Citation Nr: 1324628 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 11-07 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served in the United States Army from April 1983 to April 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Although, as in the instant case, a veteran's stated claim may only seek service connection for a particular psychiatric disorder, the United States Court of Appeals for Veterans Claims (Court) has held that such a claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In essence, a veteran does not file a claim to receive benefits for a particular psychiatric diagnosis that is named on a claims form, but instead makes a general claim for compensation for the difficulties posed by the veteran's mental condition. The Board will thus consider entitlement to PTSD and all other psychiatric diagnoses raised by the record. FINDINGS OF FACT 1. The Veteran's claimed in-service personal assault stressor has not been corroborated. 2. The Veteran did not engage in combat while in service. 3. There is no competent and credible evidence that any acquired psychiatric disorder had its onset in service, that a psychosis manifested within one year of service discharge, or that any current acquired psychiatric disorder is related to her active military service. CONCLUSION OF LAW A chronic acquired psychiatric disorder, including PTSD, was not incurred in or aggravated by service; and psychosis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of her claim prior to its initial adjudication. A June 2009 letter explained the evidence necessary to substantiate her claim (including for PTSD based on personal assault), the evidence VA was responsible for providing, and the evidence she was responsible for providing. She was also advised of disability rating and effective date criteria. See Dingess/Hartman, supra. This was supplemented by July 2009 and September 2010 letters to the Veteran requesting that she provide more specific details concerning her stressful event. Thus, the Board finds that she has received all required VCAA notice concerning this claim. Moreover, she has not alleged any prejudicial error in the content or timing of the VCAA notice she received. As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the Veteran, not VA, has the burden of proof of showing there is a VCAA notice error in timing or content and, moreover, that it is unduly prejudicial - meaning outcome determinative of her claim. Thus, absent this pleading or showing, the duty to notify has been satisfied. The RO obtained the Veteran's available service treatment records (STRs), service personnel records, and VA treatment records. Although a VA examination was not scheduled to obtain a medical opinion as to whether the Veteran has PTSD due to personal assault in service, the Board finds that such an examination is not necessary. As discussed in further detail below, the record currently on appeal contains no evidence corroborating the Veteran's claim that she was assaulted during service. Consideration has been given to 38 C.F.R. § 3.304(f)(5), which provides that VA may submit any evidence it has to a VA mental health professional to obtain an opinion as to whether a personal assault occurred. However, the Veteran has yet to submit any credible supporting evidence. There is simply no evidence to provide to an examiner other than the Veteran's personal statements, which are not deemed credible. Thus, an examination is not required here, even under the low threshold of McLendon v. Nicholson, 20 Vet. App. 79 (2006). 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4). Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, including the records in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for disability first diagnosed after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303. In order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Psychoses are listed as chronic diseases under 38 C.F.R. § 3.303(a). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as a psychosis, to a degree of 10 percent or more within one year following separation from active duty service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (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 stressor occurred. See 38 C.F.R. § 3.304(f) (2012). With respect to the third element, the Veteran's claimed stressors must be corroborated by evidence other than the claimant's own testimony or the diagnosis of PTSD itself. See 38 C.F.R. § 3.304(f); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). 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. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include evidence of behavior changes following the claimed assault. Examples of behavior changes that may constitute credible evidence of a stressor include deterioration in work performance and episodes of depression, panic attacks, or anxiety without an identifiable cause, or unexplained economic or social behavioral changes. 38 C.F.R. § 3.304(f)(5) also provides that 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. The Federal Circuit recently held that under 38 C.F.R. § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). The regulations pertaining to PTSD were amended during the pendency of this appeal. The new subsection specifically focuses on those cases where the stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity. The facts of this case clearly establish that the Veteran's stressor is limited solely to a claimed sexual/personal assault in service. Therefore, 38 C.F.R. § 3.304(f)(3) is not for consideration in this case. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102 , 4.3. The Court has stated that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail on a claim for benefits. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In the instant case, the Veteran essentially contends that she has PTSD as a result of an alleged sexual assault that occurred while she served on active duty in the Germany. The Veteran's VA treatment records indicate that she has received a diagnosis of, among other ailments, alcohol dependence, cocaine and marijuana abuse, major depressive disorder, depression, and PTSD. In order to satisfy the third element required to support a claim for PTSD based on personal assault, an in-service stressor, the Board notes that the record must contain credible supporting evidence that the Veteran's claimed in-service stressor actually occurred. The Veteran's STRs show she received gynecological care; however, these records are silent with respect to a report of or treatment for sexual assault/rape (and she has reported that she did not seek medical attention after the alleged sexual assault). These records also suggest that the Veteran was prescribed birth control pills in April 1983 and received a refill in June 1984. In June 1985 (approximately 1 1/2 years after the alleged incident in the winter of 1983), she reported having had no pregnancies, miscarriages or abortions. No other gynecological treatment, or any treatment implying that an assault occurred, is of record. A service separation examination report is not of record. The STRs do not reflect any treatment for the residuals of a personal assault. The lack of evidence in the STRs cannot be construed by the Board, under these circumstances, as negative evidence against the claim. See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). Nevertheless, the Veteran's stressor is not corroborated by anything in the STRs, thus, those records are not supportive of her claim. The record's first indication of an in-service sexual assault appears in a May 2004 VA clinical note stating that the Veteran "admits to MST (military sexual trauma) but states that when she was in the service and reported it they did nothing. States she has dealt with the MST and is not interested in TX (treatment) at this time." In her June 2009 claim for service connection, the Veteran recalled that, in the winter of 1983 while stationed in Germany, she, her best friend and her boyfriend went to another (male) soldier's room to "fix supper" and drink beer. "Everybody was getting along" until she and the male soldier got into an argument which almost resulted in them fighting. Because of the argument, the CQ (Charge of Quarter) sergeant asked her boyfriend to leave the unit, sent her to her room, and told the male soldier to stay in his room. The Veteran further recalled that she "was upset and went to her room and fell asleep. The next thing [she] was awake and [the male soldier] was assaulting [her]." She stated that she told the male soldier to get off of her; however, he covered her mouth until she was able to push him off of her. The Veteran stated that she reported what happened to the sergeant the next day and was "not told to go to the doctor for a rape test" (so she did not go). She also stated that she was threatened by the other male soldiers to drop the matter, which she did because she was scared. The Board acknowledges the Veteran's statements that she dropped the matter after initially reporting it because she was scared (i.e., that such assaults may go officially unreported); thus in July 2009, VA solicited from the Veteran any alternative evidence tending to corroborate the allegation that an in-service personal assault occurred. The Veteran has provided no such evidence. In a November 2010 statement, the Veteran recalled that the male soldier had raped her and she reported the incident to a 1st sergeant and a captain. She also stated that "after the incident [she] had [an] abortion." The Board has closely reviewed the Veteran's personnel records from her period of active duty and reserve service for any suggestion whatsoever that the alleged event occurred, including any possible behavior changes evidenced by the Veteran, and it has found no such evidence. The record indicates that the Veteran served in Germany from September 1983 to February 1985 and, in April 1985, she was "ADVANCED TO: SPECIALIST FOUR E-4." [Notably, a February 1988 Memorandum, Letter of Instruction - Unexcused Absence, notes that she was absent from Unit Training on January 23, 1988 and that, unless the absence was excused, she would have 9 unexcused within the year period. This Memorandum is dated during her reserved service, after her discharge from active duty service.] The Veteran has consistently claimed that she reported the alleged assault to her supervisor (and subsequently withdrew the matter); her personnel record contains no evidence that such a report occurred (or was withdrawn). The Board observes no suggestion of behavioral problems in service. To the contrary, in April 1985, the Veteran was promoted to Specialist Four, E-4. Thus, the service personnel records do not substantiate the Veteran's alleged in-service stressor. The issue of service connection for PTSD turns on whether the Veteran was exposed to a stressor. Despite the references in the record from medical providers of the Veteran's military sexual trauma, there are sufficient inconsistencies to question her credibility. It is the Board, not the examiner that determines credibility. See Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (explaining in footnote 1 that even in the context of a claim of entitlement to service connection for PTSD based on a personal assault stressor the Board is not required to accept a physician's PTSD diagnosis as proof of the occurrence of a stressor but rather is to weigh all evidence of record in making its own determinations). The Veteran has reported having had an abortion as a result of the rape in service. However, her STRs show that she had been prescribed birth control pills and, approximately 1 1/2 years after the alleged incident, she reported having had no pregnancies, miscarriages or abortions. In light of these inconsistencies in her statements, the Veteran is not found to have presented credible lay assertions in this case. Thus, although VA medical providers have concluded the Veteran has PTSD, these have been predicated on a stressor that has not been verified. That is not to say that a medical professional's opinion is without probative value concerning the occurrence of an in-service stressor; it can be. See Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). In reviewing that medical evidence, however, the Board must not abandon its adjudicative duties. VA has previously acknowledged that "[i]n diagnosing PTSD, doctors typically rely on the unverified stressor information provided by the patient. Therefore, a doctor's recitation of a veteran-patient's statements is no more probative than the veteran-patient's statements made to VA." 67 Fed. Reg. 10330. Although somewhat unavoidably circular in logic, due to the language of the regulation, if, taking into account the corroborative value of the medical professional's opinion, the Board finds that the alleged in-service stressor did not occur, then the ensuing conclusions reached by that medical professional are of limited probative value themselves. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). In reviewing the evidence as a whole, the Board finds as fact that the Veteran has not established a credible, in-service stressor. Thus, the Veteran cannot meet the criteria for service connection for PTSD. Accordingly, entitlement to service connection for PTSD is not warranted. 38 C.F.R. §§ 3.303, 3.304. Turning to the question of entitlement to service connection for a psychiatric disorder other than PTSD, there is no evidence that the appellant suffered from a psychosis that was compensably disabling within a year of her separation from active duty in April 1986. 38 C.F.R. §§ 3.307, 3.309. Accordingly, service connection on a presumptive basis is not warranted. Because the Veteran's alleged in-service stressor is not credible, any statements asserting continuous symptoms of psychosis are likewise of limited to no probative value, since the statements with respect to the alleged incident are not credible. For these reasons, service connection for a psychosis based on the theory of continuity of symptomatology is not warranted. The first time there is documented evidence of psychiatric symptoms is in 2004-which is approximately 18 years after service discharge. This 18-year gap is evidence against the claim. Such a "prolonged period without medical complaint" is a factor that the Board weighs against the credibility of the Veteran's report. See Maxson v. Gober, 230 F.3d 1330, 1333 (2000). The Board has already determined that the in-service stressor alleged by the Veteran is not credible. This is the only in-service incident that has been the basis for the diagnosis of major depressive disorder and depression. Because the Board does not find that the in-service incident is credible, the Veteran's non-PTSD psychiatric diagnoses cannot be related to service. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (noting that the Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate). As to the diagnoses of alcohol dependence and cocaine and marijuana abuse, governing statutes (38 U.S.C.A. § 105(a), 1110) prohibit payment of compensation where the "disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs." After rejecting the arguably favorable medical evidence because it is based on a history that is not credible, only the appellant's statements remain in support of her claim that a psychiatric disorder is due to service. The Veteran herself is competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, as to the specific issue in this case, diagnosing PTSD or another psychiatric disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the foregoing, the Board finds that the preponderance of the credible and most probative evidence is against the claim. Hence, the claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ORDER Service connection for an acquired psychiatric disability, to include PTSD, is denied. _________________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs