Citation Nr: 1237251 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-28 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder, depression, and post traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran had active military service from June 1982 to May 1986. This matter comes to the Board of Veterans' Appeals (Board) from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which, in pertinent part, denied entitlement to service connection for PTSD. The claim of entitlement to service connection for PTSD has been re-characterized pursuant to the medical evidence of record and Clemons v. Shinseki, 23 Vet. App. 1 (2009). In her August 2009 substantive appeal to the Board the Veteran elected to have a Board hearing at a local RO. Thereafter in June 2010 she elected to have a Board videoconference hearing, which scheduled for January 2011. She was notified of her hearing by an October 2010 letter; however in a December 2010 statement, which was received prior to the scheduled hearing, she withdrew her hearing request. Thereafter, in January 2011 she requested a new hearing. A June 2011 ruling by the Veterans Law Judge (VLJ) who was scheduled to take testimony from her during the January 2011 hearing, found that a new hearing would not be granted. FINDINGS OF FACT 1. There is no independent verification of a stressor in service to support a diagnosis of PTSD. 2. A preponderance of the competent evidence is against a finding that the Veteran's acquired psychiatric disability, to include bipolar disorder, depression, and PTSD, is related to service. CONCLUSION OF LAW The criteria for service connection for acquired psychiatric disability, to include bipolar disorder, depression, and PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). March 2008 and June 2008 pre-adjudication letters satisfied the duty to notify provisions. 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 also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the June 2008 letter informed the Veteran that evidence from sources other than her service records and evidence of behavior changes may constitute credible supporting evidence of the stressor related to her claimed PTSD as required by 38 C.F.R. § 3.304(f)(5). The Veteran's service treatment records (STRs), VA medical treatment records, personnel records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. An adequate VA examination was conducted to assess the nature and etiology of the Veteran's claimed disability; the Veteran has not argued, and the record does not reflect, that this examination is inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence relevant to the issue decided is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis The Veteran seeks service connection for an acquired psychiatric disability, to include bipolar disorder, depression, and PTSD. In a May 2008 written statement she contended that while she worked in a recruiting office under the delayed entry program her supervisor kept her late after everyone else went home with the express purpose of having sexual relations with her. She also contended that while she was stationed at Subic Bay, Philippines, she worked in the men's barracks and assigned rooms. Her supervising petty officer, J.P., would grope her and make lewd sexual advances. This continued until she threatened him at which point he wrote her up for insubordination and gave her a verbal reprimand. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be granted if the evidence shows that the condition was observed during service and continuity of symptomatology was demonstrated thereafter, and if the evidence includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997); 38 C.F.R. § 3.303(b). Establishment for service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which requires that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). 38 C.F.R. § 3.304(f). If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). Additionally, VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. The Board recognizes that the present case falls within the category of situations, to include allegations of personal assault, in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran alleges. See Patton v. West, 12 Vet. App. 272, 281 (1999). The amendments to 38 C.F.R. § 3.304(f)(4) noted above reflect a recognition that service records may not contain evidence of personal assault, and that alternative sources may provide credible evidence of an in-service stressor premised on personal assault including, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases, and statements from family members, roommates, fellow service members, or clergy. See YR v. West, 11 Vet. App. 393, 399 (1998); 38 C.F.R. § 3.304(f)(4). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's STRs do not show any treatment for psychiatric or mental health problems. Her personnel records do not show that she was reprimanded or otherwise disciplined during service. Shortly after separation from active service in May 1986, during an April 1988 enlistment examination for the Fleet Hospital, the Veteran reported that she did not then have, nor has she ever had, frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. She reported that her health was excellent. Following separation from service in May 1986, the first medical evidence of record indicating any treatment for, or diagnoses related to, a possible psychiatric condition or problem, is a January 2007 VA treatment record noting that the Veteran was on medications for depression/anxiety. October 2008 VA treatment records noted that she reported an instance of sexual harassment/assault during service and that she was written up when she reported it. A September 2008 VA treatment record noted that the Veteran was given an assessment of bipolar disorder. January 2009 VA treatment records noted that she reported a history of sexual assault during service in the Philippines. She reported being cornered against her will and when she told him off he wrote her up for insubordination. Finally, a November 2011 VA examination report noted that, following testing, the Veteran met the DSM-IV diagnostic criteria for PTSD. Given that the Veteran has a current acquired psychiatric disability, a VA examination was obtained in November 2011 to determine the etiology of it. The examiner noted a review of the claim file. The Veteran reported that she was approved for the military as an early entry candidate and as she completed high school her military assignment was as an assistant in a recruiter's office. It was noted that the sexual assaults allegedly began under her supervisor. She reported further that while she was stationed in Okinawa, Japan, in October 1982, she was assigned to the men's barracks where her job was to issue keys and assign rooms. Her supervisor, J.P., allegedly engaged in sexual actions towards her, including attempts to touch her sexually. This went on for months and after she threatened him, she was written up for insubordination and given a verbal reprimand. The examiner noted that the Veteran's stressors were sexual abuse and harassment, and that these stressors contributed to her PTSD. It was also noted that her PTSD included symptoms of depressed mood and anxiety. In a July 2012 addendum opinion the examiner noted that it is at least as likely as not that the Veteran's PTSD incurred in, or was caused by, the claimed in-service injury, event, or illness. The rationale for this opinion was that the Veteran's "markers" of military sexual trauma were enlistment at the age of 17, subordinate role to a recruiter in a closed working office, fear of reprisal, increased sexual behavior under the influence of alcohol, alcohol abuse during and after service, write up and or verbal reprimand for insubordination, divorce, post service treatment for depressive symptoms associated with markers, and in-patient psychiatric hospitalization. Any alleged in-service stressors must be supported with credible evidence. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In this regard, the Veteran's service treatment and personnel records do not corroborate that she was sexually harassed or abused as she alleges. Her personal records contain no notation that she was ever reprimanded or otherwise disciplined as she claims. There are post service VA treatment records and the VA examination report noting that she reported in-service sexual harassment and assault; however, in her May 2008 written statement she reported that J.P. sexually assaulted and harassed her while she was stationed in the Philippines, but during her November 2011 examination reported that this same incident occurred while she was in Japan. Given these contradicting reports, and the fact that there is no other evidence of record corroborating her claimed stressful events, such as statements from fellow service members, roommates, family members, records indicating behavior changes or deterioration in work performance, or records from law enforcement authorities, the Board finds that the Veteran's claimed in service sexual harassment and assault is not only not corroborated but, more significantly, is simply not credible. See YR, 11 Vet. App. at 399; 38 C.F.R. § 3.304(f)(4). Similarly, the Veteran's self-reported lay history, which has been found to be not credible, that is transcribed in some of the post-service medical records and the November 2011 VA examination, does not constitute competent medical evidence of causality. See LeShore v. Brown, 8 Vet. App. 406 (1995). Although the Veteran has been diagnosed with PTSD, her diagnosis is based on her uncorroborated reported history of non-combat stressors, which has been found to be not credible. To warrant service connection for PTSD based on a personal or sexual assault, 38 C.F.R. § 3.304(f) provides that the diagnosis must conform to 38 C.F.R. § 4.125(a), and must be based on verified stressors. No probative weight may be assigned to the above discussed VA examination and addendum opinion which contains a diagnosis of PTSD based on the Veteran's non-credible account of unverified stressors of a personal or sexual assault. Additionally, the November 2011 VA examination and July 2012 addendum opinion finding that the Veteran's PTSD is related to service is based on the inaccurate factual premise that the Veteran experienced in-service sexual harassment and assault. A medical opinion based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The November 2011 VA examination report and July 2012 addendum opinion has no probative value regarding the etiology of the Veteran's claimed PTSD. Regarding her claim for an acquired psychiatric disability, to the extent that she is asserting or implying continuity of symptomatology, she is competent to report observable psychiatric symptoms, such as feeling sad or anxious. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The credibility of evidence can be discounted in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Here such assertions that she has had psychiatric symptoms since active service are not found to be credible in light of her own statements in April 1988 that she did not then have frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort rather. See Id. Additionally, the unfavorable evidence consists of the fact that the first contemporaneous medical evidence of any psychiatric disability is in 2007, which was approximately 20 years after the Veteran was discharged from active service. The passage of approximately 20 years before any evidence of the disability is of record can be one factor, though not the only factor, considered to weigh against a finding that such disability is related to service on a direct basis. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The negative evidence in this case outweighs the positive. As a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the diagnosis or etiology of her claimed acquired psychiatric disability and her views are of no probative value. See Layno, supra. The Board has found that her assertions that she has suffered from psychiatric symptoms from service to the present to be not credible and that she suffered no traumatic experience in service. The November 2011 VA examination report and July 2012 addendum opinion are based on the Veteran's non-credible and non-corroborated claimed in-service stressors and are of no probative value. The competent and probative evidence of record shows that the Veteran had no psychiatric disability or traumatic event or verified stressor during service, and that her acquired psychiatric disability, to include bipolar disorder, depression, and PTSD, did not develop for many years after service. See Jandreau, supra. Assuming the Veteran has a qualifying "psychoses," the first contemporaneous medical evidence of diagnosis of it is well after the one-year presumptive period from discharge from service; thus, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. The preponderance of the evidence is against the claim for an acquired psychiatric disability, to include bipolar disorder, depression, and PTSD; there is no doubt to be resolved; and service connection is not warranted. Gilbert, 1 Vet. App. at 57-58. ORDER Service connection for an acquired psychiatric disability, to include bipolar disorder, depression, and PTSD is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs