Citation Nr: 1752053 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 09-32 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as due to military sexual trauma. 2. Entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include schizoaffective disorder and schizophrenia. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD S. Vang, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1977 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The claim was previously before the Board. In June 2014, the Board remanded the claim for further development and expanded the Veteran's claim to encompass any acquired psychiatric disorder. See Clemons v. Shinseki, 22 Vet. App. 128 (2009). The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include schizoaffective disorder and schizophrenia, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's PTSD was not incurred in service or caused by service, to include as due to military sexual trauma. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for PTSD as due to military sexual trauma and/or a claimed incident involving a ship almost capsizing. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Analysis In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD generally requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Generally, the Veteran must present credible supporting evidence that the claimed in-service stressor occurred. With the exception of the specific circumstances identified in § 3.304(f), lay testimony alone is typically not sufficient to establish that a stressor occurred and the record must contain evidence substantiating the occurrence of the claimed stressors. When a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. 38 C.F.R. § 3.304(f)(5); Gallegos v. Peake, 22 Vet. App. 329 (2008). Examples of such evidence may include: 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 behavioral changes following the claimed assault is one type of relevant evidence that may be found in the sources, and may include: requests 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 behavioral changes. Additionally, VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for interpretation. 38 C.F.R. § 3.304(f); Bradford v. Nicholson, 20 Vet. App. 200 (2006). For claims involving in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. Patton v. West, 12 Vet. App. 272, 278 (1999). 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. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (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. The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). The first element of service connection is met because VA medical records indicate that the Veteran has a current diagnosis of PTSD. The second element of service connection, an in-service injury or event, is not met. The Veteran has generally asserted that his PTSD is due to (1) an incident wherein the USS Caloosahatchee almost capsized due to rough waters; and/or (2) an incident wherein he was sexually assaulted by shipmates. See September 2016 VA Form 21-0781a. The March 1980 exit examination and medical history reports do not contain any findings or reports of psychiatric symptoms. Service treatment records (STR) are largely silent for any reports of the claimed events and any PTSD symptoms, with the exception of an undated STR assessing the Veteran with intoxication after he insulted the master at arms after drinking. Additionally, USS Caloosahatchee deck logs and command history did not contain any entries noting that the ship almost capsized, or that military sexual trauma was reported. Personnel records do not indicate that the Veteran engaged in any combat during active service. Veterans are generally competent to report observable in-service injuries or events. In this case, however, the Veteran's credibility is called into question as he has provided conflicting reports of the ship incident. In a September 2007 VA record, he reported that no one went overboard and no one died, but some were injured; however, in an April 2013 VA record, the Veteran reported that he witnessed the death of his peers. Of note, a formal finding was issued in March 2017, finding that there Veteran's claimed ship stressor could not be verified. The Veteran has also provided conflicting statements with respect to the claimed military sexual assault: in December 1999, he reported that he never experienced sexual abuse while in military; in March 2015, he reported that two or more male shipmates took him into a room where chains and boats were stored, beat him up, and assaulted him because they were jealous of his intelligence and interactions with elder shipmates; in a July 2015 VA record, he reported that he was sexually assaulted by multiple soldiers in a hotel room in the early 1980s while drunk; in a September 2016 statement, he reported that he was attacked by 5 other shipmates and sexually assaulted in a boatswain's locker while trying to settle a dispute. The record indicates that the Veteran did not report any sexual trauma until December 2014, nearly 34 years after service. In light of the above-noted inconsistencies, the Board finds that the credible evidence of record does not support that the Veteran's ship almost capsized, nor does the evidence support that that he experienced military sexual trauma in service. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself because of possible bias, conflicting statements, etc. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, the Board notes that the Veteran has a pattern of being an unreliable historian, to the extent that even medical professionals have commented on the inconsistency of his statements. See November 2007 VA Record (noting general inconsistencies between Veteran's self-report and medical records); September 2012 NC DHHS Record (commenting on discrepancies between Veteran's past report that he was a Navy SEAL and participated in combat, as compared to current reports that he was not a SEAL and provided maintenance support); December 2015 VA Record (stating that Veteran previously reported in 2013 that auditory and visual hallucinations manifested in childhood, but was now reporting that they manifested for the first time in service). As such, the Board finds that the Veteran's statements with respect to the above-reported in-service events and/or stressors are not credible. The Board is sensitive to the fact that sexual abuse victims may be reluctant to discuss sexual abuse and associated symptoms. However, the Board has also reviewed the other evidence of record, and finds that evidence from other sources does not corroborate the Veteran's account of the claimed sexual assault, to include any behavioral changes. See 38 C.F.R. § 3.304(f)(5). The record contains lay statements indicating that the Veteran's personality changed after service; however, the authors of the statements do not appear to have personal knowledge of the claimed military sexual trauma or in-service ship incident. Military personnel records indicate that the Veteran had a history of misconduct well before the claimed sexual assault (which he has reported occurred in 1979 or the 1980s): approximately within 5 months after entrance, the Veteran took unauthorized absences in July 1977 and continued to have periods of unauthorized absences until discharge. Further, the Veteran's performance evaluations did not suggest a dramatic decline in performance. A June 1978 evaluation observed that the Veteran was not effective as he was slow to complete tasks and was too vocal about his personal opinion or assessment of situations; however, a subsequent February 1979 evaluation found that the Veteran was effective, resourceful, and received the highest grade in his class. The Board notes that the record contains a September 2015 opinion indicating that the Veteran's PTSD may be linked to military sexual trauma; however, the opinion contained little rationale and failed to address the reliability of the Veteran's lay statements with respect to the claimed in-service event. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997 ), cert. denied, 523 U.S. 1046 (1998). As such, the September 2015 opinion does not verify the claimed incident, and the Board finds that the evidence is against a finding of an in-service sexual assault. Consequently, the claim fails as the second element of Hickson, an in-service event, has not been met. Further, the Veteran has not proven a stressor based on personal assault pursuant to 38 C.F.R. § 3.304(f)(5). The preponderance of the evidence is against the claim, the evidence is by definition not in equipoise and, therefore, the benefit-of-the-doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for PTSD must be denied. ORDER Entitlement to service connection for PTSD is denied. REMAND The Veteran seeks service connection for an acquired psychiatric disorder other than PTSD, to include schizoaffective disorder and schizophrenia. A September 2017 opinion from H.H.G suggests that the Veteran's schizophrenia manifested in service and has continued since service. The opinion highlighted STRs documenting chest pains and alcohol use, to include an undated STR indicating that the Veteran insulted the Master at Arms after drinking heavily. The Board notes that delusions and hallucinations were noted in this undated STR, but the symptoms were ultimately attributed to alcohol intoxication. In concluding that the Veteran's schizophrenia manifested in service, the September 2017 opinion did not reference to any STRs documenting actual psychiatric symptoms in service nor did she provide an explanation as to how the STRs noting physical symptoms and intoxication indicates that schizophrenia manifested in service. Rather, H.H.G. appears to have primarily relied on the Veteran's post-service reports and lay statements submitted in September 2016 to form her opinion. Of note, an April 2013 VA record documented the Veteran's report that he heard voices and saw shadowy figures even as a child. As such, the Board finds that remand is warranted for clarification on whether the Veteran's acquired psychiatric condition manifested in service. On remand, the Veteran should be afforded a psychiatric VA examination, and the examiner should comment on the September 2017 opinion and the lay statements of record indicating that the Veteran's personality changed during service. Finally, any outstanding VA treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA medical records and associate them with the claims file. 2. Afford the Veteran a psychiatric examination to determine the nature and etiology of his acquired psychiatric disorder (other than PTSD). Any indicated studies or diagnostic tests should be performed and all clinical findings must be reported in detail. After a review the Veteran's claims file, the examiner should provide the following opinions: a) Identify any acquired psychiatric disorder (other than PTSD) present since February 2008. The examiner's attention is invited to the September 2017 Disability Benefits Questionnaire providing a diagnosis of schizophrenia. b) Whether it is clear and unmistakable (obvious, manifest, and undebatable) that any acquired psychiatric disorder (other than PTSD) preexisted active service. The examiner's attention is invited to the December 1999 VA record indicating that he heard voices since 1977 and the April 2013 VA record documenting the Veteran's report that he heard voices and saw shadowy figures even as a child. c) If it clearly and unmistakably preexisted service, whether it is clear and unmistakable (obvious, manifest, and undebatable) that any acquired psychiatric disorder (other than PTSD) was NOT aggravated (i.e., permanently worsened) during the Veteran's active service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to natural progress. The examiner's attention is invited to the September 2016 lay statements indicating that the Veteran's personality changed during service. b) If it is not clear and unmistakable that any psychiatric disorder (other than PTSD) preexisted service and was not aggravated by service, whether it at least as likely as not (a probability of 50 percent or greater) began in or is otherwise related to the Veteran's active service. The examiner should comment on the September 2017 opinion indicating that the Veteran's schizophrenia manifested in service and the September 2016 lay statements indicating that the Veteran's personality changed during service. The examiner is reminded that "clear and unmistakable evidence" means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. The phrase "at least as likely as not" does not mean "within the realm of possibility," but rather that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. Any opinion offered should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382, 392-93 (2011). 3. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claim. If the requested benefits remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs