Citation Nr: 18156509 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-35 006 DATE: December 11, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT There is no competent, credible, and probative evidence of a diagnosis of PTSD based on a verified or corroborated incident of personal assault. The preponderance of the competent and credible, and the probative evidence indicates that the Veteran’s current psychiatric disorder began years after his active military service and was not caused by any incident of service CONCLUSION OF LAW The requirements for establishing service connection for a psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1968 to February 1971. This case comes before the Board of Veterans’ Appeals on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in service incurrence or aggravation of an injury or disease, and (3) a nexus or link between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shineski, 581 F.3d 1313 (Fed Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The nexus element may be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §3.303(a), (d); see also Davidson v. Shineski, 581 F.3d 1313 (Fed Cir. 2009). VA regulations recognize an additional, alternative, method of entitlement to service connection for certain chronic diseases. A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309 (a) (and not merely diseases which are "medically chronic"), including a psychosis, if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word 'chronic'), or manifests to 10 percent or more within one year of service discharge (under § 3.307). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303 (b), but the use of continuity of symptoms is limited to only those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. The presumption may be rebutted by affirmative evidence of intercurrent injury or disease which is a recognized cause of a chronic disability. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). For a chronic disease to be shown during service or in a presumptive period means that it is "well diagnosed beyond question" or "beyond legitimate question." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §3.303(d). Service connection may only be awarded to an applicant who has disability existing on the date of application, not for past disability. Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997); but see McClain v Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA’s adjudication of the claim). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (`1) a lay person is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); 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. The evidence required to support the occurrence of an in-service stressor is dependent on whether the Veteran was engaged in combat with the enemy. If the evidence established that a Veteran engaged in combat with the enemy and the claimed stressor is related to combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with his circumstances, conditions, or hardships of such Veteran’s service, his lay testimony alone may establish the occurrence and conditions of an inservice. 38 §U.S.C. §1154(b) (2012); 38 C.F.R § 3.304(f) (2017). If, however, the VA determines that the Veteran did not engage in combat with the enemy or that he did not engage in conduct but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony statements. Service department records must support and not contradict the claimant’s testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App 283 (1994); see also Fossie v. West, 12 Vet. App. 1, 6 (1998). When a PTSD claim is based on in service personal assault, evidence from sources other than the Veteran’s service records may corroborate Veteran’s account of the stressor indicate. 38 C.F.R. §3.304(f)(5); see also Patton v. West, 12 Vet. App. 272, 277(1999). Examples of such evidence includes law enforcement, rape crisis center, mental health trauma, hospitals, physicians, family members, roommates, 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 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 attacks without an identifiable cause, or unexplained economic or social behavior changes. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. 49 at 54 (1990). The Board has reviewed all the evidence in the Veteran’s claim file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has PTSD that is related to an assault during service. He claims that during service he was held down against his will and forced to perform sexual acts on his superior and another servicemember. After this incident occurred the Veteran was Absent Without Leave (AWOL) during May 1970 and began using heroin; he did not report the assault to the police or other superiors out of fear. The questions to be answered by the Board in this case are whether the Veteran has a current diagnosis of an acquired psychiatric disorder, whether there is corroboration of the Veteran’s non-combat stressor, and if so, whether the Veteran has an acquired psychiatric disorder that is proximately due to that verified stressor. The Board finds that the Veteran has a current diagnosis of a psychiatric disorder, and while there is evidence in this case that suggests that the claimed stressor did occur, there is no competent, credible, and probative evidence linking a current psychiatric disorder to include PTSD to that stressor. The Veteran’s service treatment records are negative for physical or mental treatment in service and for physical or sexual assault. As noted, the Veteran has stated that he did not report the assault in service. However, the record indicates that the Veteran had two periods of being AWOL, from May 4 to May 7, 1970, and then again from June 1970 to December 1970. On discharge separation in January 1971 the Veteran reported that he had been hospitalized for heroin addiction at a private hospital in 1968, 1969, and 1971. On physical examination at the time the Veteran was noted to be a heroin addict. In a subsequent progress note in January 1971, the Veteran was noted to have been just released from a hospital for heroin addiction and requested a mental hygiene consultation. The record also contains a July 1975 letter from D.Y., a day program director from Eagleville Hospital Community Clinic for Alcoholism and Addition submitted in support for a request for reclassification of the Veteran undesirable discharge. In the letter Mr. Y. indicates that the Veteran began his serious experiments with drugs at the age of 13 and from all behavioral indications was exhibiting all of the signs of drug addiction by the age of 17. He noted that the Veteran’s inability to function under the rigorous demands of Army life and his subsequent arrests and hospitalization were all indicators of the course of the disease. He indicated further that the Veteran had been an inpatient since February 1975, and was well on his way to successfully completing the program. He noted that he was positive that the Veteran’s behavior warranted his discharge, but in light of the increasing knowledge about the impact of drugs on young people, the cause was readily identified as the result of the disease of drug addiction. The Veteran was afforded a VA examination in January 2016. The examiner found that the Veteran did not meet the criteria required for a diagnosis of PTSD. However, he did find that the Veteran met the diagnostic criteria for a generalized anxiety disorder and opioid use disorder. As the time of the examination, the Veteran reported using opioid pills, barbiturates, and methamphetamine before service. His first heroin use was when he was AWOL which he used until 1989. He was in a methadone program from 1989 to 1999 and used heroin and oxycodone from 1999 to 2015 with his last drug use nine to ten months prior to the examination. The Veteran reported military stressors of being beaten at a “blanket party” and being sexually assaulted; he also reported being verbally abused when confined to the brig from January 7 to January 13, 1971 after being AWOL and following treatment for heroin addiction. After examination of the Veteran and review of the record, the examiner commented that documents in the record presented strong support that the reported traumatic events at least as likely as not occurred. However, the examiner also found that the Veteran did not report symptoms supporting a diagnosis of PTSD at that time, and it was less likely as not that he had PTSD associated with the reported in-service traumas. The examiner also noted that while the Veteran did report symptoms supporting a diagnosis of generalized anxiety disorder, he did not report that he had the onset or increase of anxiety disorder symptoms proximate to his military service. The Veteran’s reported focus of his anxious worries was unrelated to his reported in-service stressors. The Veteran was most worried about his own finances as he aged and about his children’s financial security. The examiner concluded that information available at present does not support a nexus between his generalized anxiety disorder and his military service, and therefore his generalized anxiety disorder was less likely as not caused by or the result of his experiences during service. As to the legal requirements to establish service connection as outlined above, the Board finds that the Veteran has a current diagnosis of generalized anxiety disorder; however, there is no competent and credible evidence of a diagnosis of PTSD. As noted above, the VA examiner did not find that the Veteran met the criteria for a diagnosis of PTSD. As to the likelihood that the claimed in-service events occurred, the Board notes that the 2016 VA examiner found that based on examination of the Veteran and the record, the reported traumatic events reported by the Veteran at least as likely as not occurred in service. In this regard, the Board notes that for personal assault PTSD claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. 38 C.F.R. § 3.304 (f)(5); Menegassi v. Shinseki, 638 F.3d 1379, 1382-83 (Fed. Cir. 2011); Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006); Patton v. West, 12 Vet. App. 272, 280 (1999). The examiner clearly found the Veteran’s allegations credible and that there was evidence of behavioral changes that corroborated his account of the stressor incidents. However, the missing element in this case is that there is no competent, credible and probative evidence linking a current psychiatric diagnosis to the reported events in service. In this regard, the 2016 VA examiner found that it was less likely as not that the Veteran’s generalized anxiety disorder is related to his service, and he provided an explanation for his conclusions. The Board finds this to be the most probative evidence for the required nexus element. The Veteran has asserted that he has a psychiatric disorder to include PTSD that is related to service; however, the Veteran has not offered probative and competent evidence establishing a nexus between the claimed disorder and service. Lay evidence may be competent to establish medical etiology or nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). A diagnosis of PTSD requires specialized training for determinations as to diagnosis and causation, as does a medical nexus opinion relating any other claimed psychiatric disorder to service, and are therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran lack probative value. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for an acquired psychiatric disorder to include PTSD. While there is corroboration of the claimed in-service events, the Veteran does not have a diagnosis of PTSD based on the purported stressor, and there is no competent and credible medical nexus that has been established to relate his current diagnosed psychiatric disorder of anxiety to his active duty service. As a preponderance of the evidence is against the claim for service connection, the benefit of the doubt doctrine is not applicable in this appeal and it must be denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwiniski, 1 Vet. App. 49, 55-57 (1991). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ashley Jamieson, Law Clerk