Citation Nr: 18141552 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 10-07 849 DATE: October 11, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), anxiety and depression, is denied. Entitlement to service connection for a lumbar spine disorder is denied. FINDINGS OF FACT 1. The Veteran’s acquired psychiatric disorder, to include PTSD, anxiety and depression, is not shown to be causally or etiologically related to any disease, injury, or incident in service and psychosis did not manifest within one year of service discharge. 2. The Veteran’s lumbar spine disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service and arthritis did not manifest within one year of service discharge CONCLUSIONS OF LAW 1. The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD, anxiety and depression, have not been met. 38 U.S.C. §§ 101(24), 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1975 to June 1976. These matters were previously before the Board in September 2012, November 2013 and May 2016. In September 2012 and again in November 2013, the Board remanded the instant matters so that the requested videoconference hearing could be scheduled before a Veterans Law Judge. The Veteran did not appear for the scheduled videoconference hearing. In the May 2016, the Board remanded these matters to obtain etiology opinions and outstanding records. As will be discussed below, the Veteran has been scheduled for multiple VA examinations in an effort to address the etiology of several claimed disabilities for which the Veteran is seeking service connection. Unfortunately, the Veteran has consistently failed to report to the examinations, and as such his claims will be rated based on the evidence of record. 38 C.F.R. § 3.655 (2017). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include psychoses, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. According to 38 C.F.R. § 3.384, as applicable in the instant case, the term ‘psychosis’ includes a brief psychotic disorder; delusional disorder; psychotic disorder due to general medical condition; other specified schizophrenia spectrum and other psychotic disorder; schizoaffective disorder; schizophrenia; schizophreniform disorder; and substance/medication-induced psychotic disorder. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to “chronic” diseases such as psychoses listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the general principles governing service connection, to establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. There must be: 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a). In this regard, the Board notes that for cases certified to the Board prior to August 4, 2014, as is the case here, the diagnosis of PTSD must be in accordance with the DSM-IV. With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor actually varies depending on whether it can be determined that the Veteran “engaged in combat with the enemy.” See 38 U.S.C. § 1154(b); 38 C.F.R. 3.304(d). If it is determined through military citation or other supportive evidence that a Veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the Veteran’s lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. See 38 C.F.R. § 3.304(f). Direct service connection for PTSD requires a nexus between a current Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnosis and a stressor which occurred during service. 38 C.F.R. §§ 3.304 (f), 4.125(a); Cohen v. Brown, 10 Vet. App. 128 (1997). According to the DSM diagnostic criteria for PSTD, a stressor involves a response including intense fear, helplessness, or horror after experiencing, witnessing, or confronting an event or events that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others. Cohen v. Brown, 10 Vet. App.128, 128 (1997). The sufficiency of a stressor for diagnostic purposes is a medical determination, while the occurrence of a claimed stressor is an adjudicatory determination. Id.; Moreau v. Brown, 9 Vet. App. 389 (1996). Moreover, VA recognizes that, because a personal assault is a personal and sensitive issue, many incidents are not officially reported, which in turn creates a proof problem in establishing they did. It is not unusual for there to be an absence of service records documenting the events the Veteran has alleged. Therefore, evidence from sources other than service records may corroborate an account of a stressor incident that is predicated on a personal assault. See, e.g., Patton v. West, 12 Vet. App. 272, 277 (1999). 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. 38 C.F.R. § 3.304(f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in the mentioned 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. VA may submit any evidence that it received to an appropriate mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety and depression, is denied. The Veteran contends that she has an acquired psychiatric disorder as a result of her military service. Review of the Veteran’s service personnel records do not reflect that she served in combat. As such, her unsupported assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, her alleged service stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). The regulatory requirement for “credible supporting evidence” means that “the Veteran’s testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor.” Dizoglio v. Brown, 9 Vet. App. 163 (1996). The Veteran contends that she has a currently diagnosed acquired psychiatric disorder as a result of in-service harassment, mistreatment, and assault. Private treatment records, in particular, reflect multiple diagnoses of acquired psychiatric disorders, to include PTSD and borderline personality disorder, during the pendency of the appeal. The Veteran asserts that she was traumatized by her military experience. She identifies several incidents of sexual assault and physical assault that have traumatized her and led her to have PTSD. On one occasion the Veteran alleges that during basic training, she caught her drill sergeant sniffing her underwear and taking one of the Veteran’s nightgowns with her. Moreover, the Veteran states that on several occasions the drill sergeant attempted to come onto her and because the Veteran did not want a relationship with the drill sergeant, the drill sergeant retaliated. One incident the Veteran notes is that she believes that the drill sergeant intentionally made sure that her gas mask was not secure so that she would be affected by the gas during a training practice. As a consequence, she was sick for a week. Subsequently, at her next training station, she alleges that she turned to alcohol and suffered an incident where some military police called her a prostitute. At her permanent duty station in Kentucky, the Veteran asserts that on her first day in her barracks people told her she was in the all Q Barracks (“all queer barracks”) and at some point, during her stay she alleges that another female soldier grabbed her breast while she was in the shower. She states that because of that incident she had to move outside of the base and had to pay out of her own pocket for the apartment and the car to drive to work. She also states that she did not eat in the mess hall because of the cockroaches. Moreover, the Veteran asserts that she was bullied by other females. Additionally, the Veteran asserts that one day while on her way to work she was in a car accident where she was being screamed and cussed at by the drivers of the other car. She states that she had to pay over $1000 out of her own pocket because she did not want to be late for work. Subsequently she states that she went to work “very shook up and was working with a guy and all of a sudden he attacked [her].” She states that she fought him off and kicked him before he could rape her. She ran off. She states that she spoke to the Army General and told him everything and he agreed to discharge her. See VA 21-526 dated July 27, 2006. The Veteran’s service treatment records do not document any treatment or diagnosis of a psychiatric disorder. Her service treatment record document an abortion that occurred on November 1975, 11 days after entering active duty. See Service Treatment Record. Moreover, the Veteran service military record shows an Article 15 for a period of absent without leave (AWOL) from March 5, 1976 to March 9, 1976, while the Veteran was in advanced individual training (AIT). The Veteran was stationed in Ft. Knox on March 24, 1976 and on April 26, 1976 she received a rehabilitative transfer. On May 21, 1976, the Brigade Chaplain states that he interviewed the Veteran on three occasions regarding her adjustment difficulties in the Army. However, there are some “confidential matters” that the chaplain did not reveal. The Chaplain recommended that the Veteran be considered for an administrative discharge. See Military personnel Record. Prior to discharge, on June 1976, the Veteran received a mental status evaluation which indicated that there were no concerns regarding her mental health. The Veteran was discharged based on a deficient attitude, military unsuitability, and failure to meet rehabilitative progress. The post service treatment records indicate that the Veteran tested positive for PTSD on screening examinations, and that the Veteran reported yes to Military Sexual Trauma. On June 28, 2006 the Veteran stated that she was permanently traumatized by her time in the military. See medical treatment record September 13, 2006. A July 31, 2006 psychological assessment diagnosed the Veteran with PTSD and stating that she presents Borderline Personality traits. Additionally, the Veteran has a self-reported suicide attempt from 1975 that occurred while on leave from the Army. There are also two reported psychiatric hospitalization (1999 and 2000) for suicidal thoughts she states she was on 24-hour watch. See medical treatment record September 13, 2006. The record shows the Veteran was scheduled for a VA examination on multiple occasions during the course of the appeal, to include in November 2016, May 2017 and November 2017. The Veteran was informed in letters dated June 2016 and March 2017 that a VA examination would be scheduled in connection with her claim, that a claimant that fails to report to an examination without good cause will have their claim rated based on the evidence of record and that she was to contact the medical facility on the appointment notice as soon as possible be she was unable to keep the appointment. Such examination was necessary to determine the nature and etiology of her acquired psychiatric disorder. The Veteran failed to report to these examinations. The record does not show that she was incarcerated at this time or in in-patient treatment for a medical condition. The record does not indicate that she was otherwise unable to attend this examination. The Veteran has not provided good cause for her failure to attend the examination nor has she requested that a new examination be scheduled. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim will be rated based on the evidence of record. 38 C.F.R. § 3.655(a). The Board notes that a claimant has some responsibility to cooperate in the development of all facts pertinent to his claim and that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the present case, the Veteran has not appeared for any of the scheduled VA examinations, which is necessary to determine whether she is entitled to disability benefits. The Board acknowledges that the Veteran’s representative has requested another examination in its September 2018 Informal Hearing Presentation and that the medical examiner has opined that an in-person examination is required to diagnose the Veteran under DSM-5, however, the Board finds that the Veteran has not been cooperative and another examination would further delay the proceedings. See VA examination report dated November 2017. However, the Veteran’s representative did not state why the Veteran failed to appear for any of the multiple examinations previously scheduled in this case nor did the representative provide good cause for the Veteran’s failure to attend such examination. Indeed, the Veteran’s representative has not even confirmed that the Veteran would appear for such a hearing. This argument is therefore without merit. The Board has also considered whether the Veteran is entitled to presumptive service connection for a psychosis. However, there is no clinical evidence suggesting that the Veteran has been diagnosed with such a disorder nor does the record establish that such a disorder manifested within one year of the Veteran’s service discharge in June 1976. The Veteran was not diagnosed with an acquired psychiatric disorder until 2006 and she reported psychiatric hospitalizations in 1999 and 2000. Therefore, presumptive service connection for a psychosis, to include based on continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board recognizes competent assertions of the Veteran and her family members. The Veteran’ husband statement addressed the Veteran’s intimacy problems and alleges that they are a result of assaults the Veteran faced while in the military. The Veteran’ sister statement addresses the assaults faced by the Veteran and how she has bad memories and nerves because of the military. The Veteran’s brother wrote a letter acknowledging her time in the military and how he advised her to talk to the chaplain as well as the alleged assaults. The Veteran’s mother’s statement also addresses the alleged assaults faced by the Veteran and states that the Veteran was not the same when she returned home from the military. Lay evidence is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Circ. 2007); Davidson v. Shinseki, 581 F.3d.1313, 1313(Fed. Cir. Sept. 14, 2009). Due consideration has been given to the lay evidence of record. The Veteran is competent to report her subjective psychiatric symptoms, and the Veteran’s husband and family are competent to report their observations of her condition. However, neither the Veteran nor her family is competent to report that she has a psychiatric disability due to service. The diagnosis of a condition such as PTSD and the determination of the etiology of the disability are medical questions and require medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Circ. 2007). A review of the other medical evidence of record shows continued treatment for the condition but it provides no evidence linking the condition to the Veteran’s active service. Similarly, apart from the Veteran’s generalized belief that this this disability is related to service, there is otherwise no lay evidence in support of a nexus either. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim for entitlement to a psychiatric disorder, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a lumbar spine disorder. The Veteran contends that her lumbar spine disorder is related to her time in service. However, there are no service treatment records that indicate that she suffered from a back condition during her time in service or within one year after service. She alleges that she was in a car accident on her way to work that led to her disability. She states that she paid out of pocket for the repairs to the other car driver over a thousand dollars. See VA 21-526. However, there are no records pertaining to this incident. In addition, VA attempted to afford the Veteran a medical examination in connection with the Veteran’s claims. VA’s duty to assist is not a one-way street. If the Veteran wants help, she cannot passively wait for it in those circumstances where her own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 191 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). The record shows the Veteran was scheduled for a VA examination in June 2016, November 2016, April 2017, and May 2017 to determine the nature and etiology of her back disability. The Veteran was informed in letters dated June 2016 and March 2017 that a VA examination would be scheduled in connection with her claim, that a claimant that fails to report to an examination without good cause will have their claim rated based on the evidence of record and that she was to contact the medical facility on the appointment notice as soon as possible be she was unable to keep the appointment. The Veteran failed to report to these examinations. The record does not show that she was incarcerated at this time or in in-patient treatment for a medical condition. The record does not indicate that she was otherwise unable to attend this examination. The Veteran has not provided good cause for her failure to attend the examination or requested that a new examination be scheduled. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim will be rated based on the evidence of record. 38 C.F.R. § 3.655(a). The Board notes that a claimant has some responsibility to cooperate in the development of all facts pertinent to his claim and that the duty to assist is not a one-way street. Wood v. Derwinski, supra. In the present case, the Veteran has not appeared for any of the scheduled VA examinations, which is necessary to determine whether she is entitled to disability benefits. The Board acknowledges that the Veteran’s representative has requested another examination in its September 2018 Informal Hearing Presentation. However, the Veteran’s representative did not state why the Veteran failed to appear for any of the seven examinations previously scheduled in this case nor did the representative provide good cause for the Veteran’s failure to attend such examination. Indeed, the Veteran’s representative has not even confirmed that the Veteran would appear for such a hearing. This argument is therefore without merit. Therefore, the Board will decide this matter based on the evidence of record as it is currently developed. Post service treatment records show the Veteran complained about back pain. On April 27, 2006 the Veteran reported to her physician that she had low back swelling. The physician noted that while the Veteran alleged that the back pain was a result of a motor vehicle accident that there were no reports that say the neck and back pain originated from that time. Moreover, the Veteran medical record indicates that she is taking medication for a car accident that happened around 2000. See Medical treatment record- Govt Sept 13, 2006. On August 31, 2006 the Veteran reported that she was suffering back pains from being squeezed into an elevator. See Private treatment record Sept 13, 2006. The Board has also considered whether the Veteran is entitled to presumptive service connection for arthritis. However, there is no clinical evidence suggesting that such a disorder manifested within one year of the Veteran’s service discharge in June 1976. The Veteran was not diagnosed with an arthritis until July 2006. Therefore, presumptive service connection for arthritis, to include based on continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A veteran is competent to describe symptoms that he or she experienced in service or at any time after service when the symptoms he or she perceived, that is, experienced, were directly through the senses. See 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Buchanan, 451 F.3d at 1337. Once evidence is determined to be competent, the Board must determine whether the evidence is also credible. The former, the Court has held, is a legal concept, which is useful in determining whether testimony may be heard and considered by the trier of fact, while the latter 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). Credibility can be generally evaluated by considering interest, bias, or inconsistent statements, the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza, 7 Vet. App. at 506 (citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992)). In the present case, the Board finds that the Veteran’s statements regarding the in-service onset and continuity of her lumbar spine disorder are inconsistent with other evidence of record. The first medical evidence of any lumbar spine disorder is dated in 2006, about 31 years after the relevant period of service. The absence of post-service findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous back disability after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Further, the Veteran stated that she had been experienced mid-back pain since she was squeezed into an elevator and tried to use her arms to prevent it from closing in an August 2006 private treatment note. In a May 1976 Report of Medical History, the Veteran denied that she currently had, or that she ever had, recurrent back pain. She also denied that she ever had any illness or injuries other than those already noted in the May 1976 Report of Medical History. Therefore, the Board finds that any current, contradictory, assertions as to the Veteran’s onset of lumbar spine symptoms during service, and continuity of symptoms after service-advanced in support of this claim for monetary benefits, are deemed not credible. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant’s testimony). Accordingly, there is not a reasonable basis to conclude that the Veteran’s current disability was incurred in or is otherwise related to service. The Veteran has not raised any additional theories of entitlement to service connection and such theories have not been raised by the evidence of record. There is no doubt to be resolved; service connection for a lumbar spine disorder is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Iglesias, Law Clerk