Citation Nr: 1332007 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 05-36 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran had active duty service in the Army from May 1989 to September 1991. The record shows that she served in the National Guard from September 1991 to September 1993 during which time she had periods of inactive duty training (IDT). This matter comes before the Board of Veterans' Appeals (Board) from a June 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Seattle, Washington, which denied service connection for posttraumatic stress disorder (PTSD). Claims for service connection for psychiatric disabilities, including PTSD, may encompass claims for service connection for all diagnosed psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board has recharacterized the issue to comport with the evidence. In February 2009, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the claim file. In response to a September 2011 Supplemental Statement of the Case (SSOC) the Veteran submitted a VA Form 9, with attachments, in which she requested a Video Conference Hearing before a Veterans Law Judge. The claim was already on appeal with the Board and submission of a VA Form 9 was unnecessary. Moreover, the Veteran has already been accorded an in-person hearing with the undersigned Veterans Law Judge and an additional hearing is not warranted. The case was previously before the Board in April 2009, when it was remanded for development related to the claimed stressors and periods of National Guard service. Because of the varying evidence related to the diagnoses of psychiatric disorders, the Board remanded the case in January 2012 for a VA examination and a medical opinion. After completion of that development, in light of information contained in the VA examination report obtained; specifically the examiner's reference to a letter which was considered and not of record; and in pursuant to the request of the Veteran's representative, the case was remanded again in November 2012 so that such evidence could be placed in the record. FINDING OF FACT A psychiatric disability, to include PTSD, is unrelated to an injury, disease, or event in service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters in June 2003, March 2004, October 2004, May 2005, September 2008, December 2009, March 2011, and January 2012 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in an April 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. 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); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; she did not identify any additional treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in March 2008. 38 C.F.R. § 3.159 (c) (2). A VA examination was conducted in March 2012, and the report of examination, dated in April 2012, along with a March 2013 supplemental opinion were obtained; the Veteran has not argued, and the record does not reflect, that this examination and/or opinion is inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The examining psychiatrist did an excellent job reviewing the large volume of evidence of record and rendering a diagnosis and medical opinion supported by appropriate rationale. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 and 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). In a PTSD claim 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. Examples of such evidence include, but are not limited to, statements from family members, and evidence of behavior changes following the claimed assault. 38 C.F.R. § 3.304(f)(3). In Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to personal assault PTSD claims. In particular, the Court held in Patton that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault, are substantive rules which are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-99 (1998). The M21-1, Part III, Chapter 5, has been rescinded and replaced, in relevant part, by M21-1MR, Part III, Subpart iv, Chapter 4, Section H30. See generally M21-1MR, Part III, Subpart iv, Chapter 4, Section H30. These M21-1MR provisions on personal assault PTSD claims require that, in cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence. As to personal assault PTSD claims, more particular requirements are established regarding the development of "alternative sources" of information as service records may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. See M21-1MR, Part III, Subpart iv, Chapter 4, Section H30b. Further, the relevant provisions of M21-1MR indicate that behavior changes that occurred around the time of the incident may indicate the occurrence of an in-service stressor and that "[s]econdary evidence may need interpretation by a clinician, especially if the claim involves behavior changes" and "[e]vidence that documents behavior changes may require interpretation in relation to the medical diagnosis by a neuropsychiatric physician." See M21-1MR, Part III, Subpart iv, Chapter 4, Section H30c. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § .159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The chronicity provisions under 38 C.F.R. § 3.303(b) do not apply because psychiatric disorders are not among the chronic diseases enumerated in the regulation. 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Analysis The Veteran asserts entitlement to service connection for PTSD related to events that she contends occurred during periods of inactive duty training (IDT) in the National Guard. The record shows that her military occupational specialty (MOS) was medical specialist and that, after her period of active duty, she served as an enlisted member of a medical unit in the Washington State National Guard from September 1991 to September 1993. Records indicate that the Veteran only attended 8 periods of IDT (weekend drill) from October 1991 through May 1992. She had a period of "authorized constructive attendance" in June 1992. After this she was listed as being absent from drill on leave pending transfer to the individual ready reserve (IRR), or discharge from the National Guard. She had one more period of "authorized constructive attendance" in June 1993. She was discharged from the National Guard effective September 1993. She claims that during her IDT drill weekends she was harassed by a Lieutenant Colonel, a dental officer. She asserts she was subjected to behavior which she perceived as sexual harassment by a superior officer during 8 discrete periods of IDT: October 19 and 20, 1991; November 16 and 17, 1991; December 7 and 8, 1991; January 4 and 5, 1992; February 1 and 2, 1992; March 7 and 8, 1992; May 2 and 3, 1992; and May 16 and 17, 1992. She has also made assertions that he sexually assaulted her, when she was unconscious during a dental procedure conducted during a period of IDT. She further asserts that this officer continued to stalk and harass her until at least 1995, which is almost 2 years after she separated from National Guard service and almost 3 years since she had actually attended any period of IDT. The evidence of record reflects that, in late 1994, the Veteran was seriously injured in a motor vehicle accident (MVA). She incurred various injuries including a traumatic brain injury (TBI). Evidence shows that she was in a coma for several months. Further medical evidence reveals that a long period of rehabilitation was necessary to recover from the physical injuries of the accident, as well as neuropsychological deficits. In support of her claim she submitted an August 2004 letter from her private therapist, Duane Dolliver, PhD. Dr. Dolliver opined that the Veteran has PTSD due to the effects of sexual harassment and assault she reported having experienced during Washington National Guard service. The Board recognizes that a private examiner's opinion cannot be rejected solely because it is based upon a history supplied by the claimant. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Moreover, the Court has held that a claim file review, as it pertains to obtaining an overview of a claimant's medical history, is not a strict requirement for private medical opinions, and that a private medical opinion may not be discounted solely because the opining clinician did not describe review of the claim file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The critical question is whether the medical opinion is credible in light of all the evidence. The Board may reject a medical opinion that is based on facts provided by the Veteran which have been found to be inaccurate or because other facts present in the record contradict the facts provided by the Veteran which formed the basis for the opinion. Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006). Although "[m]ental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis," Cohen v. Brown, 10 Vet. App. 128, 140 (1997), the April 2012 VA psychiatric examination report notes the following: One point of conflict is Duane Dolliver's 8/12/2004 letter that is included in the claims file. Mr. Dolliver, who is a master's level non-VA therapist working Yakima, WA, claims she has PTSD due to "the effects of sexual harassment and assault that she indicated experiencing while in the Washington National Guard". He does not present convincing symptoms that meet the criteria for PTSD and he does not provide any rationale for his diagnosis of PTSD related to military exposures. In my evaluation on 3/26/2012 I reviewed the list of DSM-IV-TR PTSD criteria with the patient and her husband and I extensively reviewed the claims file and other sources of information to see if she at any time meets criteria for PTSD. My conclusion is that she does not meet DSM-IV-TR criteria for PTSD. The depression and anxiety symptoms she displays are all consequences of a non-military related motor vehicle accident that happened on 9/9/1994. The August 2004 private opinion authored by Mr. Dolliver does not adequately address the relevant findings, or lack thereof, during the relevant periods. The evidence of record reflects that the August 2004 private opinion is based on speculation, without supporting clinical data or other rationale, and does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, the Board finds the opinion to be of limited probative value, if any. Although the Veteran's MOS was medical specialist and she is competent to report her experiences and/or symptoms, competence and credibility are to be distinguished. The April 2012 VA examiner reported the following: Another point of conflict and considerable confusion are the many statements by [the Veteran] and contained in her claims file where she reports that her problems are related to causes that are not backed up in a review of the record and the several reports from National Guard representatives, doctors, and mental health professionals who she has seen over the years. I carefully reviewed records that began in 1989. She mis-respresents her history repeatedly and at times passionately, to the point of causing a great deal of confusion for those trying to sort out the truth. The best way to illustrate this that I could think of was to take a quite thorough "Statement in Support of Claim" that she wrote 8/18/2004 and to go down item by item adding information from her record. I certainly did not do a complete job, but I believe it is an adequate representation of her claims vs. what the record states. I have included it in my 3/26/2012 and 4/6/2012 notes and am reproducing it here for the benefit of the reader (my comments are in parentheses and begin with the word NOTE) : --8/18/2004, Statement in support of claim: "I have been in therapy intermittently (weekly for the past two years) since being honorably discharged from the Washington State national Guard in 1994. I have received counseling at various agencies including the VA hospital in Walla, Walla, a VA outpatient clinic in Richland, the Vet Center in Yakima, and several civilian agencies, including. . . .I have been diagnosed with an anxiety disorder requiring medication, a depressive disorder also requiring medication, a suicide attempt requiring hospitalization, an incarceration for assault, and regular psychotherapy. Prior to my enlistment, I had no such need for medical or psychological care. When viewed in its entirety, a definite causal link can be established between the sexual abuse suffered during my enlistment in the Washington National Guard, and the resulting psychological and emotional difficulties that haunt me today. "As stated, I have been diagnosed with an anxiety disorder and depression following my discharge. I have been treated at both private doctors' offices, and at VA clinics." [NOTE: MANY OF THESE RECORDS ARE IN THIS REPORT AND THEY CLEARLY FOCUS TREATING HER FOR CONSEQUENCES OF HER MVA IN 1994 WHERE SHE SUFFERED BACK/PELVIC FRACTURES AND SEVERE TBI. IN A NOTE DATED 4/16/1999 QUOTED ABOVE IT DOCUMENTS THAT HER "DEPRESSION" IS A CONSEQUENCE THIS--"Patient called to report that she has recently sought treatment from a local psychiatrist to address depression. She said she was "surprised" to find out she was depressed but described feelings of worthlessness, passive wish to die, sudden onset tearfulness. Described herself as having felt very frustrated with her difficulties in statistics class and felling "like a loser". Appears to have some insight into the interplay between her CHI, her decreased functional abilities, and her long history of striving for excellence. ADDITIONALLY, THERE IS NO ANXIETY DISORDER DIAGNOSIS IN VA RECORDS. THE FIRST TIME ANYONE BRINGS UP ANXIETY IS THE LETTER ABOVE DATED 8/12/2004 BY HER NON-VA THERAPIST (MASTERS LEVEL TRAINING), HER PhD AND MD PROVIDERS HAVE NEVER MADE THIS DIAGNOSIS. EVEN IF THIS DIAGNOSIS HAD BEEN OVERLOOKED, WHICH HAPPENS, IN LOOKING AT THE CONTENT OF OFFICE VISITIS WITH MEDICAL AND MENTAL HEALTH PROVIDERS IN VA RECORDS SINCE THE INTIIAL CPRS NOTE IN 1999 THERE ARE NO CREDIBLE SYMPTOMS THAT COULD BE CONSTRUCED AS TO ANXIETY OR PTSD RELATED, THOSE SYMPTOMS THAT SHE DOES HAVE, SUCH AS DIFFICULTY CONCENTRATING OR SENSE OF FORESHORTENED FUTURE, ARE CLEARLY RELATED TO CONSEUQNECES OF HER MVA IN 1994-- CHRONIC BACK PAIN, LOSS OF CAREER POTENTIAL WITH SEVERE DISAPPOINTMENT, ETC.] "I have attempted suicide as a result of my depression, and was involuntarily hospitalized in Walla Walla, Washington in 1995" [NOTE: CONTRADICTED BY THE ABOVE STATEMENT FROM ROY S. FOWLER PhD WHO WROTE "4/1995 hospitalized on the psychiatric unit at St. Mary Medical Center for what was thought to be an OD and possible suicide attempt, "the patient denies it was a suicidal attempt but says that it was, rather, a gesture on her part to demonstrate the significance of her distress over what she describes as 'controlling family environment'". ALSO CONTRADICTED BY A REPORT DATED 2/21/2006 FROM EAST SLOPE NEUROPSYCHOLOGY, INC., J K THOMPSON, PhD: "[The Veteran] also reported a history of psychiatric instability including at least one suicide attempt. She stated that after her major head injury, she was living with her parents in 1995 and 'felt like a prisoner' at their house, especially because she was unable to drive at that time. She reported that she took eight Amitriptyline tablets trying to get her parents' attention. As a consequence, she was involuntarily hospitalized at St. Mary's Medical Center in Walla Walla for three weeks." [ALSO CONTRADCITED BY SEVEREAL REPORTS AND STATEMENTS FROM THE PATIENT THAT SHE WAS NOT DEPRESSED, SHE WAS ANGRY AND DISAPPOINTED ABOUT THE LOSS OF LIFE AND CAREER POTENTIAL A/P HER MVA IN 1994 WHERE SHE SUFFERED BACK/PELVIC FRACTURES AND SEVERE TBI.] "The events that transpired in the National Guard under the command of LTC [A.] were both humiliating and dangerous. The thought of attending weekend drills where I would once again be under his command, made me nauseated and exacerbated my migraine headaches" [NOTE: SHE WAS NOT UNDER HIS COMMAND, THIS IS THE REASON FRATERNIZATION CHARGES COULD NOT BE BROUGHT AGAINST HIM ACCORDING TO RECORDS ABOVE, SEE ESPECIALLY THE STATEMENT ABOVE WITH NO DATE FROM "Exhibit 4, statement from Col. M.L" TO CLARIFY THIS ISSUE. SHE WORKED WITH HIM THROUGH DRILL WEEKEND IN 7/1992. THE FIRST REPORT OF PROBLEMS COMES THE WEEK AFTER THAT DRILL, ON 7/17/1992 [DATE INCORRECT, IT IS MORE LIKELY 7/17/1993], WHERE SHE WAS APPLYING FOR VOCATIONAL REHABILITATION BENEFITS TO CONTINUE HER COLLEGE TRAIING BASED ON HER ARMY DIABILITY OF 20% FOR MIGRAINES 10% AND SINUSITIS 10%. TO QUALIFY, SHE HAD TO EXPLAIN WHY HER ARMY DISABILITIES LED HER TO BE DISABLED AND TO QUALIFY FOR VOCATIONAL BENEFITS. THIS REPORT STATES: "She states that she had been having migraine headaches once every two weeks, but because of recent circumstances (including death threats delivered by a former boyfriend and subsequent police contacts) headaches have interfered with her work as frequently as twice a week". THERE ARE ALSO REPORTS THAT HE MADE THREATS TOWARDS HER ON HER ANSWERING MACHINE AFTER THE RELATIONSHIP BROKE UP. THIS PUTS BOTH OF THEM AT ODDS WITH EACH OTHER--HIM AND HER HAVING A SEXUAL AFFAIR AT DRILLS AND OUTSIDE OF DRILLS AT HER APARTMENT IN YAKIMA IN 1992, HIM APPARENTLY BREAKING THE RELATIONSHIP OFF IN 1993 BECAUSE HE REALIZED IT WAS A MISTAKE, HER BECOMING ANGRY BECAUSE HE LIED AND DID NOT DIVORCE HIS WIFE, HER REPORTING HIS INAPPAPROPRIATE BEHAVIOR IN WHAT LOOKS LIKE AN ACT OF RETALIATION, HIM COMING BACK AT HER WITH THREATS BECAUSE OF FEAR THIS WOULD END HIS CAREER, HER USING HIS THREATS TO ADVANCE HER DESIRES TO GET OUT OF THE NATIONAL GUARD/GET INTO THE RESERVES/AND GO TO LAW SCHOOL.] "He would excuse me from formation to 'assist him' regularly. [A.] would then drive me to his private dental practice in Seattle where he would repeatedly rape me and force me to participate in humiliating sexual acts." [NOTE: HE WOULD DRIVE HER TO HIS OFFICE BECAUSE THEY WERE ASSUMED TO BE WORKING ON THEIR DUTIES IN THE DENTAL SECTION OF THEIR NATIONAL GUARD UNIT. THEY WOULD GO TO HIS OFFICE AFTER MORNING FORMATION. IT WAS THERE WHERE THEY ENGAGED IN VOLUNTARY SEXUAL ACTS BASED ON HER STATEMENTS TO ME ON 3/26/2012 ("....HE DID NOT ORDER HER TO HAVE SEX WITH HIM, SHE CAME VOLUNTARILY, SHE SAYS THIS HAPPPENED ON EACH DRILL WEEKEND (5 OR 6 IN TOTAL; ONCE THEY HAD SEX IN AN ALLEY DURING A DRILL WEEKEND, SHE DID NOT CONSIDER IT RAPE AT THE TIME BUT LATER HER THERAPIST SUGGESED TO HER IT WAS RAPE, 'I JUST CONSIDERED IT KINKY SEX AT THE TIME', THIS IS THE REASON SHE DID NOT BREAK THE RELATIONSHIP OFF AT THE TIME", SEE HPI, MILITARY STRESSORS SECTION, ABOVE); IN ONE WITNESS'S REPORT THEY WERE FOUND TOGETHER UNDER CIRCUMSTANCES SUSPICIOUS FOR THEIR UNAUTHORIZED USE OF INTOXICANTS WHILE THEY WERE ON DUTY. THIS REPORT COMMENTED THAT A. RESISTED HAVING AN ASSISTANT WHO MIGHT HAVE BEEN LESS PRONE TO HAVING SEXUAL LIAISONS WITH HIM. OTHERS KNEW THEY WERE HAVING AN AFFAIR AT THE TIME. SEE THE ENTRY ABOVE TITLED "No date, statement from someone assigned to the 164th MASH unit".] "The abuse was not limited to weekend drills in Seattle. He frequently drove to Yakima, where I lived, to continue his reign of power and domination" [NOTE: THIS WORDING DOES NOT APPEAR IN HER FILE UNTIL 2004, IN HER INTERVEIW TO ME ON 3/26/2012 SHE ADMITS TO THE VOLUNTARY NATURE OF THEIR RELATIONSHIP DURING THE TIME THEY HAD THE AFFAIR AND DURING OUR INTERVEIW ON 3/26/2012 SHE TOLD ME SHE USED THE WORD "RAPE" BASED ON THE PROMPTINGS OF HER NON-VA COUNSELOR, A MASTERS TRAINED THERAPIST IN YAKIMA IN PRIVATE PRACTICE. IT IS AFTER SHE BEGAN SEEING THIS THERAPIST THAT THE SCENARIO ABOUT THIS BEING SEXUAL ABUSE EMERGED, 11 YEARS AFTER SHE STOPPED ATTENDING NATIONAL GUARD DRILL AND 10 YEARS AFTER HER MVA IN 1994 WHERE SHE SUFFERED BACK/PELVIS FRACTURES AND SEVERE TBI. IT IS NOT CLEAR HOW HE DECIDED THAT HER PROBLEMS WERE R/T TO HER MILITARY EXPERIENCES WITH THE OVERLAP OF HER DIABILITY ISSUES AND HER LOSS OF ABILITIES, WHICH WERE THE MAIN SOURCE OF HER SIGNIFICANT DISTRESS (THIS WAS ALSO AT A TIME AFTER SHE COMPLETED A MASTERS DEGREE AND WHEN SHE WAS DIAGNOSED WITH BREAST CANCER) .] "I felt powerless and isolated in my National Guard unit: after all, he had been with the unit for nearly 2 decades and outranked most of the soldiers- I was a Specialist/E-4 from Yakima who hardly knew anyone from Seattle. I confided in a few, fellow enlisted female soldiers from my unit who assured me that [A.] would retaliate if I ever brought the events to the attention of the central command." [NOTE: HER LAST PAY PERIOD FOR A DRILL WEEKEND WAS JULY 11-12 1992, EVERYTHING EVENTUALLY CAME OUT DURING THE 1993 SUMMER DRILL SEASON WHEN SHE DID NOT WANT TO ATTEND DRILL AND BASED ON A REPORT WHICH I BELIEVE WAS DATED 7/17/1993 SHE REPORTED AN INCREASE IN MIGRAINE HEADACHES AGGRAVATED BY THREATS MADE BY A. SHE SPOKE TO HER COMMANDER WHO AUTHORIZED AN INVESTIGATION, THE REPORT OF THIS INVESTIGATION WAS COMPLETED ON 8/9/1993. SHE WAS RELUCTANT TO FILE A WRITTEN REPORT AT FIRST BUT DID EVENTUALLY SUBMIT ONE DATED 8/16/1993. THIS STATEMENT DOES NOT MENTION PROBLEMS WITH HEALTH OR FEAR OF ANY KIND. IT HINTS THAT SHE WOULD HAVE CONTINUED THE RELATIONSHIP HAD A. GOTTEN A DIVORCE FROM WIFE AND IT COMPLAINS BECAUSE HE LIED ABOUT HAVING HAD A VASECTOMY. THIS IS NOT THE STATEMENT OF SOMEONE WHO FELT ABUSED SEXUALLY, IT IMPLIES COLLUSION ON HER PART AND A DESIRE TO MAINTAIN THE RELATIONSHIP. IT STATES "Around the end of March I realized A. was a habitual liar. He lied to me about pursuing a divorce from his wife. He lied to me about his 'vasectomy' which he never had. His temper was getting progressively worse, so I decided to end our relationship." AS TO THE THREATS MADE BY A. SHE REPORTED A THREATENING MESSAGE ON HER ANSWERING MACHINE AT HOME, THIS WAS AFTER THE RELATIONSHIP ENDED AND IN THE CONTEXT OF HER MAKING A REPORT THAT WOULD POTENTIALLY DAMAGE HIS CAREER, IT WAS NOT DONE DURING THEIR AFFAIR AND CANNOT BE CONSTRUED TO BE RELATED TO SEXUAL COERCION. BY THAT TIME THE RELATIONSHIP HAD ENDED AND THERE WOULD HAVE BEEN EMOTIONAL TURMOIL ON BOTH THEIR PARTS, EXPLAINING HER REPORT OF AN INCREASE IN MIGRAINE HEADACHES IN JULY.] "What had begun as an opportunity to continue serving in the Army after my honorable discharge from the active ranks in 1991, turned into fear and self-loathing at the hands of an officer in my chain-of-command. The anxiety and stress became so great that I could not continue to attend weekend drills, and was eventually discharged." [NOTE: A. WAS NOT IN HER CHAIN-OF-COMMAND, AS IS ARLEADY DISCUSSED ABOVE. IN ADDITION, SHE WAS IN LAW SCHOOL IN 1994 ACTING ON HER ORIGINAL PLAN TO GO TO LAW SCHOOL. SHE DELAYED TURNING IN A WRITTEN STATEMENT AGAINST A. BUT FINALLY DID SO BECAUSE SHE WAS TOLD SUCH A STATEMENT WOULD FACILIATE THE ADMINSITRATIVE TRANSFER FROM THE NATIONAL GUARD TO THE RESERVES, SEE THE ABOVE ITEM TITLED "No date, statement from someone assigned to the 164th MASH unit". THE REALATIONSHIP ENDED AND WAS COMPLICATED BY EMOTIONAL CHAOS BECAUSE IT THREATENED HIS NATIONAL GUARD CAREER. SHE WAS NOT THE ONLY PERSON TO MAKE ACCUSATIONS AGAINST HIM, BUT HE MADE AN ANGRY CALL AND LEFT A MESSAGE ON HER ANSWERING MACHINE THAT SHE SAID WAS THREATENING. THE ORIGINAL TAPE OF THIS MESSAGE WAS DESTROYED BY YAKIMA POLICE BECAUSE [THE VETERAN] MADE NO FURTHER REPORTS OF HARRASSMENT AFTER THIS ONE INSTANCE. THE FACTS ENDED WITH THIS, EVERYTHING AFTER THIS IS SPECULATION ON [THE VETERAN'S] PART AND DID NOT EMERGE UNTIL AFTER SEEING A NON-VA THERAPIST IN 2004 WHO SUGGESTED TO HER THIS WAS SEXUAL HARRASSMENT AND THAT SHE HAD PTSD FROM IT.] "These events were brought to the attention of my unit commander in the form of a deposition, which, undoubtedly, led to his being successfully court-martialed in 1994. [A.] was court-martialed for his abuse of power, with my testimony; but, the Washington State National Guard did not concern themselves with the damage that occurred in my life following the abuse and harassment by [A.]. It wasn't until a Vet Center counselor suggested that I petition for some form of recourse that I decided to reexamine this turbulent period of my life: a turbulent period which still has repercussions on my functioning today. The VA will now become aware of how the years of abuse has impacted my life." [NOTE: AS STATED ELSEWHERE, THERE IS INO INDICATION THAT THIS IMPACTED HER LIFE. SHE COMPLETED A BA DEGREEE DURING 1992-93 AND STARTED LAW SCHOOL IN 1994. SHE WAS IN THE MVA ON HER WAY TO SCHOOL IN THE MORNING IN 1994 AND SUFFERED BACK/PELVIC FRACTURES AND SEVERE TBI. THE SEQUELAE TO THIS ACCIDENT TOOK HER OUT OF LAW SCHOOL AND RETURNED HER HOME TO HER MOTHER AND STEP FATHER. SHE GOT FRUSTRATED LIVING THERE AND IN 1995 MADE A SYMBOLIC SUICDIE ATTEMPT. AFTER THIS SHE MOVED TO YAKIMA WITH A BOYFRIEND, GOT "KICKED OUT" BY HIM AND THEN WORKED AND SUCCESSSFULLLY ON HER OWN UNTIL SHE MARRIED. SHE COMPLETED A MASTERS DEGREE AFTER THE MARRIAGE AND HAD TWO CHILDREN IN SPITE OF A PRIOR PELVIC FRACTURE. SHE WORKED UNTIL A DIAGNOSIS WITH BREAST CANCER AND HAD SURGERY. SHE IS NOW AWAITING RECONSTRUCTIVE BREAST SURGERY. SHE HAS NO DOCUMENTED PTSD SYMPTOMS IN VA RECORDS AND THE REPORT OF PTSD BY HER NON-VA THERAPIST DOES NOT DIAGNOSE THE DISORDER IN A MANNER THAT DEMONSTRATES SHE INDEED MEETS CRITERIA FOR PTSD. IN MY CAREFUL EVALUATION ON 3/26/2012 SHE DOES NOT MEET CRITERIA FOR PTSD. "The most significant diagnosis resulting from the trauma would be depression. As stated, I only sought help after my life had become completely unmanageable, or after I attempted suicide." [NOTE: RECORDS INCLUDING A BACK DEPRESSION INVENTORY AND STATEMENTS BY THE PATIENT DO NOT REPORT DEPRESSION. IN 1999 A NON-VA PSYCHIATRIST STARTED SERTRALINE IN THE CONTEXT OF ANGER PROBLEMS SHE WAS HAVING. ABOUT THE SAME TIME SHE WAS SEEN BY THE SEATTLE PAIN CLINIC WHO MADE RECOMMENDATIONS FOR THE MANGEMENT OF HER BACK PAIN WITH METHADONE AND RECORDS REPORT A SIGNIFICANT IMPROVEMENT IN HER MOOD. SHE THEN COMPLETED THE MASTERS DEGREE, WORKED, HAD TWO CHILDREN, GOT DIAGNOSED WITH BREAST CANCER. HER REPORT OF HER LIFE BENING "COMPLETELY UNMANAGEABLE, OR AFTER I ATTEMPTED SUICIDE" IS ALREADY KNOWN TO BE BECAUSE SHE WAS LIVING W/HER MOTHER AND STEP FATHER AND BEING IN WHAT SHE CALLED 'A CONTROLLING FAMILY ENVIRONMENT' AT THE TIME. AFTER SHE MOVED OUT THERE ARE NO FURTHER SUICIDE GESTURES.] "I have been prescribed a number of antidepressants over the years, ranging from Amitriptyline to Celexa to Prozac to Zoloft (which I am currently using)." [NOTE: THE AMITRIPTYLINE WAS GIVEN FOR CHRONICP PAIN WHEN SHE WAS SEEN BY THE PAIN CLINIC IN SEATTLE; THE CITALPRAM (CELEXA) WAS PRESCRIBED BY A NON-VA PSYCHIATIRST DUE TO SYMPTOMS OF DEPRESSION WHILE SHE WAS WORKING ON HER MASTER'S DEGREE AND A 4/16/1999 NOTE BY THE PAIN CLINIC PSYHCLOGIST STATED THAT THE DEPRESSION WAS R/T HER HEAD INJURY AND HER ACTIVITIES AT SCHOOL FOR HER MASTER'S DEGREE; A NOTE FROM THE PSYCH NP AT THE YAKIMA CBOC DATED 6/2011 DOCUMENTS [THE VETERAN'S] REPORT THAT DAY THAT HER DEPRESSION WAS DUE TO EFFECTS OF HER HEAD TRAUMA AND ANXIETY WAS DUE TO BREAST CANCER. THE NOTE FURTHER STATES THAT THERE WERE PTSD SYMPTOMS AFTER A TRIP "back to the town where the MVA occurred", WHICH WOULD HAVE BEEN IN ARIZONA. NOWHERE IN THE VA RECORD, WHICH IS EXTENSIVE AND CONTAINS MEDICAL AS WLL AS PSYCHIATRIC RECORDS, IS THERE REPORT OF PTSD. DEPRESSION IS RELATED TO THE POST-MVA HEAD TRAUMA AND IT'S LINGERING EFFECTS. ANXIETY IS R/T POST-BREAST CANCER WORRY ABOUT IT RECURRING.] The Board finds the Veteran's assertions with respect to personal assault during service to be not credible. Even assuming she perceived she was subjected to sexual harassment by a superior officer, the competent reliable evidence does not establish a diagnosis of PTSD, and the VA examiner specifically concluded that the Veteran does not have a psychiatric disorder related to service. With respect to a 4/27/2012 letter referenced in the April 2012 VA examination report, in March 2013, the VA examiner stated that she no longer has the letter in her possession, noting the protocol of sending all documentation to be scanned into an electronic file had been followed. Regardless, the examiner stated that the examination report considered the letter and that she had reviewed and transcribed the pertinent part of the letter for the record when making a conclusion as to the validity of the Veteran's claim. The examiner stated the following: The information in the letter is not a central point regarding the validity of this claim, it was related to a history of sexual promiscuity that she did not want her husband to be privy to. I used the information in understanding her problems in the past with sex addiction. Characterizing past diagnoses clearly was important in understanding the character of her life prior to her post - military TBI. It was noted that although the topic was opened up as something relevant to her claim of a nexus to service for her problems, none was found. The examiner added that not having the original letter changed nothing with respect to the opinion provided. In reaching a determination, the Board has accorded significant probative value to the opinion of the 2012 VA examiner. The examining psychiatrist did an excellent job reviewing the large volume of evidence of record and rendering a diagnosis and medical opinion supported by appropriate rationale, the contemporaneous evidence, and VA treatment records. Such is far more probative and reliable than the Veteran's remote lay assertions. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for a psychiatric disability, to include PTSD, is not warranted. ORDER Service connection for a psychiatric disability is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs