Citation Nr: 1802479	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO. 06-07 801	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Robert V. Chisholm, Attorney at Law


ATTORNEY FOR THE BOARD

D. Cheng, Associate Counsel



INTRODUCTION

The Veteran served on active duty from February 6, 1974 to August 30, 1974, of which 114 days were lost including from March 22, 1974, through May 27, 1974. The Veteran was convicted by a special court-martial in May 1974 for assaulting three fellow soldiers. The Veteran's sentence included confinement for 60 days.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

In June 2009 and July 2011, the Board remanded the claim for further development

In a September 2016 decision, the Board denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2017, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Partial Remand (JMPR) with respect to the service connection for PTSD claim and remanded the claim back to the Board, which was granted by the Court. The parties found that the Board erred by not providing an adequate statement of reasons or bases for invalidating a PTSD diagnosis as a result of finding that the claimed stressor was not verifiable. 


FINDING OF FACT

The Veteran's claimed in-service PTSD stressor has not been corroborated by credible supporting evidence.


CONCLUSION OF LAW

The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.9, 4.125 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 

The Veteran, through a September 2017 letter from his representative, specifically waived any VCAA (Veterans Claims Assistance Act of 2000) error and RO consideration of newly submitted evidence after the latest Supplemental Statement of the Case. Further, in the March 2017 JMPR, the Veteran nor the Secretary of VA identified any evidence that remained outstanding nor did the parties raise an issue with the duty to notify or assist. See 38 C.F.R. § 3.304(f)(5). See also Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014) (the terms of a Joint Motion will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed by the Board). Rather, the crux of the Joint Motion was the finding by the parties that the Board had provided inadequate reasons and bases for invalidating a PTSD diagnosis as a result of finding that the claimed stressor was not verifiable, thus the Board will provide a discussion on this issue below.

The Board finds that VA has satisfied its duties to notify and assist, and the Board may proceed with appellate review.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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). 

Service connection for PTSD specifically requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. §§ 3.304(f), 4.125(a). 

In deciding an 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 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). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a 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. 

The Veteran contends that service connection for PTSD is warranted because it was caused by or related to service, which involves an incident in June or July of 1974 at Fort Riley, Kansas, where he reports a military police officer (MP) removed him from his cell, handcuffed him, kneed him in the groin, and kicked and stomped him in the head.

In an August 2017 psychological evaluation report, a private psychologist, Dr. D.M., indicated that in his opinion, the Veteran meets full DSM (Diagnostic and Statistical Manual of Mental Disorders) criteria for PTSD and major depressive disorder, severe, with psychotic features. He also stated that the Veteran suffers from PTSD and depression, which are more likely than not due to his in-service stressor of being assaulted by an MP while handcuffed. The private psychologist also stated in his report that the Veteran's symptoms are noted in his in-service and post-service medical records and were evident during a clinical interview. Further, he indicated that the Veteran's symptoms of PTSD met full DSM criteria including distressing memories of the assault, nightmares, flashbacks, psychological distress at exposure to reminders of the assault, physiological reactions to reminders of the assault, attempts to avoid thoughts and feelings associated with the assault, attempts to avoid external reminders of the assault, exaggerated negative beliefs about others, negative emotional states, diminished interest in recreational and social activities, feeling detached or estranged from others, inability to experience positive emotions, irritability, recklessness, hypervigilance, exaggerated startle response, and difficulties sleeping.

Dr. D.M. cited to a January 2005 VA medical record that reflects a positive PTSD screen as evaluated by a VA nurse. Further, he cited to a June 2005 VA medical record, which revealed the Veteran was evaluated by a VA staff physician and was determined to have met full DSM criteria for depression. The Veteran's chief complaint was that it was "hard to get along with people." The Veteran indicated that he did not liked to be bothered and did not like to be around people, had wondered about the reason for his mood but could not identify particular stressors except irritability towards others. The VA physician noted that the Veteran was court-martialed for assaulting three other soldiers and had a history of depression for "years." The physician indicated that a PTSD screen found that the Veteran did not meet the criteria for PTSD. As an initial impression, the physician stated that the Veteran's irritability can be seen in bipolar disorder but that the Veteran's irritability and frequent fights may represent antisocial personality disorder rather than bipolar disorder. Under DSM-IV diagnosis, the physician wrote under Axis I: major depressive disorder recurrent moderate psychosis not otherwise specified (NOS), r/o (rule out) bipolar disorder, r/o schizoaffective disorder and under Axis II: antisocial traits, r/o antisocial personality disorder. 

Dr. D.M. also referenced a January 2006 VA medical record, when the Veteran began treatment with a VA staff psychiatrist. The Veteran reported "extensive trauma history," including growing up in a violent neighborhood and seeing people get shot and beaten with a baseball bat with blood spurting at a young age. He reported his military experience when he was "involved in a fight, handcuffed, and brutally beaten up by a large white MP while handcuffed, hit in the groin and the head." The VA psychiatrist's impression was that the Veteran met criteria for PTSD and referred him for a PTSD evaluation. 

The January 2006 VA medical record that documented a structured clinical interview by a VA clinical psychologist to determine if the Veteran met criteria for PTSD was also cited by Dr. D.M. The Veteran reported that around June 1974, he was in the stockade at Fort Riley, Kansas; an MP took him out of his cell, handcuffed him with his hands behind his back, kneed him in the groin, and then proceeded to stomp and kick him when he fell to the floor in extreme pain. The VA psychologist noted that it is his judgment that the described event meets criteria A for the diagnosis of PTSD and that the Veteran reported his initial response to that traumatic event was of intense fear, helplessness, and horror. The VA psychologist reported that the result of the structured clinical interview was that the Veteran had many more symptoms of PTSD than required to meet criteria for the diagnosis, and by DSM-IV standards the condition is severe. 

Dr. D.M. also discussed continued treatment in September 2007 by VA staff psychiatrist. Dr. D.M. referenced the positive PTSD screen, which is based on four questions. He also stated that the VA psychiatrist concluded a diagnosis of chronic PTSD, related to a noncombat related traumatic event that happened in the military (Army 1974). He also cited to the October 2007 Decision Review Officer hearing and an August 2009 VA medical record where the Veteran discussed the incident involving the MP.

The Veteran was afforded a VA examination in March 2011 by a VA psychologist. Dr. D.M. indicated in his psychological evaluation, the VA psychologist initially checked off that the Veteran's stressor met criteria A of DSM but later contradicted h[im]self and stated that "it is debatable" whether or not the Veteran's in-service stressor meets criteria A of DSM based on the Veteran's results of a psychological test used to assess malingering. Dr. D.M. contended that the examiner concluded that the Veteran was malingering but provided no details of the test that helped form that conclusion. He noted that the Veteran checked off all of the symptoms of PTSD on a symptom checklist and then the VA examiner concluded that he did not have PTSD due to the results of the malingering test, but the VA examiner never indicated if the Veteran was interviewed about his PTSD symptoms and none of his past or present symptoms were described. Further, Dr. D.M. asserted that the VA examiner's diagnosis of major depressive disorder was diagnosed without providing any symptoms or rationale.

Dr. D.M. indicated that the Veteran continued to receive psychiatric treatment with the VA psychiatrist. Dr. D.M. stated that during his examination, the Veteran's speech was difficult to comprehend, specifically that it was rapid and that he spoke in vague sentences that were difficult to follow. Further, he noted that the Veteran had significant cognitive deficits and was unable to recall significant events in his life. For example, the Veteran was unable to clarify details of his work history other than to say he last worked in 1995 as a painter and spent many years "picking up cans," and he could not recall the names or years of birth for all of his children. Dr. D.M. stated that, in his opinion, the Veteran meets the full DSM criteria for PTSD and major depressive disorder, severe, with psychotic features. Further, he stated that the Veteran suffers from PTSD and depression, which are more likely than not due to his in-service stressor of being assaulted by an MP while handcuffed and that the stressor meets criteria A of DSM criteria for PTSD. Dr. D.M. also stated that the symptoms of PTSD are documented in the Veteran's in-service and post-service medical records and were evident during a clinical interview and opined that the symptoms meet the full DSM criteria. 

After a review of the evidence of record, including the evidence that Dr. D.M. referenced above, the Board finds that the preponderance of the evidence is against a finding of a link, established by medical evidence, between the diagnosis of PTSD and an in-service stressor, and, more importantly, credible supporting evidence that the claimed in-service stressor occurred, as specifically required for service-connection for PTSD. See 38 C.F.R. §§ 3.304(f), 4.125(a).

An August 2015 RO administrative decision found that an official line of duty report was not completed by the service department and that there was no substantial medical evidence to corroborate the Veteran's alleged injuries. In August 2011, the RO submitted a Personal Information Exchange System (PIES) request pursuant to the July 2011 Board remand for line of duty determinations for three incidents: (1) a March 1974 fight that the Veteran was involved in; (2) a July 1974 incident in which the Veteran allegedly lost consciousness and fell down a flight of stairs in confinement; and (3) the alleged assault by the MP in June or July 1974. The National Personnel Records Center (NPRC) indicated that a thorough search was made and there were no line of duty documents at code 13 for the Veteran. A PIES request was made in May 2006 for any records related to personal trauma PTSD and the entire personnel file. It was noted that all available requested records were mailed. A second request in May 2006 was made for any documents related to line of duty determination for the alleged assault by the guard (MP) while the Veteran was in confinement between June and August 1974 at Fort Riley. A response was returned that the document or information requested was not a matter of record.

The Veteran was provided a VA examination in March 2011. The VA psychologist indicated that a review of the record revealed three incidents, which required further determination by the review officer regarding whether they occurred during line of duty; all incidents involved head trauma (one fall, one fight, and one alleged assault); but only the assault (alleged assault by MP) appeared relevant to the examination. The VA examiner noted that it appeared clear that the Veteran's claim was that he developed PTSD as a result of the alleged assault. Most importantly, the VA psychologist indicated that there did not appear to be a clear finding by the RO as to whether or not the alleged assault occurred during line of duty service, but since an examination was ordered, he performed the examination assuming that the alleged assault did occur during line of duty service. 

Based on this assumption, the VA psychologist indicated that the alleged assault met the DSM-IV stressor criterion. The psychologist noted that the Veteran reported that he experienced every symptom of PTSD at the highest possible severity as endorsed in his self-report. A 60-item test of malingering of PTSD symptoms was administered to assess the credibility of his self-report for both the existence of the symptoms and the severity of the symptoms reported. The examiner found that the Veteran's score indicated an exceptionally high probability that his self-report is prone to excessive exaggeration, at best, and fabrication, at worst. He concluded while it is possible that the Veteran was experiencing every symptom at the highest possible severity, it is deemed highly unlikely given the results of the malingering test and the relatively mild nature of the purported trauma experienced. The Veteran was diagnosed with major depressive disorder without psychosis and probable malingering. The psychologist specifically addressed the Veteran's consistent reported symptoms of PTSD and stated that, in his opinion, the best explanation for these reports is that the Veteran was exaggerating or fabricating these symptoms in an effort to secure secondary gain.

The VA psychologist reviewed the claims file, analyzed, and discussed the Veteran's past psychiatric history, to include the medical records referenced by Dr. D.M. in his August 2017 psychological evaluation. In a June 2005 VA medical record, the Veteran reported that he had depression and heard "voices" for years, though he could not remember being given a specific diagnosis. He also reported a history of treatment with Wellbutrin, Zoloft, and Thorazine; treatment in a "psych ward" while incarcerated approximately 20 years prior; and treatment by a Dr. C, psychiatrist, three years prior, but could not remember the details of any treatment. As mentioned previously, the Veteran was diagnosed with major depressive disorder under DSM-IV. The VA psychologist also noted that a January 2006 VA mental health follow-up revealed that the Veteran reported his stressor and was referred for a PTSD assessment. In a subsequent January 2006 VA medical record, the VA psychologist indicated that based on the results of a structured clinical interview the Veteran had many more symptoms of PTSD than required to meet the criteria for the diagnosis and by DSM-IV standards the condition is severe. The VA psychologist specifically noted that the Veteran appeared to have endorsed every symptom of PTSD offered to him by the January 2006 VA psychologist. The VA psychologist referenced a September 2007 letter from the Veteran's primary VA psychiatrist, which was requested by the Veteran in support of his effort to obtain service connection for PTSD. His psychiatrist complied and affirmed her and the VA psychologist's diagnosis of PTSD and stated that the Veteran was compliant with treatment and his symptoms seemed believable and that his condition "may meet criteria for service connected PTSD."

The Board finds that the probative value of the September 2007 letter from the Veteran's primary VA psychiatrist to be diminished, as it is based on the Veteran's self-reported absence of psychiatric illness prior to military service, the claimed in-service stressor of the assault by the MP, and the start of PTSD symptomatology. The Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Furthermore, the letter contains speculative language as the VA psychiatrist stated that the Veteran's condition "may meet criteria for service connected PTSD." See generally Polovick v. Shinseki, 23 Vet. App. 48. 54 (2009)(a medical opinion is speculative when it uses equivocal language such as "may well be," "could," or "might"). The Veteran's credibility is addressed in more detail below. 

The probative value of the August 2017 psychological evaluation from the private psychologist is also diminished, as the psychologist did not consider all the relevant evidence that the Board has found to be credible. See Reonal v. Brown, 5 Vet. App.458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premises are not probative); Dalton v. Nicholson, 21 Vet. App. 23 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For example, the Veteran's pre-military November 1973 motor vehicle accident in which the Veteran experienced significant trauma, including to the head. A February 1974 letter from his private physician reflects that the Veteran apparently had a cerebral concussion and had multiple neurological changes in the months following the motor vehicle accident, including marked headaches, both frontal and of vertex, experiencing extreme dizziness and the inability to see due to the severity. Dr. D.M. wrote in his report that, "During basic training[, the Veteran] began to experience medical problems including headaches, dizziness, tinnitus, back pain, etc." This is an inaccurate statement, as the Veteran was experiencing headaches, dizziness, tinnitus, and back pain prior to service. There was no acknowledgment by Dr. D.M. of the pre-service automobile accident that caused multiple injuries and resulting symptoms for the Veteran. 

The Veteran's pre-military childhood was also not addressed as thoroughly by the August 2017 private psychologist as the March 2011 VA psychologist. The private psychologist indicated that the Veteran denied any significant emotional, behavioral, or substance/alcohol use as a child/adolescent. However, in February 2005, the Veteran had reported to a VA examiner, when discussing his childhood, "frequent fights in school." More importantly, during the March 2011 VA examination, the Veteran reported that his father thought he was a "bad child." He reported that he was one of 44 of his father's children and that he was always into trouble as a child. The Veteran reported that his father once pulled a gun on him and gave him three choices; fight, run and be shot, or take a whipping. Further, the March 2011 VA psychologist explained that the Veteran's pre-military history and functioning is notable for multiple reasons. He stated that the Veteran has a significant family history of mental illness given his paternal grandfather's probable schizophrenia and that there is a distinct possibility of antisocial personality disorder in his father given the number of children he reportedly fathered. The psychologist also found the motor vehicle accident of "considerable significance," as the medical records indicate the Veteran's head hit the windshield and since then he had been experiencing significant headaches, dizziness, problems sleeping, and tinnitus. 

While the Veteran has proffered evidence in support of a diagnosis of PTSD under DSM criteria, including the August 2017 psychological evaluation from Dr. D.M., the Board finds that the evidence is more consistent with the March 2011 VA psychologist's finding that the Veteran does not meet DSM criteria for PTSD. The VA examiner opined that while the Veteran has consistently reported symptoms of PTSD, the best explanation for these reports is that the Veteran was exaggerating or fabricating these symptoms in an effort to secure secondary gain. He indicated that his opinion was based on both clear test results and the implausibility of the severity of the Veteran's reported psychological response to the assault that he allegedly sustained. 

Dr. D.M. questioned the March 2011 VA psychologist's finding that the Veteran's in-service stressor did not meet criteria A of the DSM based on the rationale of the Veteran's results on a psychological test used to assess malingering. Dr. D.M. asserted that no details of the test were provided, even the name of the test was left out, and that it was important to note that when psychological tests are used, it is standard to report the name of the test, as well as test score to allow for independent confirmation of the psychologist's conclusions. The VA psychologist directly addressed these contentions in his examination report. Specifically, he noted that the name of the test is withheld in order to protect the integrity of the test, and that normative data for this test indicates that the average number of errors for veterans with legitimate PTSD claims is 2.4. Further, he elaborated that in order to reduce the likelihood of false positives, a cutting score of 8 is recommended, such that individuals who score 9 and above are considered to be highly likely to be malingering (either by falsely reporting symptoms or by greatly exaggerating those that they do have). The VA psychologist indicated that the Veteran's score on the test was 42, which reflects an exceptionally high probability that his self-report is prone to excessive exaggeration at best and fabrication at worst. 

The VA examination report also details findings of a PTSD symptom checklist, a 17-item test of PTSD symptom severity, which the psychologist noted was highly-face valid and therefore subject to exaggeration. He stated that it is useful both as an indication of symptoms severity for individuals whose self-report has been apparently credible, but also as a metric for exaggeration of symptoms for individuals whose credibility has been suspect. The average score for individuals who are suffering from PTSD is 57, with a standard deviation of 16. The Veteran's score was 81 out of 85. The VA psychologist found that when referenced against the Veteran's score on the measure of malingering, it is suggestive that the Veteran is very likely to be exaggerating or fabricating his symptoms. He opined that while it is also possible that the Veteran was experiencing each and every symptom at the highest possible severity, it is deemed highly unlikely given the results of the malingering test and the relatively mild nature of the purported traumatic experience. 

The March 2011 VA psychologist further stated that while fear and helplessness are reasonably expected near-term reactions to being beaten by a prison guard after laughing at his attempt to intimidate, having one's entire life worldview derailed by this experience is not a reasonable probability because PTSD as severe as that reported by the Veteran usually presents with a more substantial stressor than the incident reported. The VA psychologist added that while the acceptability of the stressor may in fact be debatable, the impact of the malingering on the ability to reach an accurate diagnosis was not debatable.

As Dr. D.M. wrote in his psychological evaluation, during basic training, the Veteran reported medical problems including headaches, dizziness, tinnitus, back pain, etc., and that Army medical personnel were unable to identify the causes of his symptoms and considered him to be malingering. He also noted that while in the stockade, the Veteran continued to experience medical problems and was again considered to be malingering. 

The Board finds that the Veteran's military personnel record reflects evidence of malingering including an August 1974 Army Discharge Review Board Brief, which revealed an "established pattern of shirking;" a "resume of attitude, conduct, performance, and discreditable acts - 16 entries;" approved rule of Court Martial for disciplinary action for violation of Uniform Code of Military Justice Articles 90 and 91, correctional progress notes, and ten trainee observation reports. Specifically, in a July 1974 correctional progress note, the Veteran's Sergeant indicated that the Veteran reported "my head hurts drill Sergeant." The Sergeant noted that the Veteran would return to sick call with duty on his sick slip and that he felt the Veteran was lazy and would not work. Further, the Sergeant indicated that it was a possible case of malingering and that the Veteran would not take orders from commanding officers and was uncontrollable. The Sergeant recommended that the Veteran be discharged from military service as soon as possible for continuous acts of a discreditable nature. Another July 1974 record indicates that the Veteran reported to sick call every morning with complaints including "my head hurts." Following sick call, the Veteran would return to his barracks and did not report to formation for training and refused to work. June and July 1974 trainee observation reports also indicate that the Veteran was "belligerent" and refused to follow directions including lawful orders to "get out of bed" and help clean the barracks; the Veteran was noted to remain asleep on his bunk.

In addition, the Veteran's complaints of headaches, testicular pain, back pain, dizziness, tinnitus, began before the alleged June or July 1974 MP assault, and to include prior to his entrance into service. For example, as to headaches, back pain, and dizziness, a November 1973 Medical Report shows that the Veteran was a passenger in an automobile, which had been involved in a rear-end collision on November 29, 1973. The physician wrote that the Veteran reported he hit his head at the time of the impact and sustained injuries. The Veteran complained of headaches, marked dizziness, and pain in the lower back. The physician diagnosed severe neurological symptoms inclusive of headaches, dizziness, tinnitus secondary to cerebral concussion and cervical neck injury, acute thoraco-lumbar myospasm and myofascitis, cerebral concussion-grade one-two, and contusion to thoracic cage with traumatic intercostal myositis. In February 1974, approximately eight days after entrance into service, the Veteran was seen for complaints of dizziness, non-productive cough, runny nose, and his testicles hurting. He was given a scrotal support in response to the Veteran's complaints.

In March 1974 service treatment records, the Veteran complained of headache and dizziness. The Veteran reported that he was assaulted two days prior, but there was no record of loss of consciousness. In April 1974 and during a neurology clinic visit in May 1974, the Veteran again complained of headache, dizziness, and tinnitus following a head injury in March 1974. The Veteran was not hospitalized, did not have a seizure, and the neurology examination was negative. The impression was "status post-concussion and/or tension headaches." In an April 1974 service treatment record, the Veteran complained of testicular pain, which was caused by a blow to the testicles from a softball. A December 1975 medical record from the Surgeon General indicates that a review of the Veteran was extensively evaluated medically and psychiatrically and examinations including an electroencephalogram (EEG) and audiogram disclosed no objective basis for his complaints. 

The Veteran's separation examination shows that he was medically fit for retention and required no profile limitations. A private neurologist in April 1997 noted that the Veteran was "sketchy on precisely what have been his past treatments and equally sketchy on his past evaluations" following a neurological examination for his headaches and possible seizures. The neurologist indicated that the Veteran's most pressing issues at the time were of a psychiatric, rather than neurological, nature. 

The April 1997 private medical record also indicates that the Veteran had suffered a generalized motor convulsion in November 1995, when he was hit on the back of the head by a falling air conditioning duct, which caused him immediate loss of consciousness with a post-concussion syndrome. The private physician indicated that the Veteran was not under treatment with psychotropic medication at the time, and, outside of the medical issues described, his past medical history was apparently unremarkable, although the physician described the Veteran as a "poor historian." 

Based on evidence that is indicative of malingering beginning in service, which findings were made by medical professionals contemporaneously with the Veteran's service, and the discreditable acts including multiple suggestions that the Veteran's in-service medical complaints were made in an effort to avoid his military duties, and the fact that another medical professional 37 years later also found that the Veteran was malingering, the Board finds that the Veteran's overall statements lack credibility. See Caluza, supra, 7 Vet. App. at 511-512 (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). 

Additionally, the Veteran showed a propensity to provide false facts when he entered service in February 1974 and specifically denied symptoms that he had reported experiencing less than three months prior to his completing the Report of Medical History in February 1974. For example, a November 1973 private medical record shows that the Veteran was a passenger in an automobile, which had been involved in a rear-end collision on November 29, 1973. The physician wrote that the Veteran reported he hit his head at the time of the impact and sustained injuries. Under "Presenting Symptoms," the physician wrote that the Veteran complained of "severe anxiety," headaches, "marked dizziness," eyes hurting, considerable pain in his jaw and temple, and pain in the neck, lower back, and chest wall. The physician diagnosed the following: (1) acute cervical neck derangement-sprain and strain; (2) acute cervical torticollis; (3) severe neurological symptoms inclusive of headaches, dizziness, tinnitus secondary to cerebral concussion and cervical neck injury; (4) acute thoraco-lumbar myospasm and myofascitis; (5) cerebral concussion-grade one-two; and (6) contusion to thoracic cage with traumatic intercostal myositis. The physician added a prognosis, noting that when he had last examined the Veteran on January 31, 1974 (approximately two months after the automobile accident), the Veteran had "considerable symptomatology at present," but that it had been significantly relieved with physiotherapy, but was still present. 

On the Report of Medical History that the Veteran completed in February 1974, approximately one week after he was last seen by the private physician and a little more than two months after the automobile accident, he specifically denied a history of ever having "Frequent or severe headache," "Dizziness or fainting spells," "Eye trouble," "Head injury," "Pain or pressure in chest," "Depression or excessive worry," and "Nervous trouble of any sort." He also checked "No" to ever having an illness or injury other than those already noted and "No" to being treated by clinics, physicians, or other practitioners "within the past 5 years." The Veteran signed this document, wherein he attested that the information he provided in this form was "true and complete to the best of my knowledge." Such statements provided by the Veteran were not true based on the clinical findings in the November 1973 and January 1974 private medical record. 

The Board finds as fact that the Veteran knowingly denied symptoms he had experienced less than three months prior to completing this form. He denied any treatment by a medical professional in the last five years, when he had received treatment on January 31, 1974, approximately one week prior to his completing this form on February 6, 1974. The fact that the Veteran started providing false facts as early as February 1974 further supports the Board's finding that the Veteran's overall statements lack credibility. 

An April 1997 private record shows that the Veteran reported having suffered his only generalized motor convulsion in November 1995. The examiner wrote, "There is no history of seizures clearly recognizable as such, either before or after November 1995." The Veteran reported that one month prior to the convulsion incident, he had been hit on the back of his head by a falling air conditioning duct, "an injury that caused him immediate loss of consciousness with a post-concussion syndrome." The Veteran reported he was hospitalized for a short period of time after the injury. The examiner noted that the Veteran's past medical history was "apparently unremarkable," though he noted that the Veteran was a poor historian. However, during the current appeal, the Veteran has alleged that the onset of his seizures began after being kicked in the head in service, thus, approximately 20 years prior to what he had reported in 1997 (an onset date of 1995). These statements from the Veteran are inconsistent with each other, and the Board finds no reason to question what the Veteran reported in 1997, when he denied having any seizures prior to 1995. This is further evidence of the Veteran providing false facts in connection with his claim for VA compensation benefits.

The Veteran's diagnoses of PTSD are based on his self-reported statements to the medical providers, which the Board deems are not credible. Further, the most recent August 2017 diagnosis of PTSD was provided by a psychologist referred by the Veteran's private attorney and was not based on all the evidence that the Board has found credible, as discussed above. Nieves-Rodriguez, 22 Vet. App. 295. Even assuming that the Veteran has a diagnosis of PTSD under DSM-IV and/or DSM-5, service connection for PTSD specifically requires credible supporting evidence that the claimed in-service stressor occurred. Therefore even if the Board accepts the diagnosis of PTSD, the Veteran would not meet the requirements for service connection without corroboration of a PTSD stressor. The Board finds that the Veteran's PTSD stressor has not been corroborated by credible supporting evidence. 

The Veteran has proffered 1974 correspondence to his congressional representative to support that this stressor occurred. A July 1974 letter indicated that another Congressman represented the Veteran's district and his letter would be forwarded to the rightful representative. In August 1974, two letters indicated that two, different Members of Congress were in receipt of the Veteran's letter. One Congressman indicated that he had contacted the Department of the Army and requested an investigation be made relative to the Veteran's charges against military personnel at Fort Riley. Another Congressman indicated that in order to receive information on the Veteran's request for a medical discharge, the date that he filed the medical discharge was needed. A Commanding Officer responded to the Congressman in August 1974. He indicated that the Veteran was sentenced to confinement and did not respond favorably to the corrective efforts of his staff and that consequently his unit commander recommended that he be administratively separated as unfit due to constant shirking. He further noted that the Veteran's allegation that he had not received proper medical care was unfounded and had been treated frequently in the local troop dispensary. He indicated that the Veteran was afforded a hearing test and an EEG, which were both normal. The Commanding Officer also stated that the Veteran refused to have a pneumoencephalogram. The Veteran's Congressman followed-up with the Veteran in a September 1974 letter notifying him of the Commanding Officer's letter and asked for the Veteran's reaction. While these letters verify that the correspondence between the Veteran and his Congressman occurred, they do not corroborate the alleged assault by the MP.

The Board is aware a July 1974 service treatment record shows that the Veteran was still having headaches. He complained of being hit on the side of the head and kneed in the groin. The examiner found no swelling of the Veteran's scrotum, but there was tenderness. Five days later, the Veteran returned with complaints of continuous severe headaches and claimed that while in close confinement, he was kicked in the groin by guards, which caused him pain in the testicles. An August 1974 service treatment record reflects that the Veteran was seen for recurring symptoms of headache, dizzy spell, and ringing in the ears. The physician noted that the Veteran had undergone an EEG and skull series and that the only test that had not been performed was a pneumoencephalogram to rule out acoustic neuroma because the Veteran refused the examination. The examiner wrote, "Says he wants out of the service." 

The Board does not find that these service treatment records establish the alleged assault by the MP. As already discussed above, the Veteran entered service and immediately provided false information. Just because these facts are documented contemporaneously with the Veteran's service does not make them true. Although even if they are true, they do not document the severe injuries the Veteran claims he sustained at that time. 

In September 2005 and February 2006 statements, the Veteran reported his PTSD stressor. The Veteran contended that while in stockade at Fort Riley, Kansas, an MP removed him from his cell and had him in handcuffs. The Veteran proceeded to laugh "in his face" and then was kneed in the groin and subsequently fell to the floor in a sweat. The Veteran reported that he was then stomped and kicked several times in the head. In July 2009, the Veteran's mother also made a statement reflecting what the Veteran contended above and asserted that the Veteran had changed upon his return from service.

In a July 2009 statement, the Veteran indicated that everyone who was alive at the time, 34 to 35 years prior to 2009, who knew his story (alleged assault by MP), was dead including his attorney from California and his Congressman.

While the Veteran, through his representative, in a September 2017 statement, asserted that the Veteran's accounts are credible and corroborated by evidence discussed above, the Board finds that the preponderance of the evidence is against a finding of a corroborated stressor, for all the reasons discussed above. An August 2015 RO administrative decision found that an official line of duty report was not completed by the service department and that there is no substantial medical evidence to corroborate the Veteran's alleged injuries. PIES requests were also made in May 2006 and August 2011 and were negative to corroborate the alleged assaults. Further, as discussed above, while the Veteran complained of testicular pain and head trauma/headaches and dizziness in service around the time of the alleged assault, the evidence shows that the Veteran reported head trauma and headaches prior to service and even attributed such symptoms to a November 1973 pre-military automobile accident. 

The Veteran also reported testicular pain approximately one week after entering service and was given a scrotal support. In April 1974, the Veteran reported testicular pain due to being hit by a softball. These reports of pain were prior to the alleged June or July 1974 MP assault. The injuries the Veteran claims stem from the assault were not reflected in the Veteran's separation examination and he refused a pneumoencephalogram in August 1974 to determine the cause of his headaches and dizziness. The Veteran has a history of malingering, which, again, has damaged his overall credibility. See Caluza, 7 Vet. App. at 511-512. For all the reasons discussed, wherein the Board finds that the Veteran's overall credibility has been damaged for various reasons, the Board concludes that the Veteran's alleged stressor of an assault by an MP in June or July 1974 while in confinement is not corroborated by credible evidence pursuant to 38 C.F.R. §§ 3.304(f), 4.125(a).

The preponderance of the evidence is against the claim of service connection for PTSD, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

ORDER

Entitlement to service connection for PTSD is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs