Citation Nr: 1331414 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-03 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from July 29, 1974 to October 29, 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, a video conference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. The Board also notes that in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran's service treatment records are negative for complaints, findings, or diagnoses of psychiatric disabilities. 2. There is no competent and credible evidence that the claimed stressor occurred, and the probative evidence does not establish that the Veteran suffers from a psychiatric disorder that is related to a credible or corroborated in-service stressor. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). VCAA notice was provided in January and April 2008 letters. The letters provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The January 2008 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. In any event, neither the Veteran nor his representative has alleged or demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant, including service treatment and personnel records, post-service treatment records (VA and private), and Social Security Administration (SSA) records. VA has not provided the Veteran an examination in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). Nevertheless, a medical examination or medical opinion is not necessary to decide the claim. While there is evidence of a current psychiatric disorder, albeit a variously diagnosed psychiatric disorder, there is no record of a psychiatric disorder or complaints relative thereto during service or for many years after service. Also, there is no credible supporting evidence that the Veteran's alleged in-service stressor occurred to support the diagnoses, which is a requirement for establishing service connection for the disorder. As even the low standard threshold as to when a nexus examination is necessary as endorsed by the United States Court of Appeals for Veterans Claims (Court) in McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) is not met, the Board finds that a remand for such action is not necessary. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam). The Veteran was also afforded a hearing before the undersigned Veterans Law Judge (VLJ) at which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. During the hearing, the VLJ identified the issue and asked specific questions directed at identifying whether there was evidence that would help substantiate the Veteran's claim. In addition, the Veteran volunteered his pertinent service history. The appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), and he has not identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that no further action pursuant to Bryant is necessary and the appellant is not prejudiced by a decision at this time. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the appellant. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2013). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2013); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred, unless the stressor is related to combat or to a veteran's fear of hostile military or terrorist activity perpetrated by a member of an enemy military or by a terrorist. 38 C.F.R. § 3.304(f) (2013); see also 75 Fed. Reg. 39,843 (2010); Hall v. Shinseki, 717 F.3d 1369, 1372 (Fed. Cir. 2013). If a PTSD claim is based on in-service personal/sexual assault, evidence from sources other than a 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. In a claim for PTSD based on in-service personal/sexual assault, VA must advise 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. 38 C.F.R. § 3.304(f). The Veteran was notified of these alternative types of evidence in the RO's April 2008 letter. The Veteran asserts that he has PTSD and depression as a result of a sexual assault that occurred during basic training. Specifically, he alleges that after injuring his right leg/ankle during calisthenics, he sought treatment at the infirmary, then was sent to the Army hospital emergency room for x-rays. He stated that after completing the required forms, he was drugged and sexually assaulted by a doctor at the hospital who gave the pretense of attempting to alleviate the Veteran's symptoms. The Veteran's service treatment records reflect no complaints or diagnosis of PTSD, anxiety, depression or any other acquired psychiatric disability. An October 9, 1974 clinical record noted the Veteran was referred with a primary diagnosis of drug abuse for evaluation. It was noted that he started using opium at the age of 15, and since then his drug habit had expanded to the use of barbiturates, depressants, cocaine, cannabis sativa, psychostimulants, hallucinogens and glue sniffing. He claimed to smoke marijuana every chance he had. It was indicated that the stress of military life was exacerbating his drug problem. It was recommended he be entered into the rehabilitation program and that he be discharged from active service. On October 1974 separation examination report, psychiatric clinical evaluation was abnormal for "[i]mproper use of opium, opium alkaloids and their derivatives; synthetic analgesics with morphine-like effects; barbiturates, hypnotics and sedatives or tranquilizers; cocaine; cannabis sativa; psychostimulants; hallucinogenics; and glue . . . [d]ependence on cannabis sativa." He reported frequent trouble sleeping and loss of memory or amnesia, but denied nervous trouble of any sort. He did not respond to whether he had or had experienced depression or excessive worry. His October 1974 separation examination report did note a history of questionable trick right knee, but he had no antalgic gait, negative drawer sign, and negative McMurray testing; he also reported cramps in his legs. He denied foot problems. His service treatment records are otherwise negative for any sign or indication for treatment relating to his right leg/ankle during active service. His DD Form 214 includes a remark that he failed to meet established physical standards (no disability). Post-service evidence of record includes treatment records from the Maine Medical Center, including a July 1977 report noting his complaint of feeling depressed and that he has been drinking heavily the past three years. An October 1977 report noted he had a recent suicide attempt with sleeping pills. An August 1977 Augusta Mental Health Institute report noted the Veteran's complaint of being depressed and wanting help with his drug abuse. He related that his drug use started prior to his active service and during his active service he used "just about anything I could get my hands on" (e.g., morphine, heroin, barbiturates, downers). An August 2, 1977 Togus, Maine VA Medical Center (VAMC) treatment record noted the Veteran was seeking hospitalization because he was taking a lot of illicit drugs at home and he was afraid of getting into trouble by keeping up that habit. He related he was off drugs when he went into the Army, but the supply in the Army was "plentiful" and he started on them again (emphasis added). He was hospitalized from September 2, 1977 to September 29, 1977 for substance abuse. At presentation, he was overheard stating that the reason he was seeking admission was because he had no place to stay. It was noted that "he did say the right things" and was admitted. During his hospitalization, he was entered into intrusive group therapy. After being confronted, he admitted the only reason he was staying in the hospital was to obtain 100 percent service-connected disability for his excessive use of drugs, believing that due to his service experience with drugs he was "messed up." He also admitted to using drugs prior to his active service. SSA records include a March 1990 treatment record from Westbrook Community Hospital wherein the Veteran gave a history of use of several types of drugs. The assessment was chemical dependency on narcotics, with past abuse of multiple substances, and adjustment disorder with anxiety prevalent. April 1990 Togus VAMC treatment records note a valid Minnesota Multiphasic Personality Inventory (MMPI) test revealed prominent features of anxiety and depressive symptoms with compulsivity. He was hospitalized form April 11, 1990 to May 1, 1990 for prescription drug abuse. A March 1992 Togus VAMC treatment record noted the Veteran was admitted to the detox unit for alcohol and heroin abuse. He provided a history of his substance abuse, indicating that he began drinking alcohol at the age of 14 or 15. His drug use began in his teen years, beginning with marijuana, and progressing to diet pills and barbiturates. An April 2005 Togus VAMC treatment record provided an assessment of depression/anxiety, stable. October 2005 PTSD screen testing was negative. In an October 2005 primary care report, the Veteran reported being sexually assaulted in the military. In a December 2006 mental health report, the Veteran reported mental health difficulties since his active service, relating he was sexually assaulted in service and hid the assault from everyone. The instant claim for service connection was filed in January 2008. He reported he was raped in an emergency room at Ft. Dix while under anesthesia. In an April 2008 stressor statement, the Veteran reported he went to the emergency room at Ft. Dix to have his right ankle looked at. He filled out the initial paper work, went outside to get some air, and talked to a doctor on a bench. The doctor offered to give him something for the pain and took him to a room where he was given an injection and he lost consciousness. Upon waking up, he thought he was raped. The listed date of the event was August 1973. A June 2008 Togus VAMC primary care report noted the Veteran's complaint of depression and anxiety. A November 2008 mental health report noted the Veteran's complaint of being very depressed. He reported he has PTSD from being drugged and raped in-service. In an April 2009 report, the Veteran again reported he encountered a doctor at Ft. Dix that administered a drug and he lost consciousness. When he woke up, he noticed sperm on his clothing and left and went back to the barracks. While taking a shower, another solder noticed his genitalia was red and accused him of sexual activity. He denied ever reporting the incident. He related that a friend advised him that if he said he was addicted to drugs, he would be discharged, and so that is what he did. A May 2009 report provided an assessment of chronic social anxiety and depression. A November 2009 mental health report noted the Veteran's complaint of feeling down most days due to his military sexual trauma in boot camp. It was noted by the psychologist that the Veteran's described symptoms during the interview sounded like PTSD. In a March 2010 lay statement from the Veteran's brother, it was stated that the Veteran's attitude and personality changed after his active service, including isolating himself from others. At a June 2012 Decision Review Officer (DRO) hearing, the Veteran testified that he was given a shot by the doctor at Ft. Dix for his right ankle, and afterwards he went back to the barracks to take a shower. One of the soldiers pointed out his genitals were red and inflamed, and the Veteran knew then someone had done something to him. He also testified that he received advice from a friend in service of ways to receive an early discharge, and so he used one of the options provided. He stated he has been depressed and secluded himself since his discharge. At the January 2013 video conference hearing, the Veteran testified that he twisted his right leg during calisthenics. He stated he went to the infirmary, where he was for about 1 1/2 hours, then was sent to the emergency room for an x-ray. He stated that no one was working in the emergency room, so he went outside to get some fresh air, where he met a doctor who took him back inside to examine his leg. He stated the doctor gave him a shot and he was placed in an air cast. He stated he went right back to the barracks and took a shower. Another soldier questioned whether he had been ejaculating in the shower because his genitals were inflamed. He testified that the doctor had to have played with him, and he got in a fight with the other soldier. He denied ever reporting the incident to anyone. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied 523 U.S. 1046 (1998). In making all determinations, the Board must fully consider the lay assertions of record. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board has carefully considered the Veteran's assertions in this matter, but ultimately concludes that such assertions are not persuasive or credible. While the Veteran contends that he initially sought treatment at the Army hospital at Ft. Dix for an injury to his right leg/ankle, there is no evidence in the service treatment records for treatment or complaints concerning the right ankle or leg. There is a notation of questionable trick right knee, but physical examination revealed no abnormality. Notably, post-service VA and private treatment records include multiple reports that his drug use during active service was because drugs were "plentiful", and that he used "just about anything I could get my hands on". There is no indication that such substance and drug abuse was due to a military stressor, but was instead a continuation of his substance and drug use that existed prior to his active service, as reflected in post-service VA and private treatment records by his accounts. Interestingly, VA and private treatment records, while documenting the Veteran's complaints of depression and anxiety, show no reference to being sexually assaulted in the military until an October 2005 VA primary care report. The Board finds the absence of any mention of the alleged stressor until October 2005 to be significant because the Veteran had previously sought treatment for multiple ailments, and was quite focused on obtaining 100 percent compensation during his 1977 hospitalization. It is unlikely that he would not have mentioned such incident in some form so as to support his claim at that time. The Board also finds significant that when the Veteran first mentioned the military sexual trauma, no specific details were provided. Further, in an April 2008 stressor statement, he reported he lost consciousness and upon waking up, he thought he was raped. However, in an April 2009 report, he reported that after losing consciousness and waking up, he noticed sperm on his clothing and then went back to the barracks. And at the June 2012 DRO hearing, he testified that he went back to the barracks after the injection to take a shower, and after another soldier pointed out his genitals were red and inflamed, he knew then that someone had done something to him. The stressor report itself has changed from his initial report of military sexual trauma, to a detailed account of how the sexual trauma occurred, with differing accounts of when he noticed/suspected he was sexually assaulted. In addition, his testimony suggests that the entire incident occurred in the space of about an hour. Thus, he presented to the emergency room, was rendered unconscious, regained consciousness, and immediately went back to the barracks and took a shower, notwithstanding the fact that he had been placed in an air cast and was on crutches. Such seems unlikely. Moreover, his initial allegation was that this incident occurred in August 1973, yet he was not in service until 1974. Also, the record reflects a lack of veracity at times. For example, the September 1977 hospitalization notes he "said all the right things" to get admitted to the hospital for substance abuse treatment, yet finally admitted the only reason he was staying at the hospital was to obtain 100 percent service-connected compensation. He stated he never asked anything from VA, yet he actually did file a claim for service connection for drug and alcohol abuse in 1977 and a claim for pension in 1992. He has also had significant substance abuse problems, which included hallucinations in 1977 and notations in 1992 that he hallucinated while using, was paranoid and he had a "vision from his higher power" that encouraged him to seek treatment. Such things raise a serious question as to the reliability of his recollections. In short, the record reflects inconsistencies in the stressor reports from the initial statement of military sexual trauma to a detailed account of how the sexual trauma occurred and differing accounts of when he noticed/suspected he was sexually assaulted. He provided inaccurate information during his hospitalization in 1977 for purposes of personal gain, and has shown a disregard for laws in the past with his extensive use of illegal substances and trafficking in such (as noted in a December 2006 VA treatment report). He contends he lied about using drugs to military personnel in service so he could be discharged, yet admitted extensive use in service to treating clinicians. Moreover, he first reported this in-service incident in approximately 2005, more than 30 years after his service, and after a history of heavy substance abuse, experiencing hallucinations and a "vision", and experiencing symptoms of paranoia. He has indicated the incident occurred in August 1973, but he was not in service at that time. Further, the Veteran's report of a completely empty emergency room and being drugged, assaulted, and regaining consciousness all in the space of about an hour, then returning to the barracks and showering immediately despite having been placed in an air cast, seems improbable. For the reasons noted above, the Board finds the Veteran's assertions concerning his claimed stressor are simply not credible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (the significant time delay between the affiants' observations and the date on which the statements were written, the lack of contemporaneous medical records ,and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). The Board has also considered the statement from the Veteran's brother, but notes the statement is being rendered decades after the Veteran's service and does not provide observations of the Veteran during service. The Board finds the records more contemporaneous to service to be more probative. In summary, the Board finds that the preponderance of the competent and credible evidence is against a finding that the Veteran's claimed in-service stressor occurred. Although the November 2009 VA psychologist noted the symptoms described by the Veteran during the interview sounded like PTSD, the Board does not find this speculative diagnosis probative in the absence of a credible or confirmed stressor. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general, or inconclusive cannot be used to support a claim); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "an opinion based upon an inaccurate factual premise has no probative value"). Likewise, any medical opinion linking a diagnosis of PTSD or other psychiatric disorder such as depressive disorder, anxiety disorder, or adjustment disorder, to his claimed stressor has no probative value. For the reasons set forth above, the Board finds that the preponderance of the evidence is against the Veteran's claim, and service connection is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs