Citation Nr: 1753867 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 10-41 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD) due to military sexual trauma. REPRESENTATION Veteran represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Houle, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to March 1974, and from July 1975 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In September 2015, the Veteran testified at a videoconference Board hearing before the undersigned at the Milwaukee RO. A transcript of that hearing is of record. The Board previously remanded this claim in May 2015, February 2016, and March 2017 for additional development. Such development has been completed and this matter is returned to the Board for further consideration. FINDINGS OF FACT 1. The Veteran does not have PTSD. 2. The Veteran's psychiatric disorder, diagnosed as depression, did not originate in service or within one year of service, and is not otherwise etiologically related to the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include depression and PTSD due to military sexual trauma are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303 , 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA provided the Veteran with 38 U.S.C.A. § 5103 (a)-compliant notice in April 2012. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examinations of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In March 2017, the Board remanded the claim for additional development. Pursuant to the Board's remand, the AOJ obtained any outstanding medical records and associated them with the claims file, scheduled the Veteran for a VA psychiatric examination , and issued a supplemental statement of the case (SSOC). Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record. II. Entitlement to Service Connection A. Legal Principles Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2011); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called ?nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection for PTSD 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 in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). The ordinary meaning of the phrase ?engaged in combat with the enemy," as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis. See VAOPGCPREC 12-99. In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran's assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). 38 C.F.R. § 4.125 requires PTSD diagnoses to conform to the Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV) as the governing criteria for diagnosing PTSD. Parenthetically, the Board notes VA implemented DSM-V, effective August 4, 2014 and DSM-V applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The law provides that if a PTSD claim is based on an in-service personal assault, which includes military sexual trauma, a veteran is required to provide corroborating evidence to substantiate the occurrence of the stressor. 38 C.F.R. § 3.304 (f)(5); Gallegos v. Peake, 22 Vet. App. 329 (2008). Examples of such corroborating evidence include, but are not limited to: records from law enforcement authorities, rape crises 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 these alternate sources. Examples of behavioral changes that may constitute credible evidence of a stressor include, but are not limited to: 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 behavioral changes. 38 C.F.R. § 3.304(f)(5). In cases involving personal assault, the existence of a stressor in service does not have to be proven by the ?preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b). YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). 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 id.; Patton, 12 Vet. App. at 278. B. Factual Background and Analysis The Veteran contends that he has PTSD as a result of military sexual trauma during service. Additionally, he asserts that he has depression resulting from the alleged military sexual trauma. Service treatment records (STRs) are negative for diagnoses or treatment for a psychiatric disorder or notations specifically related to an in-service sexual assault. The Veteran denied experiencing depression or worry during his March 1974 and July 1975 examinations. During his October 1975 separation examination, the Veteran checked ?yes" on the examination report indicating depression or excessive worry, frequent trouble sleeping, or nervous trouble of any kind. The Veteran's psychiatric examination at discharge was normal, and upon evaluation at the Behavioral Science unit at the time of discharge, the Veteran indicated he had recently gone absent without leave (AWOL) because of problems with his girlfriend. VA treatment records show the Veteran was diagnosed with depression in 1997, for which he was prescribed antidepressants. He was also diagnosed around the same time period with chemical dependency. VA treatment records from December 2006 show a negative PTSD screen, however, a history of sexual abuse as a child is noted in the Veteran's records that same month. VA treatment records from May 2009 show the Veteran reported an incident of military sexual trauma to a VA social worker, who alerted Dr. W. A., the Veteran's VA psychiatrist at the time. Dr. W. A. stated in the Veteran's record that he would be ?particularly skeptical" of such an incident, given that review of the Veteran's medical discharge summaries, as well as Dr. W. A.'s own recollection over the years, do not indicate any prior report from the Veteran of military sexual trauma. In June 2009, VA treatment records indicate the Veteran underwent a psychological assessment and was diagnosed with PTSD due to military sexual trauma. The Veteran was afforded a VA examination for PTSD in August 2012. The Veteran reported symptoms of occasional depressed mood, increased irritability, and difficulty sleeping. Regarding the Veteran's alleged in-service stressor, he stated that while incarcerated in the stockade in the military, he ?felt something" while he was asleep and looked up to see a man standing over him. He said the next day he kept his head down to avoid looking at the other inmate and had difficulty sleeping from then on. The examiner found this reported stressor was inadequate to support a diagnosis of PTSD because the Veteran did not report intense fear or helplessness at the time of the event. The examiner opined the that while the Veteran's behavioral markers were not inconsistent with a history of personal trauma, they were not uniquely indicative of the occurrence of trauma. The examiner stated that the original behavioral issue which led to the Veteran's incarceration in service predates the reported military sexual trauma. Other behavioral markers consisted of the Veteran going AWOL, which the examiner found to be unrelated to the Veteran's reported military sexual trauma. The examiner diagnosed the Veteran with polysubstance abuse but did not find that the Veteran's symptoms met the diagnostic criteria for a PTSD diagnosis under DSM-IV criteria. The Veteran testified at a hearing before a Decision Review Officer in March 2014. The Veteran indicated he was sexually assaulted in the military in 1973. After being accused of accepting stolen money after gambling at the barracks, he was court-martialed and sent to the stockade for about three weeks. He stated he was sexually assaulted by another cellmate but did not report the incident during service. He stated that after separation from service, he did not seek treatment from the VA until 1997. The Veteran was afforded another VA examination in June 2014. He reported symptoms of depression, anxiety, sleep disturbance, nightmares, and disrupted relationships. He stated that he was not currently receiving mental health treatment or taking any psychiatric medication. Regarding the Veteran's alleged in-service stressor, the Veteran's facts differed slightly in that instead of waking up to see a man standing above him, the man was performing a sexual act on him. The examiner noted that the Veteran exhibited a great deal of anger and resentment regarding the fact that he was in the stockade and that he felt betrayed as a result of his imprisonment and developed a lack of trust in the military as a result. With regard to any potential markers of the military sexual trauma, the examiner noted multiple unexcused absences from June 1974 to October 1974. The Veteran stated that he was absent on these dates due to his job duties as a welder during service. The Veteran stated he went AWOL from September 1975 to October 1975 to help his brother. The examiner found that the Veteran directly experienced a traumatic event but he did not meet the full criteria for a PTSD diagnosis. The examiner opined that it is less likely than not that the markers identified during the VA examination support the occurrence of a military sexual assault. The examiner stated that the Veteran provided explanations with regard to markers of unexcused absences in 1974 and going AWOL in 1975, and that these behaviors were largely unrelated to the occurrence of trauma. The examiner noted that the fact that the markers did not support the claimed stressor does not mean that the reported incident did not occur. Additionally, the examiner opined that it is less likely than not that the Veteran meets the DSM-IV or DSM-V criteria for a diagnosis of PTSD. The examiner stated that while the Veteran endorsed some of the symptoms of depression, the etiology of his depressed mood is complicated by his substance abuse history and ongoing daily alcohol use. The examiner stated the appropriate diagnosis for the Veteran was other specified depressive disorder and substance-induced mood disorder. The examiner opined that it was less likely as not that the Veteran's current mental health disorders are related to the reported military sexual assault. A July 2014 lay statement from the Veteran's mother indicates she spoke with the Veteran in the late summer of 1974 and he told her he was sexually assaulted by another man in service and was afraid to tell someone about the incident. An August 2014 lay statement from a prior girlfriend of the Veteran indicates she was in a relationship with the Veteran for sixteen years. She stated that he was emotionally and mentally distant during their relationship and that due to his use of drugs, alcohol, and gambling, he exhibited symptoms of anger. She stated that towards the end of their relationship, he told her about being sexually assaulted in the military. In a September 2014 statement by the Veteran, he indicated that he did not report the alleged military sexual trauma in service or seek treatment during that time because he was in shock and ?young and stupid." Pursuant to the Board's May 2015 remand, the Veteran was afforded a videoconference Board hearing in September 2015. He testified that he did not disclose his military sexual trauma to anyone in service out of fear that he would be discharged or labeled as a homosexual. He stated that after the alleged incident, he experienced trouble sleeping. With regarding to him going AWOL, he testified that he no longer wanted to be in the military. The Veteran stated that he first sought psychiatric treatment after service around 1998. Pursuant to the Board's February 2016 and March 2017 remands, the Veteran underwent an additional VA examination in March 2017. The Veteran reported that he experienced physical and emotional abuse growing up, but he denied mental health treatment before entering service. He reported current symptoms of depression which lasted days to weeks at a time, chronic sleep impairment, difficulty establishing relationships, and isolation. With regard to the reported in-service stressor, the Veteran reiterated much of his report from his prior VA examinations, in that he woke up to a man sexually assaulting him while he was locked up in the stockade in 1973. He stated to the examiner that he was scared and did not report the incident. The examiner found that the Veteran's reported in-service stressor is related to an in-service personal assault in that the Veteran directly experienced a traumatic event. The March 2017 VA examiner found that while the Veteran endorsed symptoms of PTSD, this was not enough to warrant a diagnosis of PTSD due to military sexual trauma. The examiner found there was no clear and unmistakable evidence that any diagnosed psychiatric disorder existed prior to service or was aggravated beyond natural progression by military service, as the Veteran's self-reporting of lifelong history of depression was inconsistent. The examiner cited to the Veteran's May 2005 report that he was diagnosed with depression approximately twenty years earlier, but that he now endorsed depression due to service. The examiner stated that the Veteran's VA treatment records after service note a history of situational depression unrelated to service with treatment starting years after service in 1998. The examiner stated there is no documented history of diagnosis or treatment for a psychiatric disorder prior to service and that the Veteran's situational depression and was diagnosed and treated in the late 1990's, years after service . The examiner addressed the Veteran's diagnosis of PTSD due to military sexual trauma in his post-service VA treatment records, but reiterated that his treating psychiatrist, Dr. W. A., appeared very skeptical that such an incident occurred as he could not recall the Veteran ever indicating to him that he was sexually assaulted in service, nor did his treatment records suggest that such an incident occurred. With regard to the Veteran's diagnosis of depression and alcohol use disorder, the March 2017 VA examiner opined that it is less likely than not that the Veteran's depression had its clinical onset in service or is otherwise related to the Veteran's military service, including the claimed military sexual trauma. The examiner stated that the Veteran's VA mental health records show a history of alcohol use and situational depression, unrelated to service, with diagnosis and treatment beginning in the late 1990's. Further, although the Veteran endorses some symptoms of PTSD, he does not have a current diagnosis of PTSD due to military sexual trauma. After consideration of the entire record and the relevant law, the Board finds that service connection for an acquired psychiatric disorder, to include depression and PTSD due to military sexual trauma is not warranted. Turning first to the Veteran's claim that he has PTSD due to military sexual trauma. A necessary element for establishing entitlement to service connection is the existence of a current disability; it is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The evidence of record does not establish a diagnosis of PTSD in conformance with the DSM-IV or DSM-V criteria. Weighing against the claim are the August 2012, June 2014, March 2017 VA examination reports. The August 2012 VA examiner found that the Veteran did not report intense fear or helplessness at the time of the reported in-service stressor of military sexual trauma to meet the criteria to support a diagnosis of PTSD. Further, the examiner found that any potential behavioral markers indicative of a reported in-service personal trauma, such as the Veteran going AWOL during service, were not uniquely related to an alleged military sexual trauma, as the Veteran's STRs indicate he went AWOL because he was having problems with his girlfriend, rather than due to military sexual trauma. While not suggesting that the reported in-service incident did not occur, the examiner concluded that the Veteran does not meet the criteria for a diagnosis of PTSD related to his reported in-service personal trauma. The June 2014 VA examiner also did not diagnose the Veteran with PTSD due to military sexual trauma. The examiner found that while the Veteran's alleged in-service stressor event meets the criteria related to directly experiencing a traumatic event, the examiner found that the full criteria necessary for a diagnosis of PTSD was not met. The examiner found that potential behavior markers indicative of a reported in-service personal trauma, such as the Veteran's unexcused absences from June 1974 to October 1974and the Veteran going AWOL from September 1975 to October 1975 were not related to an alleged military sexual trauma as the Veteran explained that his unexcused absences were due to his job duties as a welder and that he went AWOL due to problems with his girlfriend. While noting that the absence of behavioral markers to support the claimed in-service stressor does not suggest that the reported incident did not occur, the examiner opined that it is less likely than not that the Veteran meets the DSM-IV or DSM-V criteria for a diagnosis of PTSD as the Veteran's current symptoms are consistent with substance-induced depressive disorder and alcohol disorder. Lastly, the March 2017 VA examiner did not diagnose the Veteran with PTSD due to military sexual trauma. The examiner found that while the Veteran's alleged in-service stressor event meets the criteria in that it is related to an in-service personal assault, he does not meet the criteria to warrant a diagnosis of PTSD. While the examiner found that potential behavioral markers indicative of reported in-service personal trauma, such as lay statements by the Veteran describing episodes of depression, and panic attacks or the Veteran's self-report that he had an increased disregard for the military, there were no identifiable reasons for these reports. The examiner found that while the Veteran endorses symptoms of PTSD, this is not enough to warrant a diagnosis of PTSD. The Board accords significant probative weight to the August 2012, June 2014, and March 2017 VA examination reports. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's ?authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). These opinions reflect a full review of the evidence of record, the Veteran's STRs, a detailed interview of the Veteran, and with the medical literature available on the medical question at issue. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). The Board also acknowledges the VA treatment records that have diagnosed the Veteran with PTSD due to military sexual trauma. However, the Board notes that these records failed to indicate whether a thorough review of the STRs as well as a complete review of all pertinent medical records were conducted in forming the diagnosis. Although such opinions are evidence that must be considered, as current regulations allow for medical examiners to comment on whether a sexual assault incident occurred, such opinions nevertheless are subject to weighing of their probative value on the basis of factors such as consistency with the actual history of the Veteran's service. In this case, the examiners appeared to have based their opinions solely on the Veteran's own account, without reviewing the record to assess the accuracy of that account. While they are thus entitled to a modicum of probative value, that value is very slight. In contrast, the August 2012, June 2014, and March 2017 VA examination reports include the most thorough and factually supported opinions of record, given that they are consistent with other evidence of record and included review of the claims file. This medical evidence is competent, credible and persuasive, as it is based on accurate facts and supported by a rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the August 2012, June 2014, and March 2017 VA examination reports hold the most probative weight. While the Board acknowledges evidence that may corroborate the Veteran's alleged military sexual assault, the most probative evidence of record establishes that there is no current diagnosis of PTSD due to military sexual assault. A threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Turning now to the Veteran's claim that his depression is etiologically related to the Veteran's active service, to include military sexual assault. The Veteran's VA treatment records and VA examination reports confirm a diagnosis of depression. Therefore, there is sufficient evidence that the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). First, the Board notes that the Veteran's depression did not manifest during service or within one year thereafter. The Veteran's STRs are silent for treatments and diagnosis of depression. Although the Veteran indicated on his separation exemption report that he experienced depression or excessive worry, the Veteran's psychiatric discharge examination was normal and the Veteran indicated that he had recently gone AWOL due to problems between himself and his girlfriend. The earliest medical evidence of diagnosis and treatment for depression is in 1997, approximately twenty years after separation from service. Although not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). Weighing against the claim are the June 2014 and March 2017 VA examination reports. The June 2014 VA examiner found no identifiable connection between the Veteran's military service and the onset of reported symptoms of depression. The examiner noted that while the Veteran exhibited symptoms of depression, the etiology of his depressed mood is complicated by the Veteran's substance use history and ongoing alcohol use. The March 2017 VA examiner opined that it is less likely than not that the Veteran's depression had its clinical onset in-service or is otherwise related to the Veteran's service, to include the claimed military sexual trauma. The examiner stated that the Veteran was not diagnosed with or treated for depression until the late 1990's, and this treatment was related to alcohol and drug abuse. With regard whether the Veteran's depression is related to his alleged military sexual trauma, the examiner opined that there is no diagnosis of PTSD due to military sexual trauma to link to the Veteran's depression. The Board accords significant probative weight to the June 2014 and March 2017 VA examination reports. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). These opinions reflect a full review of the evidence of record, the Veteran's STRs, a detailed interview of the Veteran, and with the medical literature available on the medical question at issue. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no competent evidence of a nexus between the Veteran's depression to his active service, service connection cannot be granted. In summary, taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran's claim of service connection for an acquired psychiatric disability, to include depression and PTSD due to military sexual trauma. 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. See Gilbert; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD) due to military sexual trauma is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs