Citation Nr: 18143567 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 17-22 184A DATE: October 19, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, with memory loss due to military sexual trauma is denied. FINDING OF FACT The probative evidence of record preponderates against finding that the appellant has an acquired psychiatric disorder, to include posttraumatic stress disorder, due to service, to include due to military sexual trauma; and a psychosis was not compensably disabling within one year of the Veteran’s separation from active duty. CONCLUSION OF LAW An acquired psychiatric disorder, to include posttraumatic stress disorder, was not incurred or aggravated in-service, and a psychosis may not be presumed to have been so incurred. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1982 to May 1985, and March 1987 to August 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The case was certified to the Board by the North Little Rock, Arkansas RO. In April 2018 the Board remanded this matter for further development and the case has been returned for appellate consideration. The Board finds there has been substantial compliance with its April 2018 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Veteran contends that he has an acquired psychiatric disorder that is the result of in-service psychological trauma and an in-service sexual assault. After a review of the evidence, to include service treatment records and post separation medical records, the Board finds that the criteria for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, has not been met. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366. A psychosis may be presumed to have been incurred during active duty service if such a disorder was compensably disabling within one year following a veteran's separation from active duty. 38 C.F.R. §§ 3.307, 3.309. Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304 (f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). When, as in this case, a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate his account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Id. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Id. Behavior changes that may constitute credible evidence of the stressor. Examples include: a request for transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f)(3). Generally, a medical opinion diagnosing posttraumatic stress disorder does not suffice to verify the occurrence of a claimed in-service stressor where combat service is not shown. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Cohen, 10 Vet. App. 128, 142. In the context of a posttraumatic stress disorder claim based on personal assault, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) distinguished the holding in Moreau, and held “medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated.” Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Thus, the Court has made it clear that, for a claim for service connection for posttraumatic stress disorder based on in-service personal assault, favorable medical evidence diagnosing posttraumatic stress disorder based on the Veteran’s account of in-service assault must be weighed against all other evidence of record when determining whether the claimed in-service personal assault has been corroborated. Id. For stressors unrelated to combat, credible supporting evidence is necessary in order to grant service connection. The United States Court of Appeals for Veterans Claims has held that the regulatory requirement for “credible supporting evidence” means that “the appellant’s testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor.” Dizoglio v. Brown, 9 Vet. App. 163, 164, 166 (1996). A review of the service treatment records reveals no complaints, findings or diagnoses pertaining to an acquired psychiatric disorder. At a February 1987 enlistment examination prior to his return to active duty the appellant was clinically evaluated as psychiatrically normal. A June 1989 mental status examination did not reveal evidence of a psychotic thought process or a major affective disorder. No separation examination was conducted. A review of the postservice record reveals no competent evidence that a psychosis was compensably disabling within a year of the claimant’s separation from active duty. In December 2012, the Veteran was seen by VA. Following a mental status examination he was diagnosed with cocaine, alcohol, and cannabis dependence; as well as ecstasy and nicotine abuse. In April 2013 the appellant was seen by VA. The Veteran reported that while stationed in Drama, Greece as a weapons assembler/detonator he and his fellow servicemen overheard on the radio that one of the officers from his unit had been kidnapped and killed by terrorists. The appellant stated that he was then ordered to protect nuclear weapons. Following a mental status evaluation no pertinent diagnosis was offered. A separate study conducted by VA found that a diagnosis of posttraumatic stress disorder was suggested. By October 2013, VA records show that the claimant was found to have a history of depression and anxiety related to posttraumatic stress disorder. He was also found to have cocaine and marijuana dependency issues. VA records from August 2014 state that the appellant did not meet the criteria for posttraumatic stress disorder. The appellant was noted to report a history of childhood sexual trauma and while in a substance abuse treatment program in 2013 and 2014. In October 2014, the appellant was seen by VA and he reported a history of military sexual trauma while stationed in Greece in 1984. He described being approached by the wife of an officer, being offered drugs, and being forced to have sex with both the office and his wife. The appellant stated that he did not tell anyone about the incident. The record does show a current diagnosis in June 2015 of posttraumatic stress disorder by a VA psychologist. Turning to whether there is evidence of an independently corroborated in-service stressor which supports a diagnosis of posttraumatic stress disorder the Veteran reports that he experienced trauma when an officer in his unit was kidnapped and murdered. Alternatively, the Veteran has claimed his posttraumatic stress disorder was caused by being forced to engage in sexual activity with another service member, and a woman, in a hotel room, against his will. With regard to the first claimed stressor the Veteran reported that while stationed with a field artillery unit in Drama, Greece, (1983 to 1984), the Veteran and several fellow servicemen were traveling to their work destination when they overheard a radio call reporting that one of the officers from their unit had been kidnapped and killed. Military personnel records, tracking educational enrollment, reflect that the Veteran was in Greece from at least January to May 1984. The RO initiated two requests to the Joint Services Records Research Center (JSRRC) in April and May 2018 to further develop the Veteran’s details regarding this claimed stressor. In a July 2018 response the JSRRC indicated that after checking casualty information and additional historical information available to that agency, such information does not document the kidnapping and killing of a United States Army service member in Greece during 1983 and 1984. A records search was conducted at both the National Archives and Records Administration, and the U.S. Army Center for Military History but neither was able to locate copies of unit records for the Veteran’s unit assigned to Drama, Greece for the December 1983 to December 1984 time period. With regard to the second claimed stressor the Veteran reported being lured to a hotel room by another service member and his wife, where he was forced to engage in sexual activity or be threatened with consequences if he did not participate. The Veteran’s service records do not include any reference to this incident. He testified that he did not report the incident because he was threatened with an Article 15 action, and removal from the Army if he did so and because he feared other retaliation from the other participants. No official report was filed. The Veteran could not provide a specific location (other than a hotel room), or names of the alleged assailants. Additionally, the Veteran did not identify any possible sources of information and evidence that might corroborate his story, such as police reports or medical treatment records for assault. He could not provide supporting statements from any individuals with whom he might have discussed the incident, and he did not furnish copies of correspondence he may have sent to close friends or relatives in which he related information about the incident. In sum the Veteran did not submit any corroborating evidence. Additionally, the record contains no evidence of contemporaneous behavior changes that might support the occurrence of the stressor. While the appellant was administratively discharged from his second term of service in 1989 for a pattern of misconduct, i.e., the wrongful use of marijuana, disobedience of a lawful order, and failure to pay just debts; a review of the appellant’s first term of service, i.e., the period when the 1984 alleged assault took place, does not show evidence of behavioral changes. The Veteran was found to be psychiatrically normal when he began his second tour of active duty, i.e., after the alleged stressor occurred. The Veteran did neither offers, nor does the record contain, evidence of a transfer or a request for a transfer to a new duty assignment. Further, there is no evidence of a contemporaneous deterioration in work performance, and no unexplained economic or social behavioral changes. Given the amount of information supplied by the Veteran, with respect to this stressor, the Board finds no deficiencies in VA’s efforts to assist in development of the claim or to verify this claimed stressor. As previously referenced, VA treatment records show a diagnosis of posttraumatic stress disorder which the Veteran relates to his sexual assault. However, as the diagnosis of posttraumatic stress disorder related to military sexual trauma appears to rely wholly on the Veteran’s subjective history, this diagnosis is not probative evidence that the claimed in-service stressor occurred. Swann v. Brown, 5 Vet. App. 229, 233 (1993) (Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence.) Moreover, as noted above, “the appellant’s testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor.” Dizoglio. Although the Veteran has provided lay evidence linking his current psychiatric disorder to his military service, the most probative evidence of record does not verify any claimed in-service stressors, and no other event, injury, or disease has been shown to which a current posttraumatic stress disorder diagnosis can be linked. Absent a verified in-service event, injury, or disease to which a current psychiatric disorder may be linked, there can be no competent lay evidence of etiology. The Board notes that there is no evidence of an acquired psychiatric disorder during the appellant’s period of service, and there is no evidence that a psychosis was compensably disabling within a year of his separation from active duty. Further, no competent evidence suggests that an acquired psychiatric disorder is related to service. As there is no competent, credible evidence linking an acquired psychiatric disorder to service the preponderance of the most probative evidence is against the claim. While the Veteran may sincerely believe that his disability is due to service as a lay person untrained in the field of medicine he is not competent to provide such a diagnosis. The issue is medically complex and requires specialized knowledge and experience of a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder due to alleged military sexual trauma or otherwise. The benefit sought on appeal is accordingly denied.   As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the remains denied. 38 U.S.C. § 5107(b); See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Allen M. Kerpan, Associate Counsel