Citation Nr: 1815015 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 12-00 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for psychiatric disorder, to include depression, anxiety and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a stomach condition. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to August 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) regional Office (RO) in Nashville, Tennessee. These matters were previously before the Board in July 2016. The Board remanded the matters for further development. The issue of entitlement to service connection for a stomach condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT PTSD was not manifest during service and is not attributable to service. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (West 2015); 38 C.F.R. § 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection The Veteran contends that his currently diagnosed PTSD is due to his service in Germany, specifically as a result of personal physical assault by a drill sergeant. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Furthermore, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-V); 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). 38 C.F.R. § 3.304(f)(5) provides that, in claims seeking service connection for PTSD based on a personal assault in service, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; 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. The Veteran has maintained that while on active duty he was struck in the stomach by a drill sergeant, which caused him to double over and cough up blood. He has further stated that he was never treated for the injury while in-service because the same drill sergeant prevented him from going. The Veteran maintains that his psychiatric disabilities have stemmed from this traumatic incident. Review of the Veteran's contemporaneous military personnel records reveals that the Veteran sought, and was provided, a hardship discharge from active duty based on financial distress and the needs of his family. In support of his application the Veteran submitted statements from the doctors of his mother and father, friends, his pastor, family members, teachers, law enforcement, letters to and from the Office of the President and congressional representatives. Following his hardship discharge the Veteran was ordered to report for Active Duty for Training (ACDUTRA) in June 1967 as a part of his reservist obligation. The orders were returned as unclaimed and the Veteran failed to report as ordered. In August 1967 the Veteran filled out a questionnaire regarding his missed ACDUTRA and included a narrative statement that he knew he was " supposed to be somewhere on the [third of] June" but that his failure to report was not his fault and that if he had orders and instructions he would have reported. The Veteran cited to his hardship discharge. In December 2009 the Veteran submitted a signed statement by another service member who served with the Veteran and who claimed to have witnessed the assault on the Veteran. In January 2010 the Veteran's spouse submitted a statement describing a noticeable change in the Veteran's personality when he was discharged. She described the Veteran as "happy go lucky" prior to enlistment and "quiet and didn't want to talk much" when he returned. The Veteran's spouse also indicated that she had received a letter from the Veteran describing the in-service assault. The Veteran's youngest sibling submitted a similar statement in February 2010. In March 2010 the Veteran was examined by private psychologist Dr. S.J., at which time the Veteran and his spouse were interviewed. Dr. S.J.'s conclusion was that the Veteran was "so traumatized during basic training in the Army that he was unable to get past it" and that he had developed mental disorders such as depression, panic attacks, PTS D, and Obsessive Compulsive Disorder. The examiner indicated that the Veteran was visibly shaken when he described the events surrounding the claimed in-service assault. The Veteran's description of the assault was consistent with his previous statements. However, the Veteran's period of honorable active duty service was described as being from 1965 to 1968. This was inaccurate as the Veteran was discharged pursuant to hardship in August 1965 after a period of less than 4 months. The Veteran's spouse reiterated that she had known the Veteran all her life and that his "carefree and easy going" nature was changed after he was discharged from active duty and "he was a different man." In June 2010 the Veteran submitted a statement regarding the claimed assault by his drill sergeant. In addition to reiterating the circumstances of the assault, the Veteran described a further verbal assault when the drill sergeant came to him in the barracks that evening. In November 2011 the Veteran had a follow-up evaluation with Dr. S.J. his private psychologist. Dr. S.J. stated that her previous opinion remained the same, but clarified that she had considered the statements of a service member who witnessed the claimed in-service assault, in addition to the statements of the Veteran and his wife. A February 2014 Report of General Information describes a telephone contact between RO personnel and the former service member who authored the supporting statement for further clarification of that Veteran's records for basic training verification. The service member, E.O. stated on the phone that he was in the same basic training unit as the Veteran but "never saw [him] get punched in the stomach by a drill instructor." He further indicated that he did not remember signing the statement previously submitted. E.O. was asked if he would submit a statement. In a written statement received that same day, E.O. reiterated what he said on the phone. In March 2014 the Veteran had a follow-up evaluation with Dr. S.J., his private psychologist. Dr. S.J.'s opinion remained the same and Dr. S.J. stressed that the Veteran had been "consistent in reporting his experiences and symptoms" and that his wife has corroborated his statements. Dr. S.J. further stated that "psychological injuries are internal and invisible...I rely on my experience and training for over 25 years in dealing with disorder such as [the Veteran] has." In August 2016 the Veteran had a third follow-up evaluation with Dr. S.J., his private psychologist. The opinion was the same and Dr. S.J. again stressed that the rationale for the opinion was based on the Veteran's symptoms, the PTS D criteria, and the consistency of the Veteran's, and the Veteran's wife's, statements regarding his experiences in-service and shift in personality prior to and after service. In September 2016 the Veteran underwent an initial PTSD examination. The examiner identified the Veteran's in-service assault and the lack of medical care that the Veteran received following the incident. The examiner further described, in detail, the Veteran's post-service mental health symptoms, including those specifically present upon objective examination. The examiner's ultimate assessment was that based on the findings of the examination and medical records the Veteran met the diagnostic criteria in the DSM-V for a diagnosis of PTSD. Furthermore the examiner related the Veteran's PTSD symptoms to his in-service stressor, identified as the personal assault, which was sufficient to support the diagnosis of PTSD. A second VA examiner confirmed these findings in a March 2017 VA mental health examination. Both opinions were based heavily on the reported history provided by the Veteran. In May 2017 the Veteran submitted a statement stressing the facts surrounding his claimed in-service assault. The Veteran stated that, despite the February 2014 letter and telephone call concerning his fellow former service member, he and his wife witnessed him writing and signing his previously submitted in December 2009. Based on a review of the complete record, the Board finds that entitlement to service connection for PTSD is not warranted. The Board acknowledges that the Veteran has been diagnosed with PTSD by private psychologists and confirmed in this diagnosis by the VA psychiatrist who administered the September 2016 VA initial PTSD examination. The Board further acknowledges that the VA examiner's opinion found that the Veteran's symptoms and description of the claimed in-service assault were sufficient to support the diagnosis of PTSD. The Board also acknowledges that it is well established that a medical opinion may be used to corroborate a personal-assault stressor. See Menegassi v. Shinseki, 638 F. 3d 1379, 1381 (Fed. Cir. 2011). However, the Board finds that the medical opinions of record are all based primarily on the Veteran's statements regarding an in-service personal assault, which the Board does not find credible. The opinions and supporting rationale of the private and VA examiners corroborate the personal-assault stressor based on the Veteran's statements regarding the details of the claimed assault. There was no additional independent evidence to corroborate these statements. The Board notes that there was also some corroboration of these events in the 2009 statement by E.O. who served with the Veteran but as E.O. has since denied his witnessing the incident, the Board assigns little probative value to the statement. The Veteran's spouse has stated that she was informed of the specific event after it happened and directly witnessed a change in the Veteran's personality between the time he left for enlistment to his discharge. While she is competent to state what she directly witnessed, the claims file does not include the referenced contemporaneous letter from the Veteran following the claimed assault and would have been based, in any case, solely on the Veteran's statements. The credibility issues additionally stem from the in-service evidence of record contemporaneous to the timeframe of the Veteran's claimed in-service assault. The Veteran's military personnel file contains multiple letters from the Veteran in support of his application for a hardship discharge. The hardship was the sole reason the Veteran sought, and was granted, a discharge from active duty. There is no indication in the Veteran's correspondence of in his STRs or personnel records to corroborate that the Veteran had sustained an assault in-service. The Veteran's separation examination noted that he had stomach trouble, but clarified that the trouble referred to by the Veteran was an ulcer that did not cause the Veteran any actual discomfort. Following his hardship discharge from active duty the Veteran failed to report for his ACDUTRA reservist obligation which he indicated he was not aware he had. In September 1968 he was honorably discharged from his reservist obligation, also for hardship. Therefore, given the lack of credible evidence to corroborate the Veteran's personal-assault stressor the Board finds that the criteria for service-connection for PTSD as due to a personal assault have not been met. 38 C.F.R. § 3.304(f). In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 54-55. ORDER Entitlement to service connection for PTSD is denied. REMAND The Board's prior remand characterized the Veteran's claim for service connection as, alternatively, a condition that preexisted military service and was aggravated by such service. The Board remanded the issue, in part, to obtain an opinion addressing this theory of entitlement. Pursuant to the Board's remand the Veteran was afforded multiple VA examinations for a claimed stomach condition. However, the question of whether there was a preexisting condition that was aggravated was not answered. As there was no opinion offered on this question the Board finds that there was not substantial compliance with the Board's prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, on remand an addendum opinion must be obtained to determine whether the Veteran had a preexisting stomach condition that was aggravated by his active duty service. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the March 2017 examiner (or, if unavailable, from a medical professional with appropriate expertise) and obtain an addendum opinion. The Veteran's entire claims fil should be made available to the examiner for review in connection with the opinion. If the examiner determines that opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate VA medical examination. The examiner should identify all current stomach conditions found on examination and diagnosed since the filing of the claim. For each diagnosed stomach condition, the examiner must provide an opinion to the following: (a) Does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran had a stomach condition that existed prior to his military service? In answering this question, the examiner should comment on the May 1965 Report of Medical History where the examiner wrote "civilian dr told him that he has a ulcer -does not complaint actually of any discomfort." (b) If the answer to (a) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the preexisting condition was NOT aggravated by service or that any increase in disability was due to the natural progression of the disease? The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Then readjudicate the Veteran's service connection claim. If the benefit sought remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs