Citation Nr: 1338148 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-21 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder. REPRESENTATION Appellant represented by: Florida Division of Veterans Affairs WITNESS AT HEARINGS ON APPEAL The Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from December 1980 to December 1983. This case initially came before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran subsequently relocated, and jurisdiction of his claim was transferred to the RO in St. Petersburg, Florida. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2013). This case was previously before the Board in September 2011, January 2013, and May 2013, on which occasions it was remanded for additional development, to include a Travel Board hearing, which was ultimately conducted in May 2012. The case is now, once more, before the Board for appellate review. Subsequent to the last remand, the case was converted into an electronic file Veterans Benefits Management System (VBMS). There are also records in the Virtual VA system that are not in VBMS. Thus, consideration of any further claims should include consideration of both electronic databases. FINDING OF FACT An acquired psychiatric disorder, including posttraumatic stress disorder, is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active military service, to include an alleged inservice sexual assault. CONCLUSION OF LAW An acquired psychiatric disorder, including posttraumatic stress disorder, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2002) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in January, March, April, August, and September 2010 of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording a VA examination. Currently, there is no pertinent and available evidence suggesting that additional records have yet to be secured, or that additional examinations are in order. Moreover, there is no current error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, including those offered during the course of an RO hearing in March 2011, and at a subsequent Travel Board hearing before the undersigned Veterans Law Judge in May 2012, as well service treatment and personnel records, and both VA (including Virtual VA) treatment records and examination reports. 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 Veteran 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 Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection The Veteran in this case seeks entitlement to service connection for an acquired psychiatric disorder, specifically, posttraumatic stress disorder. In pertinent part, it is contended that the Veteran suffers from a posttraumatic stress disorder which is the result of an inservice personal/sexual assault. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002). Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2013). In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an inservice stressor, and credible supporting evidence that the claimed inservice stressor actually occurred. 38 C.F.R. § 3.304(f) (2013). However, if the claimed stressor is not combat-related (as in this case), and posttraumatic stress disorder has not been diagnosed in service, the Veteran's lay testimony regarding the inservice stressor is insufficient, standing alone, to establish service connection, and must be corroborated by credible evidence. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); see also Duran v. Brown, 6 Vet. App. 283, 289 (1994). Where a posttraumatic stress disorder claim is based on an inservice personal assault (as in this case), evidence from sources other than the Veteran's service records may corroborate his 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; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following a 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 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. 38 C.F.R. § 3.304(f) (2013). In the case at hand, a review of the record discloses that available service treatment records are negative for evidence of a psychiatric disorder, including posttraumatic stress disorder. In fact, at the time of a service separation examination in October 1983, the Veteran denied any difficulty sleeping, and similarly denied problems with depression and excessive worry, or "nervous trouble of any sort." A psychiatric evaluation conducted at that time was entirely within normal limits, and no pertinent diagnosis was noted. It is also noted, in the clinical history form associated with the separation exam noted, in response to whether he had received other illness or injury not otherwise reported, he checked yes. He reported cutting a thumb while in Panama, requiring stitches. There is no other pertinent treatment reported. In association with the current claim, he has reported a psychiatric hospitalization in Panama, following the reported sexual attack. Attempts to obtain records resulted in negative findings. Again, this history, recently reported, was not reported at separation, and he denied nervous trouble of any sort. As noted, in a VA memorandum of September 2010, it was noted that no additional service treatment records, including of a reported period of inservice hospitalization in 1983, were available for review. The earliest clinical indication of the presence of an acquired psychiatric disorder is revealed by VA outpatient treatment records dated in December 2009, approximately 26 years following the Veteran's discharge from service, at which time he received a diagnosis of cannabis dependence and "posttraumatic stress disorder." Since the time of the Veteran's discharge, he has received additional psychiatric diagnoses of depressive disorder, "rule out" adjustment disorder with disturbance of conduct, and "rule out" personality disorder with ASPD features, as well as posttraumatic stress disorder due to "military sexual trauma." However, on no occasion has the Veteran's depressive disorder, "rule out" adjustment disorder, or "rule out" personality disorder been in any way associated with his period of active military service. Moreover, to the extent that the Veteran does, in fact, suffer from a personality disorder, such pathology is not an appropriate subject for a potential grant of service connection under the applicable law and regulations. See 38 C.F.R. § 3.303(c) (2013). The Board observes that, in a VA outpatient treatment record dated in December 2009, it was noted that the Veteran's father was an alcoholic, and "physically abusive." Further noted was that the Veteran was raised with six siblings, and was sexually abused from the ages of four to six by his stepbrothers. Significantly, while during the course of that outpatient treatment, the Veteran gave a history of inservice sexual trauma, available service personnel and treatment records are devoid of any evidence whatsoever of such trauma. Significantly, he has recently reported the in-service treatment, which he failed to report at separation, while he did not a laceration of the thumb. The Board notes that, at the time of a VA psychiatric examination in June 2013, which examination, it should be noted, involved a full review of the Veteran's claims folder and VA medical records, the Veteran received diagnoses of posttraumatic stress disorder and polysubstance abuse. However, according to the examiner, the Veteran's posttraumatic stress disorder was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. Rather, the diagnosis of posttraumatic stress disorder was premised on information, previous diagnoses, and history contained in the Veteran's medical records. That history showed that the Veteran had been sexually abused several times by his older half brother when he was approximately five years old. Additionally noted was that the Veteran had been physically abused by his father. Significantly, according to the examiner, while the Veteran claimed that he had received psychiatric treatment in the military, there were no records of any mental health treatment in the Veteran's service treatment records, with the exception of a normal physical examination on service separation in October 1983. Nor were there any indications of military sexual trauma in the Veteran's service personnel records. Following the examination, it was noted that the Veteran had first sought mental health treatment in 2009, but had recently become uncooperative with that treatment. While he did appear for his VA psychiatric examination, during the course of that examination, he became "angry and hostile," and left. Based on information obtained prior to the Veteran's departure and other information in the record, it appeared that, while the Veteran did meet the criteria for a diagnosis of posttraumatic stress disorder, given his present and past heavy use of drugs and alcohol, and prior reported history of sexual abuse as a child, as well as previous legal issues, the examiner was unable to connect the Veteran's current diagnosis of posttraumatic stress disorder solely to his alleged inservice military sexual trauma. In fact, to do so would be resorting to speculation. According to the examiner, given the many overlapping symptoms of posttraumatic stress disorder and substance abuse, the level of dysfunction and severity of the Veteran's posttraumatic stress disorder could not be ascertained. In the opinion of the examiner, while the Veteran did have a diagnosis of posttraumatic stress disorder based on prior evaluations and treatment, given the brief history he was willing to provide at the time of examination, there was insufficient information to conclude that the Veteran's posttraumatic stress disorder, to the extent it existed, was due to inservice military sexual trauma. The Board finds the aforementioned opinion of a VA psychiatrist highly probative, because that opinion was based upon a review of the Veteran's entire claims folder, as well as other pertinent medical records, and a full examination, including both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file, and the thoroughness and detail of the opinion). The VA examiner provided reasons and bases for his medical opinion, and pointed to the evidence which supported that opinion. See Hernandez-Toyens, supra. Under the circumstances, the Board is of the opinion that the probative medical evidence of record fails to establish that the Veteran suffers from an acquired psychiatric disorder, including posttraumatic stress disorder, which is in any way related to his period of active military service. In evaluating the Veteran's claim, the Board has a duty to assess the credibility and weight to be given to the evidence of record. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In that regard, the Veteran has attributed his current psychiatric disorder, and, specifically, posttraumatic stress disorder, to an inservice sexual assault. However, there currently exists no competent evidence whatsoever that the claimed inservice assault actually occurred, or that, subsequent to that alleged assault, the Veteran received psychiatric treatment. While he has recently reported a psychiatric hospitalization after the event, he did not report that at the time of separation, but did respond to the pertinent question reporting a thumb injury. Specifically, despite the current report of a psychiatric hospitalization, he also denied any nervous symptoms at the time of separation. Not until December 2009, many years following the Veteran's discharge from service, did he file a claim for service connection for posttraumatic stress disorder. In that regard, the passage of many years between discharge from service and medical documentation of a claimed disability is a factor which tends to weigh against a claim for service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, there is no persuasive evidence suggesting a link between the Veteran's current psychiatric disability and his period of active military service. Under the circumstances, the Veteran's claim for service connection must be denied. The Board acknowledges the Veteran's testimony regarding the origin of the disability at issue. However, the Board rejects those assertions to the extent that they seek to etiologically relate the disability at issue to the Veteran's period of active military service. The Veteran's statements and history, when weighed against the objective evidence of record, are neither credible nor of particular probative value. Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran possesses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the aforementioned, the Board is unable to reasonably associate the Veteran's current psychiatric disability with any incident or incidents of his period of active military service, including an alleged inservice sexual assault. Accordingly, the Veteran's claim for service connection must be denied. ORDER Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs