Citation Nr: 1532033 Decision Date: 07/28/15 Archive Date: 08/05/15 DOCKET NO. 12-17 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder to include PTSD. REPRESENTATION Appellant represented by: Dennis L. Peterson, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Hubers, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1970 to November 1978. This case comes 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 St. Paul, Minnesota. In April 2015, the Veteran testified at a video hearing before the undersigned. A transcript of that hearing is associated with the electronic claims file. The issue of entitlement to service connection for PTSD has been recharacterized more broadly in light of Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009), and the diagnoses of various acquired psychiatric disorders in the medical records. The Board notes that the RO explicitly considered entitlement to each of the acquired psychiatric disorders for which there was medical evidence of a diagnosis, so the recharacterization does not negatively impact any procedural or substantive rights of the Veteran. See January 2015 Supplement Statement of the Case (SSOC). FINDINGS OF FACT 1. In a March 2007 decision, the Board denied service connection for PTSD. The Veteran did not appeal that determination. 2. In a March 2008 rating decision, the RO denied the Veteran's request to reopen his claim of entitlement to service connection for PTSD. The Veteran did not file a Notice of Disagreement, submit additional evidence within one year of that rating decision, or take any further steps to appeal that determination. 3. Evidence received since the March 2008 rating decision is new and material because the evidence had not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the Veteran's now-expanded claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD. 4. The evidence of record fails to corroborate the occurrence of the Veteran's reported stressors and in-service events including in-service sexual assaults, combat in Vietnam and/or the Korean DMZ, a suicide attempt, drinking unhealthy "brown" water, seeing a fellow paratrooper die, and being subjected to discrimination and being bullied by fellow soldiers. 5. The evidence of record is against finding that the corroborated in-service events/stressors, to include hearing about an attack on an American soldier in the Korean DMZ and contracting tuberculosis while in South Korea, are etiologically related to his currently diagnosed acquired psychiatric disorders. CONCLUSIONS OF LAW 1. The March 2007 Board decision denying the Veteran's claim of entitlement to service connection for PTSD is final. 38 U.S.C. § 7104 (West 2014); 38 C.F.R. §§ 20.1100, 20.1104 (2014). 2. The March 2008 rating decision denying the Veteran's claim of entitlement to service connection for PTSD is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). 3. The criteria for reopening the claim of service connection for an acquired psychiatric disorder to include PTSD have been met. 38 U.S.C.A. §§ 5103A, 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 4. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The Veteran first claimed entitlement to service connection for PTSD in December 2001. The RO initially adjudicated the claim and the Veteran appealed. In a March 2007 decision, the Board denied the claim. The Veteran did not appeal that Board decision, so it became final. 38 C.F.R. §§ 20.1100, 20.1104 (2014). In December 2007, the Veteran filed a new claim of entitlement to service connection for PTSD which was treated as a claim to reopen the prior denial of his claim of entitlement to service connection for PTSD. The RO denied reopening in a March 2008 rating decision. The Veteran did not file a Notice of Disagreement or take any further steps to perfect an appeal of that rating decision. Also, no new and material evidence was received within the year following the rating decision. Therefore, the March 2008 rating decision became final. 38 U.S.C. §§ 7104, 7105 (West 2014); 38 C.F.R. § 20.1103 (2014). In July 2010, the Veteran requested that VA reopen his claim of entitlement to PTSD. The RO denied reopening in a September 2010 rating decision. However, the RO has subsequently reopened the claim and has adjudicated the claim on the merits. See, e.g., January 2015 SSOC. Notwithstanding that the claim was reopened by the RO, the Board has an independent duty to assess whether a previously denied claim should be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) ("the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened"). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See Shade v. Shinseki, 24 Vet. App. 110, 113 (2010). Evidence is "new and material" if it (1) has not been previously submitted to agency decision makers; (2) relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time of the last prior final denial of the claim sought to be opened; and (4) raises a reasonably possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The record now contains additional allegations by the Veteran and, more importantly, multiple private medical reports which contain diagnoses of PTSD, among other conditions, and positive nexus opinions based on the Veteran's allegations of in-service events/stressors. The evidence is new in that it is not cumulative or redundant of previous evidence and, if believed, is sufficient to create a reasonable possibility of substantiating his claim. In making this determination, the Board must presume that newly submitted evidence is credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence described above is enough to reopen under the low threshold of Shade. The claim of entitlement to service connection for an acquired psychiatric disorder (to include PTSD) is reopened. II. General Legal Principles Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Prinicipi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). With respect to PTSD in particular, the regulations provide: "Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; 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." 38 C.F.R. § 3.304(f). Section 4.125(a) provides that, for VA compensation purposes, the diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed.), i.e. DSM-IV. 38 C.F.R. § 4.125(a). In addition, if the diagnosis of a mental disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. See 38 C.F.R. § 4.125(a). For claims received by, or pending before the AOJ, on or after August 4, 2014, the provisions of 38 C.F.R. § 4.125 have been amended to require that a PTSD diagnosis conform to the Fifth Edition (DSM-5). See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). In addition, there are special provisions relating to PTSD claims based on fear of hostile military or terrorist activities or an in-service personal assault. Specifically, 38 C.F.R. § 3.304(f)(3) provides that "[i]f a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor." With respect to an in-service personal assault (including military sexual trauma), the regulations recognize that sexual assaults are often unreported. Therefore, when a post-traumatic stress disorder claim is based on an in-service personal assault, the regulations authorize the use of evidence from sources other than a veteran's service records to corroborate a veteran's account of the stressor incident. 38 C.F.R. § 3.304(f)(5). 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. Id. In addition, 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. Id. The Board notes that, if VA evaluates a veteran's claimed stressor under subsection (f)(3), his/her lay testimony alone may be sufficient to establish the occurrence of that stressor if the stressor is consistent with his/her service and a VA psychiatrist or psychologist opines that the stressor is adequate to support a diagnosis of PTSD. Acevedo v. Shinseki, 25 Vet. App. 286, 291 (2012) (citing 38 C.F.R. § 3.304(f)(3)). However, if VA evaluates a veteran's claimed stressor under subsection (f)(5), the lay testimony must be corroborated by other evidence to establish the occurrence of the stressor. Id. (citing 38 C.F.R. § 3.304(f)(5) and Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed.Cir.2011)). The evidence does not show that the Veteran engaged in combat. The Veteran's service personnel records give no evidence of participation in combat. No decorations, medals, badges, or commendations confirming the Veteran's participation in combat were indicated. As the Veteran is not shown to have participated in combat, he is not entitled to the combat-related presumptions. 38 C.F.R. § 3.304(d). Finally, where the veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). The Veteran's claim relates to an acquired psychiatric disability to include PTSD. The April 2003 VA examination included a "r/o" (rule out, i.e. tentative or possible) diagnosis of psychotic disorder not otherwise specified and a June 2012 private opinion letter includes a diagnosis of schizoaffective disorder in partial remission. Psychoses (a term which includes schizoaffective disorder) are included in the list of chronic diseases under 38 C.F.R. § 3.309(a). Giving the Veteran the benefit of the doubt, the Board will apply the provisions relating to chronic diseases to that condition. The medical evidence will be summarized and discussed in more detail below, but the greater weight of it is against finding that the Veteran was diagnosed in service, within two years after his service (the presumptive period for psychoses), or that he has experienced a chronicity of symptomatology of psychotic disorder since service. The Veteran did not seek any mental health treatment or complain of symptoms of psychosis until many years after his service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding Board may consider long period of delay in seeking treatment or complaining of symptoms). Moreover, the diagnoses during the decades since he began receiving treatment are inconsistent in diagnosing any psychosis, indicating that there has not been a continuity of symptomatology while he has been undergoing treatment, much less for the many years he did not receive mental health treatment. See, e.g., January 2014 Private Opinion Letter (diagnosing anxiety, depression, and PTSD, but no psychoses); August 2014 VA Examination (diagnosing unspecified depressive disorder and polysubstance abuse disorder in remission, but no psychoses). On the evidence currently of record, entitlement to service connection for one of the diagnosed psychoses based on continuity of symptomatology is not warranted. The Veteran's other diagnosed acquired psychiatric disorders (to include PTSD) are not "psychoses" under the regulations, so none of those acquired psychiatric disorders are included in the list of chronic diseases under 38 C.F.R. § 3.309(a). The provisions of 38 C.F.R. § 3.303(b) pertaining to chronic diseases, including continuity of symptomatology, do not apply to the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD. The Board notes that there are diagnoses of personality disorders in the medical records. However, personality disorders are considered "congenital or developmental defects" which are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (2014); see also Johnson v. Principi, 3 Vet. App. 448, 450 (1992); Conley v. Peake, 543 F.3d 1301, 1305 (Fed. Cir. 2008). Therefore, as a matter of law, the Veteran is not entitled to service connection for any diagnosed personality disorder. With respect to any possible aggravation of a pre-existing personality disorder, any such theory depends on a finding of an in-service disease or injury. As discussed below, the Veteran's claims either fail on that element or, with respect to his in-service tuberculosis and the third-hand report of an attack on an American soldier, the Board finds there is no indication in the record that these incidents may be associated with any increase in severity of the Veteran's personality disorder(s) beyond their natural progression. III. Service Connection: Evidence and Analysis The determinative question in this case is whether there was an in-service disease or injury (or a "stressor" for PTSD purposes). The Board finds that the greater weight of the evidence is against finding that most of the claimed in-service diseases, injuries, or stressors occurred. In addition, the greater weight of the evidence is against finding any etiological relationship between the two confirmed events or stressors (tuberculosis and a distant attack on another soldier only reported third-hand to the Veteran) and his current mental health conditions. Therefore, the Veteran's claims will be denied. The veteran served on active duty in the Army from November 1970 to November 1978. (The Board notes that his DD-214 originally indicated entry into active service in November 1971, but an April 1994 DD-215 contains a correction of the year in that date from 1971 to 1970. The Veteran's personnel records are consistent with the earlier date.) The veteran's service personnel records document that he was stationed in the Republic of Korea from March 1972 to March 1973 and from January 1975 to February 1976. During his initial tour of service in Korea, the veteran's principal duty was cannoneer and cook as part of the 2nd Infantry Division. During his second tour of service in Korea, his in-service specialty was as an assistant gunner again with the 2nd Infantry Division. The Veteran has made numerous claims regarding in-service events/stressors including: 1. A sexual assault at gunpoint that occurred in a parking lot at the military base where he was stationed. See, e.g., April 2003 VA Examination; October 2003 DRO Hearing Transcript; January 2004 VA Mental Health Evaluation; July 2005 VA Discharge Summary; January 2014 Private Psychosocial Evaluation; April 2015 Board Hearing Tr. at p. 5. 2. An attempted suicide by cutting his wrists (or contemplating cutting his wrists) following the sexual assault. See, e.g., December 2002 VA Mental Health Evaluation; January 2004 VA Mental Health Evaluation; August 2014 VA Examination; April 2015 Board Hearing Tr. at pp. 10-11. 3. A sexual assault in an apartment after drinking with acquaintances. See, e.g., April 2012 Private Outpatient Assessment. 4. Being subjected to mortar attacks and small arms fire while in the de-militarized zone (DMZ) while serving in South Korea. See, e.g., September 2002 Statement of Veteran; December 2002 VA Mental Health Evaluation; April 2003 VA Examination; July 2003 Statement of Veteran; January 2004 VA Mental Health Evaluation; April 2012 Private Outpatient Assessment; January 2014 Private Psychosocial Evaluation; April 2015 Board Hearing Tr. at p. 14. 5. Hearing about two American soldiers being attacked and killed by North Korean soldiers wielding axes while he served in the Korean DMZ. See, e.g., September 2002 Statement of Veteran; December 2002 VA Mental Health Evaluation; July 2003 Statement of Veteran; January 2004 VA Mental Health Evaluation; April 2015 Board Hearing Tr. at p. 13. 6. Drinking "brown" water and having bad food while serving in South Korea. See, e.g., September 2002 Statement of Veteran; December 2002 VA Mental Health Evaluation; April 2003 VA Examination. 7. Seeing a fellow paratrooper die during a jump and then being forced to complete his own jump. See, e.g., September 2002 Statement of Veteran; July 2003 Statement of Veteran. 8. Being subjected to racial discrimination and bullying during his active service. See, e.g., January 2006 Statement of Veteran; February 2007 Private Psychiatric Evaluation; August 2014 VA Examination ("I been beat up by my first sergeant."). 9. Dealing with tuberculosis contracted while he was serving in South Korea. See, e.g., July 2003 Statement of Veteran. 10. Combat in Vietnam, including killing 41 people. See, e.g., February 2007 Private Psychiatric Evaluation; September 2006 Private Psychiatric Evaluation. During his April 2015 Board hearing and in his most recent submissions to the Board, the Veteran has relied principally on the alleged in-service sexual assault at the military base (Stressor #1 above), being exposed to incoming enemy mortar and small arms fire in the Korean DMZ (Stressor # 4), and the reports of two American soldiers killed in the Korean DMZ while he was also stationed there (Stressor #5). Before addressing these allegations in detail, the Board will discuss the other alleged in-service events/stressors. There is no corroborating evidence for the alleged suicide attempt (Stressor #2) which might include treatment for cuts to his wrists (although his accounts have varied on whether he actually made any cuts or not), there is no record of his seeking medical or mental health treatment, and the first report to a mental health professional of that suicide attempt was during his claim for VA benefits over two decades after his discharge. In addition, the Board notes that no medical professional has opined that the suicide attempt itself, rather than the alleged sexual assault that preceded it, is etiologically related to any of his mental health conditions. At the hearing, the Veteran appeared not to recall the alleged sexual assault in the apartment (Stressor #3). See April 2015 Board Hearing Tr. at pp. 17-18. Given the infrequency with which has reported that assault to mental health professionals and in his various stressor statements, his inability to recall the assault during his hearing, and the lack of any corroboration in his personnel or service treatment records (despite allegedly reporting it to his captain), the Board finds the assertion not credible and that there is no corroboration of the claim. See Caluza, 7 Vet. App. at 511-12; see also Cartright, 2 Vet. App. at 25 (interest may affect the credibility of testimony); Arneson v. Shinseki, 24 Vet. App. 379, 382-383 (2011) (noting that "the assessment of the credibility of the veteran's sworn testimony is a function for the [Board]" and citing cases in support of the proposition that deference to the Board regarding the credibility of sworn testimony is due, in part, to the Board's opportunity to observe demeanor). For these reasons, the greater weight of the evidence is against finding the sexual assault in the apartment occurred (Stressor # 3). No medical professional has suggested that drinking "brown water" (Stressor #6) would qualify as a PTSD stressor or is otherwise etiologically related to his mental health conditions. However, the Board also finds no evidence to corroborate the Veteran's claim that he was forced to drink unhealthy water while stationed in South Korea. The Veteran has been inconsistent in reporting that he witnessed the death of a fellow paratrooper (sometimes described by the Veteran as his best friend) and he has never provided sufficient information to verify whether the incident (Stressor #7) actually occurred. He did not raise the issue in his hearing nor has he made the claim in any of his more recent mental health examinations. The Board finds the evidence is insufficient to place the issue in equipoise, but, instead, is against the claim. With respect to the discrimination and bullying (Stressor #8) alleged by the Veteran, his reports have been inconsistent and unspecific, except for a particular incident in which a sergeant "beat him up" and he has alleged that he reported the incident. There is no record of the incident in his personnel files or any record of medical treatment for injuries consistent with his allegations. The Veteran has not submitted the testimony or statements of any other witnesses and the record is devoid of any corroborating information. On this record, the Board finds the evidence is insufficient to place this issue in equipoise. Although the service treatment records diagnose an in-service bout with tuberculosis (Stressor #9), the medical evidence is against finding that this in-service medical condition caused, contributed to, or aggravated any current mental health condition. While mental health professionals have noted the condition as part of his medical history, they have never linked it to his acquired psychiatric condition. His service treatment records fail to indicate any psychiatric difficulties relating to the condition or treatment of it. Entitlement to service connection based on this alleged in-service event / injury / stressor is not warranted given the lack of competent evidence of a causal nexus. Finally, although the Veteran has previously alleged combat exposure in Vietnam including his involvement in killing dozens of people (Stressor #10), the Veteran never served in Vietnam. He has only rarely made this particular allegation and the available evidence, including his service personnel records, his service medical records, and his own statements establish that he never served in Vietnam. The overwhelming weight of the evidence is against this claim. Before discussing the Veteran's other stressors, the Board notes the Veteran has, during the course of pursuing his claim, alleged provably false in-service stressors (#10), has abandoned various alleged stressors over time rather than providing additional details to corroborate the event (#7), and could not recall other alleged stressors (#3) during his Board hearing. This pattern of inconsistencies indicates the Veteran is not a reliable historian. Moreover, his reports of pre-service incidents have been inconsistent as well, again calling into question the reliability of his recollections. For instance, the Veteran has sometimes reported and at other times has denied pre-service sexual traumas. Compare December 2002 VA Mental Health Evaluation (documenting Veteran's description of a sexual assault when he was 12-13); January 2004 VA Mental Health Evaluation (documenting Veteran's report of same incident) with January 2014 Private Psychosocial Evaluation ("He denies any history of physical or sexual abuse as a child however his record does state that he was raped by a cousin when he was 12 or 13."); September 2006 Private Psychiatric Evaluation ("He denied any history of childhood abuse."); April 2012 Private Outpatient Assessment (documenting that the Veteran "denie[d] any abuse or trauma before his military experience", but noting past reports of physical and sexual abuse; "His story is conflicting."). These inconsistencies indicate the Veteran is not a reliable historian. The medical evidence also supports finding that the Veteran is not a reliable historian. For example, the April 2003 VA examiner found the Veteran's reliability questionable based partly on his behavior and inconsistencies and partly on the result of "an invalid MMPI-2 profile, which cannot be interpreted due to probably over-endorsement or exaggeration of psychiatric symptoms." April 2003 VA Examination (opining that Veteran's behavior in interview "calls into question the accuracy of his self-report"; "He did not clearly and credibly describe trauma from Korea because he described it all as 'difficult' and did not discriminate between events of clear danger and events of personal inconvenience."; "With regard to the sexual assault which he is reporting, he does not go on to describe symptoms of PTSD in a clear and credible way."); see also December 2002 VA Mental Health Evaluation (noting "invalidity of psychological testing" and the "likelihood of exaggerating and fabricating symptoms"). The August 2014 VA examiner also opined, based partly on objective testing, that the Veteran was an unreliable historian. See August 2014 VA Examination (indicating, after noting invalidity of 2003 MMPI-2 profile due to exaggeration, that: "today his responses yielded a MMPI-2-RF profile of very questionable validity due to under-reporting of sxs. Taken in sum, vet is considered to be an unreliable and non-credible historian."). The August 2014 VA examiner also noted the "contradictory self-report today as compared to his self-report to previous MH providers, particularly in regard to his previous reports of pre-military hx of sexual abuse (which he denied today), as well as his previous reports of psychotic sxs in childhood (which he also denied today)." Id. In summary, for the above reasons and the further inconsistencies discussed below, the Board finds that the Veteran is an unreliable historian, so corroboration of his allegations is of particular significance. The Veteran alleges that he was sexually assaulted in a military base parking lot by a fellow soldier who gave him a ride (Stressor #1). See April 2015 Board Hearing Tr. at p. 5. Most recently, the Veteran was uncertain when the incident occurred, testifying: "I don't know, '76, '77, somewhere around there, or 75, uh, somewhere around there."). However, he has previously stated that the incident occurred in 1973. See April 2012 Private Outpatient Assessment (documenting Veteran's allegations of sexual assault while hitchhiking "in the Spring, 1973" and his contention that he reported the assault). The timing of the incident is relevant both because inconsistencies in his statements are relevant to his credibility, see Caluza, 7 Vet. App. at 511-12, and because he and his attorney rely on a marked change in his performance that occurred in or around 1977. See January 2015 Statement of Representative (accurately detailing performance appraisals and commendations during service with a negative performance appraisal in 1977 and discharge in 1978 without eligibility to re-enlist). The shift in time places the sexual assault closer to the drop off in performance which, as the Veteran's representative accurately recounts, was exemplary in 1973, 1974, 1975, and through, at least, April 1976. See January 2015 Statement of Representative. When the Veteran has discussed the alleged in-service assault, he has always indicated that it took place at a Texas base. His personnel records show that he was stationed at that base from April 1973 to late 1974 (October - December, it not clear precisely when he left the base). From there, he went to South Korea and then to a different stateside military base. In other words, if the Board credits the location of the assault, it could not have occurred later than early December 1974, which is inconsistent with his April 2015 Board testimony (though he demonstrated significant uncertainty) and which does not comfortably fit with the argument that the drop-off in his performance in 1976/1977 occurred shortly after the sexual assault. In fact, he continued to perform at a high level for at least two years after the alleged incident. The Veteran has been inconsistent regarding whether he reported the incident or did not report the incident. See, e.g., April 2012 Private Outpatient Assessment (documenting Veteran's statement that he reported the sexual assault to his captain); August 2014 VA Examination ("never reported it"). There is no evidence in the record that he did, in fact, report the incident. Also of note, the Veteran has reported that a very similar incident occurred after his military service. See February 2007 Private Psychiatric Evaluation (documenting the Veteran's report that a sexual assault happened in "1993-1994" that was of the type and in the manner as the assault which he alleges occurred during service). The Board also notes that medical opinions regarding whether the evidence indicates an in-service assault occurred are of record. Some opinions indicate that the Veteran's symptoms are consistent with a sexual assault. See, e.g., April 2012 Private Outpatient Assessment ("Based on the confounding information, I gave him the benefit of doubt and reckon that it is as likely as not that he was traumatized by his experience in the army."); October 2010 Private Opinion Letter (linking PTSD to "direct military combat" in South Korea and opining that military sexual assault "contributes significantly" to his PTSD). Others are inconclusive or equivocal. See, e.g., January 2014 Private Psychosocial Evaluation (noting unwillingness to talk about childhood sexual abuse due to sense of shame, but uninhibited ability to discuss sexual assault in the military and concluding: "There is not evidence to suggest that this rape [during childhood] had any lasting effects on him developmentally or psychologically, although it is possible that the later sexual assault triggered memory of the rape."). However, still others contain indications that the Veteran's reports are, at the least, unreliable. See August 2014 VA Examination ("Taken in sum, vet is considered to be an unreliable and non-credible historian."); January 2004 VA Mental Health Evaluation ("He does not meet criteria for posttraumatic stress disorder, based upon his history of sexual assaults (including the military sexual assault); he does not re-experience the events, he does not report avoiding stimuli associated with the events, and does not have persistent symptoms of increased arousal."); April 2003 VA Examination (also opining that the Veteran does not meet the criteria for PTSD based on sexual assault and explaining the reasons for that conclusion). The Board finds the January 2004 VA mental health evaluation and the April 2003 VA examination entitled to significant probative weight given their detailed reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The positive opinions accept the Veteran's version of events despite, in at least some cases, expressing reservations about his reliability as a historian and, moreover, they do not account for the possibility of a post-service assault. The negative opinions are more fully explained and are based on a more complete and accurate factual/medical history. The greater weight of the medical evidence is against the claim based on an in-service sexual assault. The Board finds that the inconsistencies in the Veteran's descriptions of the assault, the shift in his testimony to more comfortably fit with his legal argument, the lack of corroborating evidence, and the other evidence (including other inconsistencies and medical opinions) of his unreliability as a historian lead to the conclusion that the Veteran's allegations regarding the in-service sexual assault are not credible and have not been sufficiently corroborated to warrant granting his claim based on those allegations. With respect to the alleged mortar attacks and small arms fire while in the Korean DMZ, the evidence is against finding these incidents occurred. The Board again notes that the Veteran's reports have been inconsistent, including sporadic reports that he fired back and/or was in actual combat in Korea. See February 2002 VA Mental Health Note (documenting Veteran's claim that, while in the Korean DMZ, he was fired at and fired at others); March 2002 VA Mental Health Evaluation (documenting Veteran's claim of being in combat in Korea and being in many life-threatening situations both in-service and post-service). In August 2005, the RO attempted to confirm the veteran's in-service stressors with the JSRRC. The response from JSRRC, received in August 2006, stated: The History of the 8th U.S. Army states that in March 1971, the 2nd Infantry Division pulled back from the De-Militarized Zone (CMZ) in Korea, and turned over its area of responsibility to a Republic of Korea (ROK) Army division. By late March, the only area of the DMZ still guarded by the U.S. troops was a 1,000-meter wide sector in the vicinity of Panmunjom. . . . There are no artillery units within the DMZ. The Chronology of the Eighth United States Army for 1972 does not list any incidents at the DMZ in 1972. The Korea DMZ Incident files do not list any incidents taking place in 1972. There was one incident listed in 1975. On June 30, 1975, a U.S. Army Major was attacked at Panmunjom by ten North Korean Guards. He suffered a fractured larynx and was medically evacuated to the United States. No units are listed as being under attack. The Veteran's claims of actual mortar attacks or small arms fire conflict with the officially documented history of the DMZ and the 8th Army. Given the Veteran's unreliability as a historian, the Board finds the official documentation more credible and more reliable. Therefore, the Board finds the Veteran's reported stressor of undergoing mortar attacks and small arms fire while in the Korean DMZ are not credible. The greater weight of the evidence is against finding an in-service event or stressor consisting of mortar attacks or small arms fire. Finally, with respect to the attack on two American soldiers by North Korean soldiers wielding axes while the Veteran was serving in the Korean DMZ (Stressor #5), the above report from the JSRRC also provides conflicting evidence with respect to those claims. (In fact, the axe incident was commonly reported in the media and occurred after the Veteran had returned from South Korea.) The evidence is against finding that two American soldiers were killed in the DMZ during either of the Veteran's Korean tours (much less while he served in the DMZ, assuming he did). However, as the JSRRC report notes, a single American soldier was injured in an attack by the North Koreans. In any case, the medical evidence is against finding that the Veteran's hearing of reports of the June 1975 attack is sufficient to constitute a stressor for PTSD purposes or that hearing of the incident caused or is otherwise etiologically related to his current psychiatric conditions. Although various mental health professionals who have credited the Veteran's reports of combat or being exposed to enemy fire have found those incidents to be etiologically related to his currently diagnosed mental health conditions, none of them have linked the report of the distant attack on another soldier to his diagnosed mental health conditions. The greater weight of the evidence is against finding that there is any etiological link between the attack that the Veteran only heard about after the fact and his current acquired psychiatric disorders. In summary, the greater weight of the evidence is against finding that most of the alleged in-service events / stressors occurred (Stressor #s 1-4, 6-8, and 10) and is against finding that the remaining in-service events / stressors (Stressor #s 5 and 9) caused or are otherwise etiologically related to his current acquired psychiatric disabilities (to include PSD). To the extent the Veteran's claim is based on the in-service events / stressors numbered 1-4, 6-8, and 10 (i.e. those for which evidence is against their occurrence), it fails due to lack of an in-service event, injury, or stressor. Shedden, 381 F.3d at 1167. To the extent the Veteran's claim is based on in-service events / stressors numbered 5 and 9, it fails because the medical evidence is against finding any etiological link between the in-service event/stressor and the Veteran's diagnosed acquired psychiatric disorders. Shedden, 381 F.3d at 1167. The evidence is not in equipoise, so the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. at 53-56. Accordingly, entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. IV. Duties to Notify and Assist The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In April 2015, the Veteran had a hearing before the undersigned Veterans Law Judge in which he provided testimony and argument on the issues currently on appeal. The undersigned Veterans Law Judge specifically addressed the legal criteria relevant to the Veteran's claims and asked questions as to symptomatology, medical treatment, and the existence of any private medical opinions or other evidence that would help the Veteran's claim. Neither the Appellant, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. The Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. When VA receives a complete or substantially complete application for benefits, it 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. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant case, notice was provided to the Veteran on multiple occasions, including in August 2010, in November 2011, and in the various rating decision and statements of the case provided to the Veteran. The contents of the notice letters fully comply with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Board concludes that VA satisfied its duties to notify the Veteran. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2014). VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated with the claims file the Veteran's service treatment records (including personnel records), Social Security Administration (SSA) records, private treatment records, and VA treatment records. Moreover, an attempt has been made to confirm the veteran's reported stressors with the U. S. Army and Joint Services Records Research Center (JSRRC). The Veteran has not identified any relevant records aside from those that are already in evidence, so the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. VA also satisfied its duty to obtain medical examinations. In April 2003 and August 2014, VA provided the Veteran with medical examinations with respect to his mental health conditions. The examinations and opinions are adequate as the VA examiners reviewed the Veteran's pertinent medical history, conducted a clinical evaluation of the Veteran, and provided adequate discussion of relevant symptomatology. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). To the extent the August 2014 examination produced unreliable results, the examination report indicates the fault lies in the Veteran's level of cooperation. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street."). In any case, the Board finds the medical evidence of record is sufficient to determine the issues that require medical evidence to resolve. The Board acknowledges that it has the ability to request a VA examination for the purpose of determining whether a stressor is likely to have occurred, see 38 C.F.R. § 3.304(f). The Board finds that the medical evidence of record, including the VA examinations, private examinations, and treatment records, are sufficient on that issue and no further examinations or opinions are warranted prior to a decision on the merits. In conclusion, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD is reopened. Entitlement to service connection for an acquired psychiatric disorder to include PTSD is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs