Citation Nr: 1803881 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-19 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD. REPRESENTATION Appellant represented by: Christopher L. Loiacono, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Boal, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to July 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran was provided an April 2017 video hearing before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. FINDING OF FACT 1. The preponderance of the evidence is against the finding that the Veteran has a current diagnosis of PTSD related to active service. 2. The preponderance of the evidence is against the finding that the Veteran has a current diagnosis of an acquired psychiatric disorder other than PTSD related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2017). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder other than PTSD have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of the Veteran's claim, VA issued VCAA notices in the form of July 2010, March 2011, and July 2011 letters which informed the Veteran of the evidence generally needed to support the claims on appeal. The notices included information regarding the assignment of an increased evaluation and effective date; what actions she needed to undertake; and how VA would assist the Veteran in developing the claim. The notices were also issued to the Veteran prior to the rating decision from which the instant appeal arises; therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA or identified by the Veteran. The Veteran's service treatment records, VA treatment records, and any identified private treatment records have all been obtained. The Veteran was afforded multiple VA medical examinations for the disabilities on appeal, most recently in November 2011. The medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the existence and etiology of the claimed current disability sufficient to decide the claim. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the claims. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. Service Connection for PTSD The Veteran seeks service connection for his PTSD. He contends that his PTSD is related to trauma as a result of personal assault that he experienced while in basic training. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (2014); (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. 38 C.F.R. § 3.304 (f) (2014). The Veteran did not report the in-service personal assault or otherwise seek treatment for PTSD. Although the Veteran may not have reported this in-service assault, 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). Moreover, the Court in Patton and YR noted an exception to the general rule announced in Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996), that a stressor generally cannot be established as having occurred merely by after-the-fact medical nexus evidence. YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton, 12 Vet. App. at 272. It may be in a claim, as here, which is predicated on personal assault. Specifically, the Veteran stated that he was assaulted during basic training by his drill instructor during a training exercise, by the other trainees when his drill instructor ordered them to hold a "blanket party" for the Veteran, and also by his drill instructor when he allegedly forced the Veteran to climb on a roof and pointed a gun at the Veteran and threatened to shoot the Veteran. As a result of the alleged assault, the Veteran stated that he suffered physical injuries and suffers from PTSD. The Veteran stated that he did not report the assault because of his fear that the drill instructor would kill him, but that he did go to sick call for injuries received during the attack. The Veteran stated that he reported that he received the injuries during a training exercise. A review of the Veteran's service treatment records (STRs) does not show a complaint or a diagnosis of PTSD in service, nor do those records reflect any complaints of injuries received during a training exercise consistent with the alleged stressor. The STRs reflect that in February 1967, the Veteran complained that the end of his penis was red and discharge comes out regularly, and that he had the inability to control urine at night. The Veteran was told that he has a tilted pelvis which caused pain. Also in February 1967, the Veteran was seen for hyperventilation and anxiety symptoms. At that time, the physician noted that the Veteran stated that he had been in a psychiatric hospital before service and had behavioral problems in the past. The Veteran was diagnosed with having adolescent behavioral disorder. In March 1967, the Veteran visited the mental health clinic and was diagnosed with sociopathic personality disorder and recommended for discharge. Also, the Veteran's service personnel records reflect that he received an Article 15 nonjudicial punishment for disobeying a lawful order and for being absent from his unit without proper authority. The records of these proceedings do not contain any reference to the alleged stressor. The RO attempted to verify the alleged stressor but was unable to do so. In October 2011, the RO issued a formal finding of a lack of information required to verify stressors associated with a claim for service connection for PTSD. The memo detailed the efforts that the RO made to verify the alleged stressor, including contacting the Joint Services Record Research Center (JSRRC) and the U.S. Crime Records Center. Neither the JSRRC nor the U.S. Crime Records Center had any record of the alleged stressors. The memo concluded that all procedures to obtain sufficient information from the veteran have been properly followed and that the Veteran's alleged stressor is not verified. The Veteran provided a buddy statement from his wife attesting to the Veteran's symptoms, but did not provide any buddy statements which could corroborate the alleged in-service stressor. The Veteran also submitted a "stressor letter" in October 2012 detailing the alleged stressor, but did not provide any additional evidence that could corroborate the alleged stressor. The Board notes that the Veteran's VA treatment records indicate that he sought outpatient treatment for PTSD at VA facilities and that a VA examiner diagnosed Veteran with PTSD in June 2011 based on his reported stressors using the DSM IV criteria. Although there is no diagnosis under the DSM-V, the Board notes that the examiner provided a valid DSM diagnosis using the version of the manual that existed at the time and related the condition directly to the Veteran's reported stressor. However, in November 2011, the VA examiner opined that "the evidence provided and deemed relevant does not contain support for the account of personal trauma described by the veteran." Even conceding a diagnosis, however, the Board finds that service connection is not warranted as there is no evidence of combat service or corroborating evidence of an in-service stressor. If the evidence establishes that the 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) (2017). The evidence does not show that the Veteran engaged in combat with the enemy or that his claimed stressor is combat-related. The Board also notes that a 2010 amendment to the PTSD regulation reduced the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. However, that part of the regulation is inapplicable to this case, as the Veteran has not claimed that his stressor is related to fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f)(3) (2017). Cases involving allegations of personal assault fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the veteran complains. If a PTSD claim is based on an in-service personal assault, evidence from sources other than the Veteran's service records may corroborate his or her account of the stressor incident. Examples of such evidence include, but are not limited to the following: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians, 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 the following: 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)(5); see Patton v. West, 12 Vet. App. 272 (1999) (holding that special VA Adjudication Procedure Manual evidentiary procedures apply in PTSD personal assault cases). 38 C.F.R. § 3.304 (f)(5) further provides that VA may submit any such evidence as is described under that provision to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. In essence, unlike claims for PTSD that do not involve an assertion of personal or sexual assault, VA can take into account the opinion of a medical professional as to the likelihood that the stressor actually occurred, rather than just relying on such a professional to determine whether or not a stressor supports a diagnosis of PTSD. However, the Board is not required to accept the veteran's uncorroborated account of his active service experiences. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). It is also clear that the Board is not required to accept the Veteran's statements regarding his alleged stressors if the Board does not find the statements regarding his stressors to be credible. In this case, the Board has been unable to corroborate the alleged stressors and does not find his report of the alleged stressors to be credible. While a lay witness is competent to testify as to the occurrence of an in-service injury or incident where that issue is factual in nature, the Board finds that the lay statements submitted by the Veteran do not constitute competent evidence of the Veteran's claimed stressors. West v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 9 (1993). In sum, the only available evidence of the claimed stressor is the testimony from the Veteran himself. While the Board may rely on other evidence, as outlined in 38 C.F.R. § 3.304 (f)(5), there has not been any other evidence corroborating that the stressor occurred. The Board does not doubt that the Veteran is sincere in his claim. Although the claims file includes a diagnosis of PTSD, a diagnosis alone does not constitute sufficient evidence for the grant of service connection. No verified stressor exists. Thus, service connection for PTSD is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for PTSD is denied. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for an Acquired Psychiatric Disorder, other than PTSD The Veteran is also seeking service connection for depression related to the alleged personal assault that he experienced while in basic training. The Veteran underwent a VA examination in June 2011 for depression. While the VA examiner did diagnose the Veteran with PTSD based on his reported stressor, the VA examiner did not diagnose the Veteran with depression. VA outpatient treatment records do reflect a diagnosis of anxiety and depression. Significantly, February 2010 and May 2010 VA records note a diagnosis of anxiety, not otherwise specified, cannot rule out PTSD related to childhood abuse and exacerbated by traumatic experience in Army basic training. The physician provided no rationale for the opinion. Black v. Brown, 5 Vet. App. 177, 180 (1993); see also, Kightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998). Furthermore, as discussed above, the alleged stressor claimed by the Veteran was not corroborated by the RO. Furthermore, there is no evidence to support the Veteran's claim that the stressor occurred, and the Board does not find the Veteran's reports of the alleged stressor to be credible. Therefore, a diagnosis of depression and anxiety based on the Veteran's alleged stressor would not be probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (indicating a medical opinion based on incorrect factual premise is not probative). Furthermore, a February 1971 record notes the Veteran reported that his depression began after his father passed away in 1970. The Board also notes that a February 1971 treatment record diagnosed the Veteran with schizophrenia. Given this diagnosis, the Board carefully considered whether service connection could be granted for schizophrenia. In this regard, where a veteran served ninety days or more of active service, and certain chronic diseases, including certain types of psychoses, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 38 C.F.R. § 3.384 defines psychosis as including a brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder, not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 38 C.F.R. § 3.384. In the present case, however, there is no current diagnosis of schizophrenia during the pendency of the appeal. A 1997 VA examination concluded that there was no Axis I psychiatric diagnosis and noted that there was a mild degree of dysphoria associated with his chronic pain syndrome. VA outpatient treatment records and examinations during the pendency of the appeal fail to diagnose schizophrenia. McClain v. Nicholson, 21 Vet. App. 319 (2007). To the extent to which the Veteran previously had a diagnosis, there is no indication the condition incurred in service or within one year of service. Rather, the first diagnosis is the February 1971 record, many years after discharge. In sum, the preponderance of the evidence is against service connection for an acquired psychiatric disorder other than PTSD, the benefit of the doubt doctrine does not apply, and the claim must be denied. ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs