighed 298 pounds and was 6 feet 2 inches in height.  The Axis III diagnoses included obesity.

Following his abrupt discharge after spending a few days at a VA medical center in November 2001, the Axis III diagnoses included exogenous obesity.

On VA outpatient treatment in August 2002, it was noted that the Veteran was obese.  He reported having high blood pressure.  The VA social worker concluded that the Veteran had symptoms of an eating disorder.  The Axis III diagnoses included obesity.  

The Board acknowledges the Veteran's continued assertions that his disability characterized by obesity or an eating disorder is related to active service and/or was caused or aggravated by a psychiatric disability.  The Board also acknowledges that the Veteran has been treated for a disability characterized by obesity or an eating disorder since his service separation.  Despite the Veteran's assertions to the contrary, however, there is no competent evidence in his service treatment records or in the post-service VA and private treatment records which relates a disability characterized by obesity or an eating disorder to active service on a direct basis.  The competent evidence shows that the Veteran was treated for obesity in 2001 and in 2002, including while residing at a VA domiciliary.  His more recent treatment records, including a comprehensive VA psychiatric examination conducted in July 2010, suggest that the Veteran does not experience any current disability characterized by obesity or an eating disorder which could be attributed to active service or any incident of service, including as secondary to a psychiatric disability.  For example, no Axis III diagnosis, including obesity or an eating disorder, was noted on VA examination in July 2010.  See Rabideau, 2 Vet. App. at 144; and Brammer, 3 Vet. App. at 225.  The Veteran also has not identified or submitted any competent evidence, to include a medical nexus, which relates his disability characterized by obesity or an eating disorder to active service.  Thus, the Board finds that service connection for a disability characterized by obesity or an eating disorder is not warranted on a direct service connection basis.  See 38 C.F.R. §§ 3.303, 3.304.

The Veteran also is not entitled to service connection for a disability characterized by obesity or an eating disorder as secondary to a psychiatric disability.  See 38 C.F.R. § 3.310.  As noted elsewhere, the Board has found that service connection for PTSD and for an acquired psychiatric disability other than PTSD, to include bipolar disorder and OCD, is not warranted.  There is no competent evidence, to include a medical nexus, which indicates that the Veteran's claimed PTSD or any currently diagnosed acquired psychiatric disability, to include bipolar disorder and OCD, caused or aggravated his disability characterized by obesity or an eating disorder.  The Veteran also has not identified or submitted any competent evidence, to include a medical nexus, showing that his PTSD or an acquired psychiatric disability other than PTSD, to include bipolar disorder and OCD, caused or aggravated his disability characterized by obesity or an eating disorder.  Thus, the Board finds that service connection for a disability characterized by obesity or an eating disorder, including as secondary to a psychiatric disability, is not warranted.

In this decision, the Board has considered all lay and medical evidence as it pertains to the issue.  38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence").  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown,6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). 

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

As part of the current VA disability compensation claims, in recent statements, the Veteran has asserted that his symptoms of PTSD, an acquired psychiatric disability other than PTSD, to include bipolar disorder and OCD, and a disability characterized by obesity or an eating disorder have been continuous since service.  He asserts that he continued to experience symptoms relating to PTSD (nightmares, irritability), an acquired psychiatric disability other than PTSD, to include bipolar disorder and OCD (obsessive-compulsive behavior, mood swings), and of a disability characterized by obesity or an eating disorder (excessive weight gain due to overeating) after he was discharged from the service.  In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of any of these disabilities after service separation.  Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible.  

The Board finds that the Veteran's more recently-reported history of continued symptoms of PTSD, an acquired psychiatric disability other than PTSD, to include bipolar disorder and OCD, and a disability characterized by obesity or an eating disorder since active service is inconsistent with the other lay and medical evidence of record.  Indeed, while he now asserts that each of these disorders began in service, in the more contemporaneous medical history he gave at a periodic physical examination in October 1995, approximately 3 months prior to his service separation, he denied any history or complaints of symptoms of PTSD or an acquired psychiatric disability other than PTSD.  He reported only that he had experienced weight gain during service.  Specifically, the service separation examination report reflects that the Veteran was examined and his psychiatric system was found to be clinically normal.  It also was noted that he had a heavy build but no diagnosis of obesity or an eating disorder was offered at this examination.  The Veteran's in-service history of symptoms reported in October 1995, approximately 3 months prior to his service separation, is more contemporaneous to service so it is of more probative value than the more recent assertions made many years after service separation.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).  

The post-service medical evidence does not reflect complaints or treatment related to PTSD, an acquired psychiatric disability other than PTSD, to include bipolar disorder and OCD, or for a disability characterized by obesity or an eating disorder until 2001, or approximately 5 years following active service.  The Board emphasizes the multi-year gap between discharge from active duty service (1996) and initial reported symptoms related to these disabilities in approximately 2001 (a 5-year gap).  See Maxson, 230 F.3d at 1333; see also Mense, 1 Vet. App. at 356.  The Veteran also did not claim that symptoms of any of these claimed disabilities began in (or soon after) service until he filed his current VA disability compensation claims.  Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories.  See Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements).

As noted elsewhere, the Veteran has never reported consistently the facts and circumstances surrounding his in-service experiences, to include his alleged in-service stressors, such that his lay statements concerning the onset of symptoms of any of his disabilities can be afforded any credibility.  The VA examiner compared the Veteran's statements made on VA examination in July 2010 to prior statements he had made to other VA treating physicians regarding his in-service history, his history of family relationships, and his post-service VA treatment history and noted that the Veteran's statements were riddled with contradictions.  As noted in the July 2010 VA examination report, the Veteran reported a very different family history at that examination than what he had reported previously to other VA treating physicians.  For example, he reported having 2 sisters in July 2010 when he only had mentioned 1 younger sister at other treatment visits.  He also reported in July 2010 that his mother was his "ally" and having a "cordial relationship" with his stepfather.  The Board notes, however, that the Veteran's claims file is replete with his statements dated prior to July 2010 about what the VA examiner correctly characterized in July 2010 as "marked estrangement from family members."  The Veteran also had reported on previous VA outpatient treatment visits dated prior to July 2010 that he had been emotionally abused by his parents during childhood.  Although he reported in July 2010 that he had friends and participated in many activities prior to service, he previously had reported to other VA treating physicians that he had social anxiety, felt like an outsider, and had been a loner during childhood and adolescence.  The VA examiner also noted in July 2010 that the Veteran's versions of what had happened to him during service "change[d] markedly over the period 1996-2007" and his inconsistent and conflicting statements regarding his in-service experiences "have no corroboration."  It still is not clear from a review of the record whether the Veteran experienced a physical or sexual assault during active service because his statements to VA and to his treating physicians have been inconsistent with regard to the facts and circumstances surrounding what happened to him in service.  The VA examiner concluded in July 2010 that, given the Veteran's inconsistent statements concerning his PTSD symptoms, it was not possible to establish clearly the date of onset of his alleged PTSD symptoms.  This examiner noted that the Veteran's statements written within 6 months of his discharge from active service and within 5 years of his discharge did not allege any military sexual trauma.  Instead, the Veteran first mentioned in-service sexual trauma in August 2004, more than 8 years after his service discharge.  These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service.  See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service).   Simply put, the Veteran has reported so many different versions of what may have happened to him in service - none of which are capable of corroboration in the record or by a VA psychologist or psychiatrist - that the Board finds it impossible to conclude that any of his statements regarding the alleged in-service events are credible.

The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, and his previous statements made for treatment purposes.  For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation.


ORDER

Entitlement to service connection for PTSD is denied.

Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include bipolar disorder and obsessive compulsive disorder, is denied.

Entitlement to service connection for a disability characterized by obesity or an eating disorder, including as secondary to a psychiatric disability, is denied.



____________________________________________
MICHAEL A. PAPPAS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs