Citation Nr: 1331063 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-34 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) due to military sexual trauma. REPRESENTATION Appellant represented by: Mr. Sean Kendall, Attorney at law ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran had active service from June 1974 to March 1976. This matter comes to the Board of Veterans' Appeals (Board) from a February 2013 Order by the United States Court of Appeals for Veterans Claims (Court), which endorsed a February 2013 Joint Motion for Remand, vacated an April 2012 Board decision denying entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and remanded the matter for action complying with the joint motion. As a matter of background, the matters were initially before the Board on appeal from a January 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the claim on appeal. In April 2012, the Board denied the Veteran's claims for service connection for an acquired psychiatric disorder. The Veteran appealed the Board's decision to the Court. In the February 2013 Joint Motion, the parties argued that the Board failed to consider the medical opinion evidence of record in accordance with the United States Court of Appeals for the Federal Circuit (Federal Circuit) holding in Menegassi v. Shinseki, 639 F. 3d 1379 (Fed. Cir. 2011). The parties argued that the Veteran's claim should be remanded in order for the Board to reconsider evaluate those medical records that possibly indicating that the Veteran was diagnosed with PTSD, at least in part, due to an in-service sexual assault, as part of the weight and assessment of the preponderance of the evidence. The Board notes that the record reflects that since the matter has returned from the Court, the Veteran submitted additional relevant evidence to the Board. No subsequent supplemental statement of the case (SSOC) was issued, but this is not necessary because the subsequent July 2013 statement from the Veteran's representative specifically waived initial review by the agency of original jurisdiction in accordance with 38 C.F.R. § 20.1304 (2013). The Veteran has a filed a claim for service connection for lung cancer. See a March 2010 correspondence. Although it appears that the Agency of Original Jurisdiction (AOJ) has initiated the evidentiary development of the claim, it has not yet been originally adjudicated. As such, it is not currently on appeal and it is referred back to the AOJ for appropriate actions. FINDINGS OF FACT 1. The record does not include credible supporting evidence verifying the occurrence of the Veteran's claimed in-service stressors to support the current diagnosis of PTSD. 2. The preponderance of the evidence is against finding that the Veteran's other diagnosed psychiatric disabilities, including major depressive disorder and bipolar disorder, are etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, VA sent a letter to the Veteran in October 2008 that addressed the notice elements concerning his claims for service connection. The letter informed the Veteran of what evidence is required to substantiate the claims, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. In addition, the letter advised the Veteran that evidence from sources other than his service records may constitute evidence of an in-service personal assault and allowed him to furnish this type of evidence or advise VA of potential sources of such evidence, pursuant to the requirements of 38 C.F.R. § 3.304(f)(5). The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the Veteran has been continuously represented throughout the appeal period, by either a Veteran Service Organization or a private attorney, and his representatives have submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary to establish entitlement to service connection. Thus, the Board finds that the Veteran demonstrated actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, The Veteran's service treatment records and VA medical records are in the file. Private records identified by the Veteran as relating to the claim have been obtained, to the extent possible. Furthermore, the Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. In addition, records indicate that the Veteran is in receipt of Supplemental Security Income (SSI) benefits from the Social Security Administration (SSA). In general, VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits, and there is a potential that such records are relevant to the Veteran's claim. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In this case, however, the records clearly indicate that the Veteran's benefits were granted based primarily or exclusively on an unrelated bilateral eye disability and there is no indication in the record that the Veteran's claimed PTSD or other psychiatric disability played any role in the benefits determination. As will be discussed, the medical evidence of record clearly demonstrates that prior to his award of SSA benefits, which was effective from September 2003, the Veteran's sole treatment for psychiatric problems was for depression secondary to physical disabilities. Moreover, the Veteran has stated that he did not feel comfortable talking to other individuals about his claimed in-service assaults until some period after he began treating with a VA social worker, B-R J., in 2003. As will be discussed in greater detail below, the Veteran did not even raise his claimed in-service assaults until several years after 2003. Therefore, the Board concludes that a remand to obtain SSA records for the period that based on the award of benefits would encompass the years from 2003 and earlier would be of no possible benefit to the Veteran. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). With respect to the claim for service connection for PTSD, as discussed in more detail below, the relevant and determinative issue of the claim is corroboration of the alleged in-service stressors. An examination would at best afford a diagnosis of PTSD, but would not confirm that the alleged stressors actually occurred. Therefore, it would be futile to delay appellate consideration of this claim to develop evidence that is not determinative and would not substantiate the claim. The Board acknowledges that in cases involving claimed in-service personal assault that 38 C.F.R. § 3.304(f)(5) allows for the Board to submit any evidence it receives to an appropriate medical or mental health professional for an opinion as to whether the evidence indicates that a personal assault occurred. In this case, however, the sole evidence of record are the Veteran's assertions and, as will be discussed in greater detail below, the Board finds that these assertions are not supported and, indeed, are contradicted by the contemporaneous evidence of record, as well as other subsequent statements by the Veteran. As such, the Board concludes that an opinion from a medical or mental health professional is not warranted in this case. As to the claim for service connection for any other psychiatric problems, VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be discussed in greater detail below, the Board believes that there is no credible evidence suggesting an association between any current psychiatric disability and any event, injury, or disease in service. Thus, VA is not required to provide the Veteran with a VA examination in conjunction with this aspect of the claim. Thus, the Board finds that VA has satisfied the duty to assist the Veteran. In the circumstances of this case, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 2. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may 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). Service connection for certain chronic diseases, including psychoses, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, PTSD and depression are not classified as psychoses. Moreover, the Veteran was not diagnosed with bipolar disorder until many years after service. As such, service connection on a presumptive basis is not warranted. To prevail on the issue of 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. PTSD The Veteran claims that he has current PTSD due to his military service, and in particular, a military sexual trauma. Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). The Veteran alleges that he was caught masturbating by his superior officer during the Thanksgiving holidays in 1974 and that he took a picture of the Veteran. Thereafter, he forced the Veteran to perform sexual activities with him by threatening to put him in jail and have him dishonorably discharged. The Veteran asserts that the abuse continued until his discharge in March 1976. In addition, the Veteran states that the superior officer used intimidation to force himself on the Veteran and that he forced the Veteran to engage in sexual activities with other male officers. A review of the medical shows that a current diagnosis of PTSD. Those records also reflect that the Veteran's treating medical professional have linked the Veteran's current PTSD diagnosis to his alleged inservice military sexual trauma. The crux of the Veteran's claim for service connection for PTSD rests on whether the evidence of record is at least in equipoise on the actual occurrence of his claimed military sexual trauma. See 38 C.F.R. § 3.304(f). If a veteran's claimed stressors are not related to combat, then corroborative evidence of his claimed inservice stressors must be introduced. A veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and that testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). Service department records must support, and not contradict, the veteran's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). In Patton v. West, 12 Vet. App. 272, 278 (1999), the Court specified that there are special evidentiary procedures for PTSD claims based on personal assault. VA ADJUDICATION MANUAL M21-1MR, Part IV, subpart ii.1.D.17. Since personal trauma is an extremely personal and sensitive issue, many incidents of personal trauma are not officially reported, and the victims of this type of inservice trauma may find it difficult to produce evidence to support the occurrence of the stressor. It is often necessary to seek alternative evidence. Id. Further, with respect to a claim of entitlement to service connection for PTSD based on an alleged personal assault, 38 C.F.R. § 3.304(f) (4) provides that: If a posttraumatic stress disorder 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 will not deny a post- traumatic stress disorder claim that is based on inservice 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. 38 C.F.R. § 3.304(f) (5). The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor). However, the Federal Circuit also said that any such medical opinion must still to be weighed by VA along with the other evidence provided. See Menegassi, 683 F.3d at 1382, n.1.; see also 67 Fed. Reg. 10,330 (Mar. 7, 2002) (VA is not required to accept a doctor's diagnosis of PTSD due to a personal assault as proof that the stressor occurred or that the PTSD is service connected.) The Board will first discuss whether the Veteran's service department records corroborate his alleged inservice military sexual trauma. The Veteran's service personnel and service treatment records are silent as to any complaints of sexual assault. The service treatment records do not indicate requested testing for sexually transmitted diseases or other physical or psychological problems that could be associated with the claimed assaults. In addition, the Veteran's personnel file does not show a history of poor work performance after the onset of the claimed assaults, requests for transfer, or other manifestations of psychological problems due to the claimed assaults. Indeed, the Veteran's personnel records include multiple letters of appreciation for outstanding performance. The first letter is dated in August 1974, prior to the claimed onset of the assaults, and the final two letters, from May 1975 and September 1975, were after the claimed onset. Potentially significantly, neither the May 1975 nor the September 1975 letters were signed by the claimed assailant who was the Veteran's supervisor or one of the other officers with whom the Veteran claims to have been forced to engage in sexual activities. The Veteran's November 1975 performance review, signed by the claimed assailant and others, was effusive in its praise of the Veteran's work performance, recommended immediate promotion, and stated, "There is no doubt in my mind that this soldier will someday be a Sergeant Major." As to specific areas of evaluation, the evaluation gave the Veteran the highest mark in all categories. As noted, the service treatment records do not include complaints, treatment, or diagnosis of psychiatric problems in service, nor does the Veteran contend that he sought such treatment. Otherwise, in July 1975 the Veteran sought treatment after losing his glasses. Following examination, the Veteran was referred to ophthalmology. Subsequent September 1975 and December 1975 records included a diagnosis of retinitis pigmentosa and the December 1975 record concluded that the Veteran's long term prognosis for visual retention was very poor. In March 1976, the Veteran received a medical discharge for his retinitis pigmentosa. The medical records do not indicate that the discharge was at the request of the Veteran. Indeed, in subsequent statements in pursuit of VA treatment or compensation benefits the Veteran stated that he felt he was unfairly forced or "tricked" out of the military due to his eye problems and that he was told he needed to adjust to going blind. The Board finds it highly significant that even when afforded an opportunity to leave the military, which would necessarily end the claimed abuse, not only did the Veteran resist the chance to leave but, indeed, years later he still was bitter based on his perception that he was forced out of the military. The Board has considered the arguments of the Veteran's representative that the glowing review in November 1975, the Veteran's contention that he was scheduled to be transferred to Germany, and the subsequent medical discharge that occurred without worsening of symptomatology of the eyes is highly suspicious and evidence in support of his claim that the in-service sexual abuse occurred. The Board finds it significant, however, that the Veteran on multiple occasions has argued that his preexisting eye disability was permanently aggravated by service and has submitted evidence in support of that contention. Prior RO and Board decisions ultimately concluded that the most probative evidence of record indicated that the Veteran's retinitis pigmentosa was not aggravated by service beyond the natural progression of the disease. As such, given the Veteran's former contentions it seems rather disingenuous of the Veteran's representative now to argue that the Veteran's vision did not significantly worsen at all during service. Even more significantly, the December 1975 medical evaluation report makes clear that the Veteran's long term vision prospects were very poor. Thus, the evidence clearly establishes that the Veteran's medical discharge was due to a preexisting condition with a very poor prognosis for long term visual retention, rather than that the eye problems were merely a pretext for some nefarious or retaliatory actions of a superior officer. Statements from the Veteran during VA treatment support this conclusion, as the Veteran has indicated that he was told the discharge was to allow him time to adjust to going blind. The fact that to this point the Veteran fortunately has not gone blind does not invalidate the basis for the discharge, as the medical evidence at the time showed a very poor prognosis for long term vision. Thus, the Veteran's in-service personnel and medical treatment records do not support his claim. The records show a pattern of excellent service both prior and subsequent to the claimed onset of the sexual assaults. The Veteran's personnel records do not indicate poor performance appraisals, excessive tardiness or absence, or requests to change shifts, or living arrangements, nor does the Veteran allege any of the foregoing. The Board acknowledges the contention that the Veteran either requested or was shortly scheduled for a transfer to Germany, but the records do not support that allegation. The Veteran's separation examination in December 1975 indicated a normal psychiatric examination and the records otherwise include no complaints of psychiatric problems. In short, the service treatment and personnel records are devoid of any findings consistent with the alleged sexual assaults or any psychiatric problems and the Board must look to whether any other evidence of record corroborates the Veteran's alleged military sexual trauma. The Board has considered whether evidence from other sources corroborates the Veteran's claimed military sexual trauma. As noted above, 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 may also be used to corroborate stressors. 38 C.F.R. § 3.304(f)(5). In this case, the Veteran has neither alleged nor submitted any evidence that could assist the RO in verifying any of his alleged in-service stressors. The Veteran claims to have sought medical treatment at the University of Louisville Hospital in 1976 and 1977, but the facility could not locate any records of the claimed treatment. The Veteran does not contend that he reported the claimed incidents to law enforcement authorities in service or was tested for sexually transmitted diseases in service. The Veteran has not submitted statements in support of his claim from any family or friends. The first medical evidence of treatment for psychological problems was in August 1998 when the Veteran sought treatment for cocaine abuse/dependence and alcohol abuse. At that time, the Veteran did not report any in-service sexual assaults. In May 2003, the Veteran denied previous psychological testing, treatment, or diagnoses. At that time, he reported leaving home at age 13 due to an abusive home environment, but did not report in-service assaults. The treatment provider diagnosed PTSD due to childhood abuse and substance abuse. In approximately July 2003, the Veteran began treatment with a new social worker. Initially, the social worker diagnosed depressive disorder due to the Veteran's medical condition, primarily his diagnosis of AIDS, and grief and loss. At that time, the Veteran did not report any in-service assault. In October 2003, the treatment provider first noted that the Veteran had untreated PTSD, but not the basis for the diagnosis. During a private psychiatric assessment in December 2005, the Veteran reported that his father had molested him for 2 years, beginning at age 8. The Veteran did not report in-service assaults. The examiner diagnosed bipolar disorder, type I, with paranoid features, male orgasmic disorder, and PTSD. An October 2008 VA treatment record shows diagnoses of PTSD and major depressive disorder. The record includes a notation of a history of sexual trauma, but not a specific indication as to the nature and circumstances of the trauma reported. It was not until 2009 that the mental health treatment records specifically reported in-service sexual trauma. Those records exclusively diagnose the Veteran with PTSD. Later treatment records show that the Veteran attended groups and private counseling sessions that specialized in men's military sexual traumas. The record also contains medical statements from two of the Veteran's treating VA medical providers, a clinical psychologist and a social science specialist. See September 2012 and October 2012 VA mental health treatment notes. In both of these medical statements, the VA medical providers state that they are writing in support of the Veteran's claim for PTSD due to military sexual trauma based on the Veteran's reported history during his VA treatment sessions. Neither VA medical professional indicated that they had reviewed the Veteran's claims folder at any point. In particular, the VA psychologist stated that during the Veteran's treatment sessions with from February 2010 to December 2010, the Veteran "disclosed and processed severe repeated experiences of military sexual trauma as well as his experience of childhood abuse." The VA psychiatrist further noted that based on her expertise and training with treating those with military sexual trauma, it was not uncommon for discrepancies to occur between what was documented in a veteran's service records and their reported experiences, especially when the abuser held a position of authority over a veteran. The VA psychiatrist further noted that it was also common for "veterans who have experienced military sexual trauma to proceed to engage in behavior that will successfully remove themselves from the unsafe environment at any cost, to include seeking discharge." See September 2012 VA treatment note The Federal Circuit has made plain that, in the context of a PTSD service connection claim based on in-service personal assault, a favorable medical evidence diagnosing PTSD based on the Veteran's account of in-service assault must be weighed against all other evidence of record when determining whether ca claimed in-service personal assault has been corroborated. See Menegassi, 638 F.3d at 1382 n.1. The Veteran is competent to relate the information as he remembers it; thus, his competency is not at issue with regard to recounting the events. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Rather, it is his credibility which the Board finds is lacking and is outweighed by the evidence in his service personnel records that contradicts his current assertions as well as other, more contemporaneous histories presented by the Veteran on other occasions that were not for compensation purposes, including for treatment purposes. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) In this regard, the Veteran's personnel and treatment records do not support the Veteran's claimed in-service assaults and, if anything, show a continuity of excellent performance and conduct both prior and subsequent to the claimed onset of the sexual assaults. As discussed above, the Board does not find persuasive the arguments of the Veteran's representative that the evidence suggests the Veteran's medical discharge was retaliatory or otherwise a pretext for discharge. As outlined above, the Board finds it significant that prior to filing his claim for service connection for PTSD, the Veteran expressed displeasure at being "tricked" out of service due to his eye problems, which suggests he had a strong desire to stay in the military and does not show any desire to seek a discharge - unlike the VA psychiatrist's experience with other veterans. Moreover, prior to the Veteran's August 2008 VA claim for service connection for PTSD, on various occasions when presenting a medical history, he made no references to having been assaulted during service. Such statements in the context of presenting medical histories for examination or treatment purposes are not an absence of evidence, such as absence of the creation of any treatment records, but constitute affirmative evidence of denials of the occurrence of such in-service personal assault. The Board finds these 2003 to 2008 VA treatment records made contemporaneously during the course of seeking medical treatment are more reliable and credible than subsequent statements that he had been assaulted during his military service. See Buchanan, 451 F. 3d 1331, 1337 (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility). The Board finds that the reports by the Veteran to his treating VA medical providers are not credible. As such, the VA medical records that reflect a diagnosis of PTSD due military sexual trauma that are based upon an inaccurate factual premise of personal assault having occurred in service is not to be accorded any probative weight. Here, in this case, his recounting to the medical professionals, including his treating VA psychiatrist, does not qualify as credible supporting evidence or other indicia that the claimed in-service stressful personal assault did in fact occur. The Board again notes that all the evidence of record has been considered in determining whether there is corroboration. However, as in Menegassi, the Board has weighed all of the evidence including the Veteran's statements and the post service opinions of mental health professionals and concluded that the weight of the evidence is against a finding of PTSD based on an in service stressor. For these reasons, the Board finds that the weight of the evidence demonstrates that the alleged military sexual assault did not occur. Given the lack of a verified stressor, a preponderance of the evidence is against service connection for PTSD. Under these circumstances, the Board must conclude that the Veteran has not met the regulatory requirements for service connection for PTSD, and that, on this basis, his claim must be denied. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Acquired Psychiatric Disorders, Other than PTSD The medical evidence of record also shows that the Veteran has been diagnosed with multiple disorders, including bipolar disorder, major depressive disorder, and alcohol and cocaine dependence. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Initially, with respect to the Veteran's diagnosed polysubstance dependence or abuse, the Board notes that with respect to claims filed after October 31, 1990, service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C.A. §§ 105, 1131 (West 2002); 38 C.F.R. § 3.301(a) (2011); VAOPGCPREC 2-98 (February 10, 1998). Where the law and not the evidence is dispositive, the claim of service connection for polysubstance dependence or abuse is denied because of lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). With regards to the Veteran's other diagnosed psychiatric disorders, the Board acknowledges that regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d). In that regard, the record is negative for any complaints or findings of any psychiatric disorder in service, or of any psychosis having manifested within one year of separation. In addition, although the Veteran has identified several in-service stressors that he believes led to PTSD, there is no credible lay evidence of actual psychiatric symptomatology manifested while he was on active duty. While the Veteran claims to have sought treatment for psychiatric problems shortly after separation from service, as discussed, such records could not be located. The medical treatment of record indicates that in 1998 when the Veteran sought treatment for psychiatric problems the primary basis was for depression regarding health problems, including AIDS, as well as due to grief and loss. Thus, to any extent the Veteran now claims to have experienced psychiatric problems beginning in service, the Board finds the contemporaneous medical evidence showing a normal psychiatric examination at his separation examination significantly more credible and probative than statements made multiple decades after service and in furtherance of a claim for disability benefits. No medical professional has linked the Veteran's psychiatric disorders other than PTSD to his military service or experiences therein. As discussed above, the medical diagnoses other than PTSD were based on reported symptoms that did not include the claimed in-service assaults or other incidents of service. As there is no competent evidence otherwise linking any current psychiatric disorder to military service, the Board finds that the preponderance of the evidence is against granting service connection for any other psychiatric disorder. In summary, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs