Citation Nr: 18154615 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 18-44 458 DATE: December 4, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depression is denied. FINDING OF FACT An acquired psychiatric disorder, to include PTSD and major depression did not manifest in service and is not attributable to service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD and major depression was not incurred in or aggravated by service. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to November 1979. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). With regard to the Veteran’s claim, the Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any psychiatric disability that may reasonably be encompassed by a veteran’s description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the Court’s holding in Clemons, the Board has characterized the claim on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depression. Acquired psychiatric disorder The Veteran contends that he has an acquired psychiatric disorder, to include PTSD and major depression, that is related to service, in particular an incident in August 1979 when he was assaulted by fellow soldiers in the shower area and had a toothbrush shoved in his rectum. See, e.g., a statement from the Veteran dated May 2017. The Board notes a statement dated September 2017 from the Veteran’s brother that he noticed the Veteran was “different” after his return from service and became involved with drugs. Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). With regard to PTSD, establishing service connection for it requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a veteran’s present 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) (2017); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). If the Veteran did not engage in combat with the enemy, or the Veteran did engage in combat but the alleged in-service stressor is not combat related, the Veteran’s lay testimony, by itself, is not sufficient to establish the occurrence of the alleged in-service stressor. Instead, the record must contain credible supporting evidence which corroborates the Veteran’s testimony or statements. Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; see also Cohen, 10 Vet. App. at 142. At the outset, the Board finds that the Veteran has a current acquired psychiatric disorder. A July 2017 VA examination report documents diagnoses of PTSD and major depression. The Board also notes that the Veteran was diagnosed with a personality disorder during the July 2017 VA examination. However, personality disorders are not diseases or injuries within the meaning of the law. See 38 C.F.R. §§ 3.303, 4.9, 4.127. Upon review of all the evidence, lay and medical, the Board finds the weight of the evidence shows that an acquired psychiatric disorder was not incurred during the Veteran’s period of active service, did not have onset during active service, and was not otherwise caused by service. There is no evidence of record that the Veteran engaged in combat with an enemy during his time in service, nor has he so asserted. Therefore, his lay testimony alone is not sufficient to verify his stressor. Instead, the record must contain service records or other corroborative evidence that substantiates or verifies his testimony or statements as to the occurrence of these claimed events. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). As stated above, the Veteran has contended that he was assaulted in service. The applicable laws governing PTSD due to personal assault require corroborating evidence of the account. See 38 C.F.R. § 3.304(f)(5). Concerning this, the Board notes that the Veteran was provided with a VA letter in June 2017 informing him of the types of evidence that could support a PTSD claim based on personal assault. Nonetheless, in this case, corroborating type evidence has not been submitted or received, and the available evidence does not show behavior changes, deterioration in work performance, or other indicia of personal assault. The Board acknowledges the Veteran’s report of personal assault during service and his brother’s account that the Veteran’s personality was different following separation from service. However, the Board finds that these accounts of injury and incurrence of an acquired psychiatric disorder during service, while competent, are not credible. The Board notes that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence; however, the absence of contemporaneous medical evidence is one factor in determining credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) (“Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms”). Notably, the Veteran’s service treatment records are absent complaints of or treatment for the claimed in-service assault. Service treatment records do not reflect any history, complaints, treatment, or diagnosis of PTSD or major depression, or any other psychiatric disorder. Rather, the in-service November 1979 mental status evaluation report demonstrated he had normal behavior, level mood, clear thinking process, normal thought content, good memory, no significant mental illness, and affirmatively noted he was mentally responsible. Pertinently, the Veteran denied any mental health symptoms on his November 1979 Report of Medical History. Also, the Veteran reported during the July 2017 VA examination that he experienced trauma throughout his life. Indeed, the VA examiner documented premilitary difficulties including substance use, mental health treatment, documented difficulty sleeping, childhood sexual abuse, entering service due to job difficulties, truancy, and running away from home. In addition, the examiner noted that the Veteran’s behavior during the interview and testing cast some doubt on the veracity of his reporting. Specifically, the Veteran initially downplayed some of his difficulties in the interview and only acknowledged them when specific things seen in his record were inquired about. Further, the Veteran’s response to the MMPI2-RF was completely invalid as he endorsed a high frequency of unusual items across multiple domains. He also disclosed information during the examination that he had not shared with his residential treatment team. This included his own history of violence as well as considerable suicidal and homicidal ideation. The examiner reported that it was unclear if the Veteran was exaggerating symptoms or if he had been consciously not sharing these with his team. The Board finds that this evidence weighs against the Veteran’s claim and there is no other evidence that may be considered to corroborate the report of personal assault or military sexual trauma. The record also indicates that the Veteran did not report any alleged incident of personal assault from service until more than 30 years after separation from service. He also has not provided the names of the soldiers who allegedly assaulted him. Thus, the Board has relied on not only the absence of treatment records for complaints of, and treatment for stress and psychiatric symptoms in service, but also the evidence of record that is inconsistent with the Veteran’s contentions regarding the claimed in-service assault. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran’s statements, it may consider whether self-interest may be a factor in making such statements). Because an in-service disease, injury, or stressor has not been shown, to include any in-service symptoms associated with a psychiatric disorder, the Board does not reach the additional question of the relationship (nexus) between any current acquired psychiatric disorder and service. With regard to the Veteran’s diagnosed major depression, because his stressor cannot be verified, there is no probative evidence that there was in-service disease or injury. As noted above, the Veteran has not asserted that any other in-service events or injuries occurred to cause his psychiatric disorders. Further, the evidence does not show that his psychiatric disorder first manifested in service. Notably, as discussed above, his service treatment records are negative for any psychiatric symptoms. Therefore, with regard to his major depression, the second element of a service connection claim is not met. See Shedden, 381 F.3d at 1166-67. The Board finds that the preponderance of the evidence is against service connection for an acquired psychiatric disorder, to include PTSD and major depression. So there is no reasonable doubt to resolve in the Veteran’s favor, and the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Biswajit Chatterjee Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel