Citation Nr: 1753082 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-47 129A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include depression and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for erectile dysfunction (ED) as secondary to a psychiatric disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty training from September 2002 to January 2003. The Veteran had additional National Guard service. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction is currently with the RO in Montgomery, Alabama. In August 2015, the Board remanded the issues on appeal in order to assist the Veteran with developing his PTSD claim, to include verifying his claimed stressors, providing him with the appropriate notice, and providing him with a VA examination. The Board remanded the ED claim for being inextricably intertwined with the service connection claim for a psychiatric disability. In April 2017, the Board remanded the claims on appeal an additional time in order to clarify the nature and etiology of the Veteran's psychiatric disabilities. The case has now returned to the Board for further appellate review. FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran has been diagnosed with various psychiatric disabilities, to include unspecified depressive disorder, substance-induced depressive disorder, and alcohol abuse disorder. 2. The preponderance of the competent and credible lay and medical evidence suggests that the Veteran's diagnosed psychiatric disabilities are not related to his military service. 3. The Veteran's currently diagnosed erectile dysfunction is not related to service or any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include depression and PTSD, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2017). 2. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. § 1101, 1110, 5107 (2012); 38 C.F.R. § 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection - Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Only chronic diseases listed under 38 C.F.R. § 3.309(a), which are not applicable here, are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for disability which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). The law provides that, if 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. Gallegos v. Peake, 22 Vet. App. 329 (2008). 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. 38 C.F.R. § 3.304(f)(3). Additionally, under 38 C.F.R. § 3.304(f), VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for interpretation. Bradford v. Nicholson, 20 Vet. App. 200 (2006). Most significantly, for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. See Bradford v. Nicholson, 20 Vet. App. 200 (2006); Patton v. West, 12 Vet. App. 272, 278 (1999). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Psychiatric Disorder - Analysis The Veteran asserts that his currently diagnosed psychiatric disabilities are related to an event in service where he witnessed two service-members assaulting another service-member. Most recently the Veteran asserted that he was the one who was raped. For the reasons detailed below, the Board finds that service connection for an acquired psychiatric disorder is not warranted. Initially, the Board notes that the Veteran's service treatment records are silent with regards to any psychiatric symptoms, complaints, or treatments. On his August 2002 enlistment examination, the Veteran denied any history of mental illness, and the examination shows normal psychiatric condition. The Veteran's separation examination does not reveal any psychiatric problems. Turning to the evidence, VA treatment notes dated November 2008 indicate "depressed mood," but additional progress notes from December 2008 state no symptoms of depression or anxiety. In January 2009, medical treatment notes indicate that the Veteran was referred for military sexual trauma counseling after indicating that he observed someone being sexually assaulted in service. The record does not contain notes from sexual trauma counseling, but the mental health professional rendered diagnoses of depression, NOS, alcohol dependence, and substance-induced mood disorder. Additional progress notes dated February 2009 show diagnoses of depressive disorder, NOS, and alcohol dependence. In April 2009, the Veteran underwent a psychological assessment, in which he reported being sexually abused as a child by female and male cousins on various occasions. In November 2014, the Veteran submitted a PTSD disability benefit questionnaire (DBQ) by a private civilian psychologist. The psychologist indicated that the Veteran had a diagnosis of PTSD and marked "Axis I." Nevertheless, as noted by the Board's August 2015 remand decision, the examiner did not indicate what stressor was taken into consideration in rendering the diagnosis for PTSD. Furthermore, the examiner did not provide an opinion with regards to the Veteran's military service and whether any diagnosed psychiatric disability was related to such service. Accordingly, the Board finds this DBQ to be inadequate. The RO sent the Veteran a March 2016 letter requesting that he describe the claimed stressors in detail and informed him of the different type of evidence he could submit to assist in the verification of his claimed stressor. While the Veteran submitted an April 2016 statement in support of his PTSD claiming that he witnessed a soldier being raped, he did not identify or provide any additional details to assist in verifying his stressor. The record does not contain any additional evidence to support the Veteran's assertions. Subsequent to the Board's August 2015 remand, the Veteran underwent a VA examination for PTSD in May 2016. The examiner indicated that the Veteran does not meet the diagnostic criteria for PTSD under DSM-V, but rendered diagnoses of unspecified depressive disorder, substance-induced depressive disorder, and alcohol abuse disorder. The examiner noted that the civilian psychologist who conducted the November 2014 DBQ had not received the specialized VA training with regard to PTSD, and did not describe any stressors with regards to the diagnosis. Therefore, the examiner found that the November 2014 DBQ was noted but not controlling. During the examination the Veteran reported witnessing two soldiers rape another soldier and stated that he feared the same thing will happen to him. The examiner indicated that he could not find any reports of such incident or any "markers" supporting this event in the Veteran's STRs. The examiner concluded that the Veteran does not meet the diagnostic criteria for PTSD, and as a result did not provide a nexus opinion. The examiner concluded that the substance-induced depression was due to a pre-existing condition of alcohol dependence prior to service, which raises a question as to whether the onset of the depression was also prior to service, though, it more likely than not was not related to service. Consequently, in April 2017, the Board remanded the claim for an additional time requesting a clarification as to whether any psychiatric disorder preexisted the Veteran's service, and if so, whether such a disability was aggravated during service. Subsequently, the Veteran underwent an additional VA examination in June 2017, in which the examiner confirmed that the Veteran does not meet the diagnostic criteria for PTSD, but continued the diagnosis of unspecified depressive disorder. During the examination, the Veteran reported that he was sexually assaulted during advanced individual training (AIT) early in his Army career. The examiner noted that this recitation of the traumatic event represented a change from his previous recitations, when he indicated that he merely observed two men sexually assault a third man. The Veteran denied reporting the incident and additionally denied being treated for any psychiatric disorder prior to service. The examiner determined that the results of objective psychological testing the Veteran completed during the examination did not support his reports or his veracity. Therefore, the examiner opined that based on the above findings, it was less likely that any acquired psychiatric disorder was related to his military service. Furthermore, the examiner was unable to determine that a psychiatric disorder as likely as not preexisted the Veteran's service without available records prior to service showing treatment or diagnosis and the fact that his enlistment examination did not note any treatment or diagnosis of a psychiatric disorder. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The initial determination is whether an acquired psychiatric disorder was present prior to service. In Crowe v. Brown, 7 Vet. App. 238 (1994), the Court indicated that the presumption of soundness attaches only where there has been an induction medical examination, and where a disability for which service connection is sought was not detected at the time of such examination. The Court added that the regulation provides expressly that the term "noted" denotes only such conditions as are recorded in examination reports, and that history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304 (b)(1) (2017). In this case, the Veteran's August 2002 enlistment examination shows that no psychiatric disorder was identified. Therefore, the presumption of soundness attaches with respect to this portion of the claim, see 38 U.S.C.A. § 1111, and the burden is on VA to rebut the presumption by clear and unmistakable evidence that the disorder was both pre-existing and not aggravated by service. On this record, the Board finds that there is no clear and unmistakable evidence showing that the Veteran had an acquired psychiatric disorder prior to service, much less a specific diagnosis of a depressive disorder. While the May 2016 examiner suggested that there was a preexisting depressive disorder, the June 2017 examiner did not find evidence of a preexisting psychiatric disorder, and the Veteran denied being treated for any psychiatric disorder prior to service. Accordingly, the Board finds that this high legal standard has not been met with regard to whether the Veteran's acquired psychiatric disorder preexisted his period of service. As the Board finds that there is no clear and unmistakable evidence that the Veteran had an acquired psychiatric disorder that existed prior to service, the presumption of soundness has not been rebutted in this case. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); VAOPGCPREC 3-2003 (July 16, 2003). As the presumption of soundness has not been rebutted with regard to the Veteran's acquired psychiatric disorder, the Veteran's claim becomes one of direct service connection, without consideration of aggravation of a pre-existing condition. See Wagner, 370 F.3d at 1094-96 (holding that where the presumption of soundness is not rebutted, a claim for service connection based on aggravation is converted into a claim for service connection based on service incurrence). Regarding direct service connection, the Board finds that the June 2017 VA opinion is highly probative, as the examiner considered the evidence of record, including the Veteran's lay statements, and provided an adequate rationale for the opinions proffered. The Board notes that while the Veteran is competent to describe events he experienced and or witnessed during service, his statements are internally inconsistent as throughout the pendency of the appeal. Notably, throughout the pendency of the appeal, he indicated that he was merely a witness of a sexual assault in service, but during the June 2017 examination he reported that he was the victim of such sexual assault. Accordingly, the Board does not find the Veteran's statements with regards to his claimed in-service stressor to be credible. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board's finding that a veteran was not credible because recent lay evidence about a wound in service was internally inconsistent with the veteran's contemporaneous lay statements that he had not received any wounds in service). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Furthermore, no competent medical evidence suggests that the Veteran's currently diagnosed psychiatric disorder was in fact related to service, and no "markers" were found to suggest that he was a victim of sexual assault in-service. Additionally, the Board recognizes the Veteran's medical records indicating a diagnosis of alcohol abuse. However, direct service connection for disability resulting from a claimant's own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. Compensation cannot be awarded pursuant to 38 U.S.C. §§ 1110, 1131 and 38 U.S.C. § 105(a) either for primary alcohol abuse disabilities or for secondary disabilities that result from primary alcohol abuse. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Primary alcohol abuse disability means an alcohol abuse disability arising from voluntary and willful drinking to excess. Id. However, service connection may be granted for an alcohol or drug abuse disability as secondary to, or as a symptom of, a service-connected disability. See Allen, 237 F.3d 1368 at 1375. A veteran must adequately establish, through clear medical evidence that an alcohol or drug abuse disability is secondary to or caused by a primary service-connected disorder, and not due to willful wrongdoing. Id. at 1381. In this case, service connection for a substance abuse disorder may only be allowed where there is clear medical evidence that it is the direct result of a service-connected disorder, and such has not been shown in this case. For the above reasons, the preponderance of evidence is against a finding of service connection for an acquired psychiatric disability. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b). Erectile Dysfunction - Analysis Throughout the pendency of the appeal, the Veteran asserted that his ED was a result of his psychiatric disorder. Initially, the Board notes that the Veteran has a current diagnosis of ED. See e.g., June 2017 VA examination. In June 2017, the Veteran underwent a male reproductive system conditions VA examination. The Veteran reported that he started experiencing problems around 2008 to 2009 and had no problems prior to this time. The examiner noted that the Veteran is only service-connected for a knee condition and opined that his ED is less likely than not related to or aggravated by such condition. There is no competent contrary medical opinion on this matter. Furthermore, as decided by the Board herein, service connection for an acquired psychiatric disability is not warranted. Therefore, it necessarily follows that service connection for ED cannot be established under 38 C.F.R. § 3.310 as secondary to an acquired psychiatric disability. Therefore, entitlement to service connection on a secondary basis must be denied. Service connection on a direct basis is also not warranted. The medical evidence does not show any ED complaints or treatment during service, nor does the Veteran assert so. For these reasons, the Board finds that the weight of the lay and medical evidence shows that the current ED disability was not incurred in service, and is not otherwise related to a service-connected disability. As such, service connection is not warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102. ORDER Entitlement to service connection for a psychiatric disability, to include depression and posttraumatic stress disorder (PTSD), is denied. Entitlement to service connection for erectile dysfunction (ED) as secondary to a psychiatric disability is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs