Citation Nr: 1753908 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 12-17 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), alcohol dependence and depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from September 1962 to September 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the VA Regional Office (RO) in Nashville, Tennessee. Due to the location of the Veteran's residence, jurisdiction of this appeal is with the RO in Jackson, Mississippi. In March 2014, the Veteran testified at a hearing conducted before the undersigned. A transcript has been associated with the claims file. The case was remanded in December 2014 and June 2017 for further development. FINDING OF FACT The Veteran's current acquired psychiatric disorder is not shown to be etiologically related to service. CONCLUSION OF LAW The criteria for service connection for an acquired disorder, to include PTSD, alcohol dependence and depressive disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 4.125 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to notify and assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). II. Service connection claim A. Applicable laws and regulations Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., in accordance with DSM-IV); 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). If a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran's service records may corroborate the 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. Id. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Id. 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. B. Acquired psychiatric disorder In this case, the Board acknowledges the diagnoses in the Veteran's treatment records of a current acquired psychiatric disorder, to include PTSD, alcohol dependence and depressive disorder. The first evidence of psychiatric treatment sought by the Veteran is in 2001. Records showing current diagnoses include a June 2010 VA PTSD examination showing diagnoses of alcohol dependence and depressive disorder, while a June 2012 record shows a diagnosis of PTSD. The Board has reviewed the service treatment records, which are silent for any psychiatric complaints, and no psychiatric problems were indicated in the July 1975 separation examination and physical. Personnel records include a June 1965 Article 15 for failure to secure the medical narcotic safe; violation of standard medical procedure; and "general laziness." The Veteran was reduced in grade as a result. He has asserted that he was raped while stationed in Germany in 1964 and as a result of that rape, his work ethic and performance deteriorated and he became an alcoholic. The Veteran has argued that the June 1965 punishment supports his report of a military sexual assault. Given the above, the remaining question for the Board is whether there is credible supporting evidence that a military sexual assault occurred; and, whether the evidence supports an etiological relationship, or nexus, between the current disability and service, including the reported assault. Evidence directly addressing the question of nexus is limited to a June 2010 VA PTSD examination; VA treatment records, including specifically an October 2010 VA mental health treatment record; and an April 2015 VA mental disorders examination report. The 2010 examiner provided a diagnosis of alcohol dependence and depressive disorder. After interviewing and examining the Veteran, as well as reviewing the claims file, the examiner opined that they could not opine as to whether the Veteran had PTSD due to military sexual trauma without resorting to mere speculation. A rationale was provided. The psychologist who provided the October 2010 treatment record reported that the Veteran had a diagnosis of PTSD and that it was likely that his symptoms were directly related to the military sexual assault. Additional VA treatment records continue to show a diagnosis of PTSD related to the reported military sexual assault. After reviewing the claims file, the 2015 examiner opined that the Veteran's (incorrectly) diagnosed PTSD in a clinical setting was not the result of a claimed military sexual trauma, for which there was no evidence and no markers in the record. They opined that, to be clear, there was no evidence that a personal assault occurred during military service. They noted that the diagnosis of PTSD in the VA treatment records was not supported by psychiatric testing or details of how the Veteran met the criteria. They opined that the June 1965 personnel action was not considered a "marker" for a claimed military sexual assault incident a year prior. The examiner also opined that it was less likely than not that any other psychiatric disorder began in or was otherwise related to active service. A complete rationale was provided. The Board finds that the April 2015 VA examination opinion is the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. Although the Veteran's VA treatment records, including the October 2010 psychologist's opinion, provide a diagnosis of PTSD related to the Veteran's military service, such relate his PTSD to an unconfirmed stressor. The 2015 examiner provided a detailed rationale concerning why the evidence did not support markers of an in-service sexual assault. There has been no other evidence except for the Veteran's assertions to corroborate that the claimed assault took place. The Veteran has not reported any other in-service stressor. Without evidence to corroborate the Veteran's claimed military sexual trauma, the Board is unable to concede a verified in-service stressor. Consequently, as the treatment records relate PTSD to an unverified stressor, the Board finds them of less probative value. As for his other diagnosed psychiatric disorders, the 2015 opinion shows that such are not related to his military service. The Veteran's medical records have not reflected a nexus opinion relating psychiatric disorders other than PTSD to his military service. As to the Veteran's own contentions, he is competent to observe lay symptoms. Although he has some medical knowledge as evidenced by him being a medical specialist during service, he does not have the specialized psychiatric training or credentials to provide a competent opinion as to a psychiatric diagnosis or the onset date of such diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In summary, the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, to include PTSD, alcohol dependence and depressive disorder, and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, alcohol dependence and depressive disorder is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs