Citation Nr: 1323061 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 04-39 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder to include a depressive disorder, but not including posttraumatic stress disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The appellant served on active duty from September 1978 to September 1989. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied entitlement to service connection for PTSD. In August 2010, the Board denied entitlement to service connection for PTSD. Therein the Board noted that although the record contained diagnoses of several psychiatric disabilities, the appellant had very specifically limited his claim to the issue of entitlement to service connection for PTSD, hence, the Board addressed only the issue of entitlement to service connection for post traumatic stress disorder. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In April 2011, the Court granted a Joint Motion for Remand finding that the Board had improperly narrowed the scope of the appellant's claim to service connection for PTSD. Consistent with the joint motion the Board has recharacterized the issue on appeal more broadly as entitlement to an acquired psychiatric disability, to include PTSD and depressive disorder. Subsequent to the Court's order, the Board remanded the claim for further development on three occasions: November 2011, June 2012, and February 2013. As noted in its previous remands, the appellant has raised claims of entitlement to service connection for a right eye disorder, a left ear hearing loss, a back disorder, and a left knee disorder. These claims have not yet been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them and they are referred for appropriate action. FINDINGS OF FACT 1. The evidence establishes that the Veteran's depressive disorder, not otherwise specified, is caused in part by his service-connected ankle disability. 2. The Veteran's statements regarding a purported in-service sexual assault are of minimal probative value and raise grave questions as to his credibility. 3. The appellant has not been diagnosed with PTSD based on an independently verified in-service stressor. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, depressive disorder, not otherwise specified, is due in part to a service-connected left ankle disability. 38 C.F.R. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). 2. An acquired psychiatric disorder to include PTSD, but not including a depressive disorder, was not incurred in or aggravated by service; and a psychosis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In the case of certain chronic diseases, including a psychosis, service connection may be presumed if the disease became manifest to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307 , 3.309. Although the Veteran's claim presently includes any acquired psychiatric disorder, the Veteran specifically claimed service connection for PTSD. Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressors occurred. 38 C.F.R. § 3.304(f) (2012); Anglin v. West, 11 Vet. App. 361, 367 (1998). The evidence required to support the occurrence of an in-service stressor varies depending on whether a Veteran was engaged in combat with the enemy. In cases such as this, where there is no combat service, the appellant's assertions of in-service stressors, standing alone, cannot as a matter of law provide evidence to establish an event claimed as a stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, the claimant must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). In non-combat cases of PTSD involving an allegation of personal assault, more particularized requirements are established to verify whether the alleged stressor actually occurred. Patton v. West, 12 Vet. App. 272, 278-80 (1999). In this regard, evidence from sources other than the Veteran's service records may corroborate the appellant's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; and/or statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is another 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)(3). The Veteran alleges that he has PTSD as a direct result of being the victim of a sexual assault in September 1979. See, e.g., December 2008 stressor statement. There is no evidence corroborating the appellant's assertion that he was the victim of an in-service sexual assault at any time during his military service. His service treatment and personnel records are completely negative for evidence of such an incident. The service personnel records do not show that the claimant requested a transfer after the alleged assault. The service department indicated that it had no punishment logs, and the U.S. Army Crime Records Center indicated that there was no record of an investigation or any punishment logs. The service personnel records reflect that the appellant had no performance or behavioral problems until December 1982 and April 1985, respectively, well after the alleged September 1979 assault, at which times the Veteran failed to achieve course standards and he was punished under Article 15 of the Uniform Conduct of Military Justice for twice striking his spouse. Significantly, the medical records reveal that the Veteran did not report a history of a sexual assault until 2007, i.e., about sixteen years after his separation from active duty, and well after he initially filed a claim of entitlement to service connection for PTSD in 1995. The appellant's October 2001 stressor statement and an April 2004 VA treatment record, each of which are devoid of any assertion regarding an in-service sexual assault, reveal that he is not credible. The claimant reports that he witnessed two murders in boot camp, saw soldiers die during various activities including airborne jumps, witnessed tanks collide, was trained to work with nuclear bombs, guarded "prisoners of war from Iran" while in West Germany, was the victim of an armed robbery in service, was in the Special Forces, and served in Egypt and Panama. Significantly, the Veteran's service personnel records, which were prepared contemporaneously with his active duty service, show that he was not in the Special Forces and that he did not serve in Egypt or Panama. Even assuming that the appellant was referring to freed American hostages from the 1979 takeover of the U.S. embassy in Tehran rather than Iranian "prisoners of war," the service personnel records reflect that he served in West Germany well after the Iranian hostage crisis ended on January 20, 1981, and there is no credible evidence to suggest that he guarded any "Iranian prisoner of war" at any time during his service. The Veteran has submitted statements from an associate, K.W., and a brother asserting that he appellant told them about the sexual assault while he was still in service. At the hearing, the appellant claimed that he told another solder, C.J., about the assault and that he would submit a statement from C.J. The claimant did not submit a statement from C.J. and did not testify at the hearing that he told K.W. These lay statements are not corroborating evidence of the alleged in-service sexual assault because they clearly are based on the Veteran's self reported history, which the Board does not find credible. While the appellant is competent to report his own experience, the Board may consider his personal interest in the outcome of a case when evaluating his credibility. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (providing that a pecuniary interest may be found to affect the credibility of testimony). Taken together, the evidence preponderates against finding evidence verifying that the alleged stressor actually occurred. The only evidence to the contrary comes from the Veteran and from an associate and a relative who were simply reporting what the appellant told them. As noted above, his uncorroborated statements and testimony, by themselves, are not sufficient. Based on the Board's findings regarding the Veteran's credibility, the Board previously found that a November 2011 psychiatric examination, which provided diagnoses of PTSD due to military sexual trauma, and major depressive disorder, as secondary to PTSD, to be of limited probative value. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) (holding that a medical opinion based upon an inaccurate factual premise is not probative). The Veteran's other PTSD diagnoses of record are likewise based on non-credible reports of in-service stressors by the Veteran, and are thus likewise of limited probative value. Id. Absent credible corroborating evidence that the claimed in- service stressors actually occurred, the appellant cannot meet the criteria for service connection for PTSD. Hence, entitlement to service connection for post traumatic stress disorder is denied. Regarding the question of entitlement to service connection for a psychiatric disorder other than PTSD, per the April 2013 VA examination, the Veteran has current diagnoses of depressive disorder, not otherwise specified, and anxiety order. The April 2013 examiner found that the anxiety disorder was related to uncorroborated events that occurred prior to, and after, the Veteran's military service. The April 2013 examiner opined that a depressive disorder was "considered at least as likely as not to be partially related to ankle and knee injuries, and non-service events." The examiner expounded on that opinion, noting that the diagnosis was "at least as likely as not, in part, related to his ankle and knee injuries, as the resultant chronic pain conditions in both are significantly associated with depressed mood." The examiner did not link any other acquired psychiatric disorder to service or to a service connected disorder. In addition to direct service connection, as discussed above, service connection is also warranted for a disability which is proximately due to a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran has been service-connected for a left ankle disability since May 1991, based on an in-service ankle fracture sustained during a bad parachute landing fall. As the only probative evidence addressing the etiology of the Veteran's depressive disorder indicates that it is caused, in part, by his service-connected left ankle disorder, service connection must be granted. 38 C.F.R. § 3.310. Hence, entitlement to service connection for a depressive disorder is warranted. 38 U.S.C.A. §§ 1131, 5107. In the absence of any competent and credible evidence even remotely linking any other acquired psychiatric disorder to service, service connection is denied for all other diagnosed psychiatric disorders. In reaching this decision the Board makes no findings concerning the appropriate rating for the Veteran's service connected depressive disorder. As noted above, however, the Board has grave questions concerning the appellant's credibility. Moreover, as noted above, the grant of service connection is strictly limited to the degree that the Veteran's left ankle disorder aggravates his depressive disorder. Hence, in rating the depressive disorder full and appropriate development is required to carefully distinguish and differentiate the pathology due to the service connected depressive disorder from all other psychiatric disorders to include posttraumatic stress disorder. Further, full and complete development must be conducted to distinguish and differentiate the degree to which depression is aggravated by the ankle disorder, and the degree to which depression has a different etiology. ORDER Entitlement to service connection for depressive disorder, not otherwise specified, as secondary to a service-connected left ankle disability, is granted. Entitlement to service connection for any other diagnosed psychiatric disorder to include posttraumatic stress disorder is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs