Citation Nr: 1825908 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 14-17 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In August 2014, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO. A transcript of that hearing is of record. As a matter of background, this matter previously came before the Board in August 2014, at which time it was remanded for further development. FINDING OF FACT The Veteran does not have a presently diagnosed acquired psychiatric disability; his reported in-service military sexual trauma cannot be confirmed. CONCLUSION OF LAW The criteria for service connection of an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters sent in March 2010 and September 2013. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). II. Service Connection The Veteran seeks service connection for an acquired psychiatric disability, claimed as PTSD, which he asserts is due to a military sexual trauma. After careful review of the evidence of record, the Board finds that the claim should be denied. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Generally speaking, in-service incidents must be verified by some documentation, be it via the Veteran's military personnel records, service treatment records, or other evidence. However, due to the sensitive nature of in-service personal assaults, VA is aware that such incidents frequently go unreported and therefore cannot be confirmed by review of a veteran's service treatment records. As such, the Code of Federal Regulations specifically addresses methods of verifying such a stressor. If a PTSD claim is based on in-service personal assault, 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, 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. 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 without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f)(5). The Board finds that the claim must be denied because the Veteran does not have a presently diagnosed psychiatric disability, nor can his reported sexual trauma be corroborated. Turning to the threshold issue of whether the Veteran has a present disability, he was seen in May 2006, at which point he had a negative PTSD screen result. He was first seen for a psychiatric disability in February 2010 by a VA provider who noted the Veteran's reported sexual trauma and diagnosed PTSD and depression. In April 2011, the Veteran's VA psychiatric treatment provider revised her prior diagnosis to rule out PTSD. Specifically, she noted his fixation on being denied service connection and disinterest in discussing treatment. She stated that his behaviors do not fit the pattern of a person with a history of sexual assault. She also noted prior denials of psychosocial or psychiatric symptoms in the period between separation and the present. Rather, she changed the diagnosis to mild recurrent depression with nicotine dependence, and marijuana, cocaine, and alcohol abuse. PTSD was explicitly ruled out as a diagnosis. Because of the contradictory nature of his treatment records, the Veteran was afforded a VA examination in September 2013 (See VVA, CAPRI, 9/12/2013). At that time, the examiner reviewed his entire available medical record, including his VA treatment records and service treatment records and conducted an in-person examination of the Veteran. He subsequently concluded that the Veteran did not meet the criteria for a diagnosis of PTSD, or any other acquired psychiatric disability, in conformation with the Diagnostic and Statistical Manual of Mental Disorders (DSM). Particularly, the examiner noted the 2011 medical record which ruled out PTSD as a diagnosis due to medical inconsistencies in the record. Other VA treatment records indicate intermittent psychiatric care, to include participation in a sexual trauma group, and prescription of medication. In 2016 the Board found the 2013 examination report to be inadequate because it failed to fully rectify the non-diagnosis with his various VA treatment records, and a new examination was ordered. In April 2016, a new examination was conducted. The examiner again declined to give a diagnosis of any psychiatric disability in conformation with the DSM. Particularly, the examiner reviewed the Veteran's entire case file and conducted an in-person examination and stated that a diagnosis of PTSD is not substantiated. Although that diagnosis was given in the past, a review of the records suggests that the nature of his symptoms, onset of symptoms, lack of decompensation in functioning while in the military, and variances in aspects of his reports of trauma throughout the appeal period do not support a PTSD diagnosis. There was no evidence of any psychiatric disorder incurred in the military. Ultimately, the Board finds the 2013 and 2016 VA examination reports to be persuasive, and finds that the Veteran does not have a presently diagnosed psychiatric disability for which service connection may be granted. The non-diagnoses found in those reports were made by psychiatric treatment providers, in contemplation of the Veteran's complete medical record and examinations, and address any possible diagnosis under the DSM. This is not to discount the Veteran's reported psychiatric symptoms, which he is certainly competent to report. However, symptoms alone do not constitute a confirmed diagnosis. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, diagnosis of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also 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). Particularly, when the claim is one for a psychiatric disability, the diagnoses must conform to the DSM. In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make a diagnosis of PTSD or any other psychiatric disability that conforms with the DSM, especially in light of the VA examiners' conclusions to the contrary and the fact that the evidence fails to demonstrate the onset of a psychiatric disability in service. See id. The Board further finds that the Veteran's reported military sexual trauma cannot be confirmed. In this regard, the Veteran reports he was sexually assaulted by three men during basic training. As noted above, incidents of sexual trauma often go unreported and therefore may be corroborated by other evidence. Unfortunately, in this case the Board finds insufficient evidence to support such a claim. The only supporting documentation in favor of the Veteran's reported sexual trauma are his own statements, and statements from his spouse and former significant other, who state he confided in them about the assault. These records were made many years after the reported assault occurred. Further, a review of the Veteran's medical and behavioral record throughout service and thereafter do not support the claim. His military personnel records do not include any evidence of behavioral changes. There were no requests to transfer assignments, no deterioration in work performance. In fact, his military work performance was generally reported as good. He did not report any psychiatric issues in service such a depression, panic attacks, or anxiety. There is no evidence of any psychiatric symptoms in his service treatment records. Neither were there any unexplained economic or social behavioral changes. The Veteran's post service medical records also deny psychiatric symptoms up until he filed in claim in 2010. Given the above, the claimed in-service assault has not been sufficiently corroborated in this case. Moreover, the Board finds that the Veteran does not have a presently diagnosed acquired psychiatric disability for which service connection may be granted. As such, the claim fails the first two criteria for service connection, namely, a present diagnosis and an in-service incident to which that diagnosis may be linked. As such, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102 (2017). ORDER Service connection of a psychiatric disability is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs