Citation Nr: 18161179 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 12-32 109 DATE: December 28, 2018 ORDER Service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD) and depression, is denied. New and material evidence having been received, the claim for service connection for migraine headaches is reopened. REMANDED Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. A psychiatric disorder was not shown during service or for many years thereafter, and the most probative evidence is against a finding that a current psychiatric disorder is related to service or a disease or injury incurred duty during a period of active duty for training (ACDUTRA) or an injury incurred during a period of inactive duty for training (INACDUTRA). 2. A July 1998 rating decision denied service connection for migraine headaches, and the Veteran did not perfect an appeal or submit new and material evidence within one year of that decision; evidence received since the July 1998 rating decision relates to an unestablished fact necessary to substantiate the Veteran’s service connection claim for migraine headaches. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 101, 1110, 5107 (2012); 38 C.F.R. §§ 3.6, 3.303, 3.304 (2018). 2. Evidence submitted to reopen the claim for service connection for migraine headaches is new and material, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marine Corps Reserve from April 1986 to April 1994, including multiple periods of active duty for training (ACDUTRA), and served on active duty from May 1997 to August 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran and her private psychologist testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in July 2017, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. The Board notes that in March 2011, the Veteran executed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, naming the American Legion as her representative. However, a representative from Disabled American Veterans represented her at the October 2016 Board hearing. In May 2017, the Board sent the Veteran a letter advising her that if she wishes to be represented by Disabled American Veterans, she must submit a VA Form 21-22 naming them as her representative. To date, the Veteran has not responded or submitted a new VA Form 21-22. Therefore, the American Legion remains her representative. See 38 C.F.R. § 14.631 (2018). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection for a Psychiatric Disorder Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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) Active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA which the individual concerned was disabled or died from injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101(21), (24) (2012); 38 C.F.R. § 3.6(a), (c), (d) (2018). ACDUTRA includes full-time duty performed for training purposes by Reserves and members of the National Guard, under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(c)(3). Service connection may be granted for injury or disease incurred while on ACDUTRA. 38 U.S.C. § 101(24). INACDUTRA is defined as duty (other than full-time duty) under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23). Service connection may be granted for injuries incurred while on INACDUTRA, but not for disease. 38 U.S.C. § 101(24). 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. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). 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. 38 C.F.R. § 3.304(f). The evidence required to support the occurrence of an in-service stressor varies depending on whether the Veteran was engaged in combat with the enemy. If the evidence establishes that a veteran engaged in combat with the enemy and the claim 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 such veteran’s service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(f). Where the record does not establish that a veteran engaged in combat with the enemy, assertions of in-service stressors, standing alone, cannot provide evidence to establish an event claimed as a stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, the claimant must provide credible supporting evidence that the event alleged as the stressor in service occurred. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). However, effective July 13, 2010, VA amended its PTSD regulations by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 75 Fed. Reg. 39, 843-39, 852. Essentially, the amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the claimed in-service stressor is related to “fear of hostile military or terrorist activity.” As such is not alleged here, the revised provisions do not affect the outcome of this claim. The Veteran seeks service connection for PTSD and depression, which she asserts were caused by sexual harassment during her Marine Corps Reserve service. In an August 2012 written statement, the Veteran indicated that she endured months of sexual comments, unwanted touching, and aggressive behavior while serving at Camp Lejeune and Camp Johnson from May 1987 through April 1989. She stated that she did not report the harassment, but she eventually requested and received a transfer to Cherry Point, North Carolina in April 1989, at which time the alleged harassment stopped. As a result, the Veteran stated that she experiences symptoms of depression, anxiety, anger, mood swings, hypervigilance, and avoidance. She also stated that due to her PTSD, she was unable to ride as a passenger in a car for a period of time because she could not give up control to ride in a vehicle she was not driving. Upon review of the record, the Board finds that the probative evidence of record is against a finding that a current psychiatric disorder is related to service or a period of ACDUTRA or INACDUTRA. Service personnel records show that the Veteran had two periods of ACDUTRA prior to April 1989. The first was from December 8, 1986, to April 30, 1987, which included seven weeks of training at Camp Lejeune, and the second was from July 18, 1988, to July 31, 1988. A Defense Finance and Accounting Service (DFAS) Payment Worksheet shows that the Veteran also participated in drills approximately two days a month between 1987 and 1989. An October 2017 correspondence from the VA Appeals Resource Center indicates that there is no evidence that the Veteran transferred units in April 1989. In June 1997, the Veteran requested a separation from service due to family hardship in order to care for her mother and son with special needs. To the extent that the Veteran claims to have experienced continued mental health symptoms since the alleged in-service harassment, the Board finds that her assertions are not consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that in weighing credibility, VA may consider inconsistent statements and consistency with other evidence of record). Many of the Veteran’s records from her Marine Corps Reserve service are illegible, and an October 2011 response from the National Personnel Records Center (NPRC) indicates that they are the best copies obtainable. However, a September 1995 report of medical examination shows that the Veteran was psychiatrically normal, and she denied any history of depression or excessive worry, nervous trouble of any sort, or frequent trouble sleeping on an accompanying report of medical history. Furthermore, the report of medical history did not list any psychiatric problems, and the Veteran specifically denied having any problems other than those noted. Service treatment records from her period of active duty in 1997 show no complaints of or treatment for mental health symptoms, despite records showing that she sought treatment for various other conditions. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Thereafter, the record shows no complaints of or treatment for mental health symptoms until approximately April 2008. An April 2008 psychological evaluation indicates that the Veteran reported being hit by a semi-trailer truck four years earlier and had symptoms of PTSD, including nightmares, distress when exposed to cues that resemble the traumatic event, hypervigilance, and avoidance of stimuli associated with the trauma. As a result, she stated that she did not ride as a passenger in cars and reported extreme anxiety when she was not in control. It was noted that her “PTSD began four years ago following an automobile accident.” In January 2009, the Veteran began treatment with her private psychologist, Dr. McInroy, at which time she reported being involved in an automobile accident in February 2004 and presented with symptoms of anxiety, depression, and anger. A February 2009 private psychiatric treatment record shows that the Veteran reported symptoms of anxiety, depression, social isolation, hypervigilance, decreased energy, poor sleep, nightmares, night sweats, and difficulty concentrating, which began after being involved in an accident in February 2004. Thereafter, a July 2009 private treatment record notes that the Veteran “suffered from PTSD from a prior motor vehicle accident in 2004.” An August 2009 Residual Functional Capacity Questionnaire completed by Dr. McInroy indicates that the Veteran had a diagnosis of PTSD “precipitated by a [motor vehicle accident] in 2004.” Notably, none of these treatment records mentions a history of in-service sexual harassment. The Board finds the contemporaneous medical evidence to be significantly more credible and probative than statements the Veteran made to VA and a VA examiner for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the Board can consider bias in lay evidence, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran in weighting credibility). The Veteran underwent a VA psychological examination in May 2018, during which she reported working in a misogynistic environment and being subjected to “unprofessional and inappropriate comments” while stationed at Camp Lejeune from April 1987 to June 1987. She also stated that during regular Reserve trainings from June 1987 to April 1989, she was assigned “poor jobs” due to being the “newbie” service member, was touched inappropriately while working on her hands and knees, and had the portable toiled shaken by male service members while she used the restroom. The Veteran reported first noticing depressive symptoms in 1997, following her separation from service; however, she stated that they did not have a negative impact on her work or social functioning. She further stated that after her 2004 motor vehicle accident, she experienced new symptoms of depression, hypervigilance, irritability, anger, anxiety, and problems with memory and attention. The examiner diagnosed the Veteran with PTSD and major depressive disorder and opined that it was less likely than not that any current psychiatric disorder was related to service. With respect to the diagnosis of PTSD, the examiner indicated that the in-service harassment described by the Veteran was not adequate to support a diagnosis of PTSD, and the Veteran’s trauma-related reexperiencing, avoidance, and other PTSD symptoms were related to the 2004 motor vehicle accident. With respect to the diagnosis of depression, the examiner indicated that there was no evidence to support the Veteran’s assertions that she received treatment for depression in 1997 and noted that the Veteran subsequently had a successful career in law enforcement for about 10 years. The examiner further explained that the Veteran described current depressive symptoms associated with the loss of her job in 2007 and functional impairment caused by her PTSD, which was not incurred in or caused by service. The Board has reviewed and considered the testimony and March 2012 letter from the Veteran’s private psychologist, Dr. McInroy, who opined that the Veteran’s PTSD was the result of military sexual trauma. However, the Board finds the opinion of Dr. McInroy to be of significantly less probative than that of the VA examiner, as it is inconsistent with the medical evidence of record, including Dr. McInroy’s own treatment records and statements he made prior to the Veteran’s March 2011 claim for service connection. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that “[a]n opinion based on an inaccurate factual premise has no probative value”). Notably, during her initial visit with Dr. McInroy in January 2009, the Veteran discussed the 2004 automobile accident and reported symptoms of anxiety, depression, and anger. There was no mention of in-service sexual trauma. Likewise on an August 2009 Residual Functional Capacity Questionnaire completed pursuant to the Veteran’s Social Security Disability Insurance claim, Dr. McInroy indicated that the Veteran’s PTSD was precipitated by the 2004 automobile accident. The Board finds the contemporaneous medical evidence and statements made prior to the Veteran’s claim for service connection to be significantly more probative and persuasive than statements made after the Veteran filed a claim for compensation. See Cartright, 2 Vet. App. at 25; see also Buchanan, 451 F.3d at 1337. To the extent that the Veteran believes that she has a psychiatric disorder that is related to service, the etiology of psychiatric disorders is not a matter capable of lay observation and requires medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 13472, 1376-77 (Fed. Cir. 20047) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Accordingly, the Veteran’s opinion concerning the diagnosis or etiology of a claimed psychiatric disorder is not a competent medical opinion. Based on the foregoing, the Board concludes that the preponderance of the probative evidence is against a finding that a current psychiatric disorder was incurred in or caused by service. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. Reopening Service Connection for Migraine Headaches A final claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). Moreover, a new theory of entitlement is not a basis for reopening a claim, but if evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). In a July 1998, rating decision, service connection was denied for a migraine headaches, and the Veteran did not perfect an appeal or submit new and material evidence within one year of that decision. Therefore, the July 1998 rating decision is final. See 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (2018) In March 2011, the Veteran filed a claim to reopen service connection for migraine headaches. In a May 2011 rating decision, the RO reopened the claim, but denied it on the merits. At the time of the July 1998 rating decision, the substantive evidence of record included the Veteran’s service treatment records showing treatment for migraines on several occasions between May 1997 and August 1997 and a November 1997 VA examination report showing that the Veteran reported receiving treatment for migraines in 1987 and 1993. The Veteran’s claim was denied because the evidence of record showed that her migraines existed prior to her period of active duty in 1997 and were not aggravated by that period of service. Since the July 1998 rating decision, the evidence of record includes statements from the Veteran and an opinion from her private psychologist that her migraines were caused or aggravated by the harassment she allegedly endured during her Marine Corps Reserve service from 1987 to 1989. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed). As this new evidence relates to an unestablished fact necessary to substantiate the Veteran’s service connection claim for migraines, the Board finds that the Veteran has submitted both new and material evidence, and the claim is therefore reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, 24 Vet. App. at 117-120. REMANDED ISSUES The issue of entitlement to service connection for migraine headaches is remanded. The Veteran asserts that her migraines were caused or aggravated by the alleged harassment she endured during her Marine Corps Reserve service at Camp Lejeune and Camp Johnson from 1987 to 1989. Given that many of the Veteran’s records from her Marine Corps Reserve service are illegible, the Board finds that a VA medical opinion should be obtained with respect to the question of whether her migraines were caused or aggravated by the alleged harassment she endured during those periods of ACDUTRA and INACDUTRA. Additionally, as the record shows treatment for migraines on several occasions between May 1997 and August 1997, and opinion should also be obtained with respect to the question of whether her migraines were aggravated by her period of active duty service. The matters are REMANDED for the following action: Provide the claims file to a VA examiner to obtain an opinion with respect to the Veteran’s service connection claim for migraine headaches. If another examination is deemed necessary to respond the questions presented, one should be scheduled. After a review of the claims file, the examiner should answer the following: a. Is it at least as likely as not (50 percent or higher probability) that the Veteran’s migraine headaches were caused or aggravated (permanently worsened beyond normal progression) by the alleged harassment she endured during her seven weeks of training at Camp Lejeune in 1987; her period of ACDUTRA from July 18, 1988, to July 31, 1988; and/or her monthly drills from 1987 to 1989? b. Is it at least as likely as not (50 percent or higher probability) that the Veteran’s migraine headaches were aggravated (permanently worsened beyond normal progression) during her period of active duty service from May 1997 to August 1997? A rationale for all opinions should be provided. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banister, Counsel