Citation Nr: 1825955 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 17-37 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), claimed as related to military sexual trauma (MST). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Brendan Garcia, Esq. ATTORNEY FOR THE BOARD K. Anderson, Counsel INTRODUCTION The Veteran had active military service from December 1997 to August 1998. This claim comes to the Board of Veterans' Appeals (Board) from October 2015 and September 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. There is sufficient credible supporting evidence to corroborate the Veteran's claimed in-service stressor of a MST. 2. The Veteran does not have a diagnosis of PTSD. 3. A personality disorder may not be service connected as a matter of law, except as under circumstances not shown in this case. 4. The preponderance of the evidence does not establish that the Veteran has a psychiatric disorder that is causally or etiologically related to active duty. 5. The Veteran is not service connected for any disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.304, 3.307, 3.309 (2017). 2. A personality disorder, as shown here, is not a disease or injury within the meaning of the law providing compensation. 38 C.F.R. §§ 3.303, 4.9 (2017). 3. A TDIU rating is not warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of her claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the 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). When 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. 38 C.F.R. § 3.304(f)(5) (2017); see also Patton v. West, 12 Vet. App. 272, 277 (1999). 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. 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 without an identifiable cause; or unexplained economic or social behavior changes. Id. Additionally, under 38 C.F.R. § 3.304(f), VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for interpretation. Bradford v. Nicholson, 20 Vet. App. 200 (2006). Significantly, for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. See Bradford v. Nicholson, 20 Vet. App. 200 (2006). Where a Veteran serves 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 (2017). Congenital or developmental defects, to include personality disorders and mental deficiency, are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). This means that VA laws and regulations do not provide a basis for service connection of a personality or character disorder. A layperson is competent to report on the onset and continuity of her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit) recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When a claimant seeks benefits, and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has asserted entitlement to service connection for a psychiatric disorder. Specifically, she asserts that she suffered MST while in service, which caused her to suffer from PTSD. Following a review of the Veteran's service treatment records and her own statements, the Board concedes credible supporting evidence of in-service trauma. As such, this element of service connection has been met. The remaining questions are whether the Veteran has a current disability and whether that disability is related to service, including such trauma. In December 2017 the Veteran underwent a VA examination to determine whether there was evidence of a current disability and whether that disability is related to service. At the conclusion of the examination, the Veteran was not diagnosed with PTSD. It was determined that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM-5 criteria. The examiner did note several post-service mental health treatment notes. In June 2008 a treatment noted stated that the Veteran had depression with no treatment. A September 2009 treatment report indicates that she had depression, obsessive-compulsive disorder (OCD), and PTSD, but without any evaluation in the primary care note. In October 2011, the Veteran reported being depressed since kicking out her spouse two months previously. A December 2009 treatment note regarding prescription refills listed conditions of PTSD, OCD, and depression. The VA examiner discussed in the evaluation that the Veteran was treated at the Monarch Behavioral Health records showed a diagnosis of bipolar disorder not otherwise specified, borderline personality disorder, and alcohol use disorder, in early remission. Monarch Behavioral Health also reported that the Veteran's first mental health treatment was 10 years previously, for OCD. The examiner reached conclusions based on an evaluation using DSM-5 criteria, a review of the record, and the Veteran's self-report to the examiner that she has a diagnosis of PTSD. The examiner diagnosed the Veteran with personality disorder with borderline and dependent features. The examiner noted that the Veteran had a history of defiance with authority as noted in her service records, a history of stormy relationships, excessive dependency needs, overly intense anger, mood lability, and inconsistent sense of self, and self defeating decision making, poor coping skills, which according to the examiner, is all consistent with personality disorder. The examiner went on to state that personality disorders are developmental disorders, and people suffering from this disability often develop episodes of depression as a result of their poor choices and coping skills. The Veteran's military records show a diagnosis of a relationship problem only, with a provisional diagnosis of a personality disorder. While the Veteran did report the assault, there is no diagnosis of PTSD in service and no formal assessments of PTSD were found in her post-military records. As evidence to support her claim, the Veteran submitted a June 2016 PTSD DBQ that was signed by a master's level counselor/social worker. Although the social worker is a medical professional, there is no indication that this diagnosis is adequate for VA purposes. See Cohen, 10 Vet. App. at 130; see also 38 C.F.R. § 4.125. Additionally, there is no indication that social worker reviewed, or had access to, the Veteran's medical records. Moreover, the December 2017 VA psychologist's report specifically ruled out a diagnosis of PTSD and determined that the Veteran did not meet the diagnostic criteria for PTSD. As such, the overwhelming weight of the most probative evidence is to the point that the Veteran does not meet the diagnostic criteria for a finding of PTSD. The Veteran believes that she has a psychiatric disorder that is related to service, as a lay person, the Veteran has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of a psychiatric disorder are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of her psychiatric disorder(s), to include PTSD, is not competent lay evidence. At the Veteran's December 2017 VA examination, her diagnosis of a personality disorder was continued. The Board points out that a personality disorder is not a disability for which service connection may be granted; rather, it is considered a congenital or developmental abnormality. See 38 C.F.R. § 3.303(c). As VA regulations specifically prohibit service connection for congenital or developmental defects, the Veteran's diagnosed unspecified personality disorder is, therefore, not a disability for which VA compensation benefits may be awarded. Nevertheless, a superimposed acquired psychiatric disorder resulting from such personality disorder or representing an aggravation of the disorder may be service connected. See 38 C.F.R. § 4.127; VAOPGCPREC 82-90 (1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). However, there is no suggestion in the Veteran's records or by the VA examiner that there evidence that the Veteran has a superimposed acquired psychiatric disorder resulting from such personality disorder or representing an aggravation of the disorder. In the absence of any other psychiatric disability superimposed upon the personality disorder, the Board finds that service connection for the Veteran's personality disorder is precluded by law, and therefore not warranted. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive of the issue before the Board, the claim should be denied because of the lack of legal merit or the lack of entitlement under the law). Accordingly, the claim for service connection for an acquired psychiatric disorder must be denied. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. Neither the Veteran's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that a Veteran is unable to obtain or follow a substantially gainful occupation as a result of service-connected disabilities and has a single service-connected disability ratable at 60 percent or more, or two or more service-connected disabilities when one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability or disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is not service-connected for any disabilities. Therefore, the Veteran's claim for a TDIU rating must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. Also, VA will not deny a PTSD claim which is based on in-service personal assault without first advising the claimant of the types of information which may serve as markers for the MST event. 38 C.F.R. § 3.304(f)(5). An April 2014 letter advised the Veteran of the types of evidence and/or information deemed necessary to substantiate her claim, the relative duties on the part of the Veteran and VA in developing her claim, and the criteria for establishing an initial disability rating and the effective date of award. This letter further advised the Veteran of the criteria specific to a PTSD personal assault claim. Additional letters since that time have notified the Veteran of various types of information she could provide to assist in corroboration of her in-service stressor. The Veteran's responses, as well as the statements of her representative, indeed confirm her knowledge, as well as the knowledge on the part of her representative, of the type of evidence necessary to establish her claim. Therefore, the Board finds that VA has adequately fulfilled its duty to notify. VA also has a duty to assist a claimant in the development of the claim. This duty includes assisting the claimant in the procurement of relevant records, including service records and pertinent treatment records, and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished in this case, without prejudice to the Veteran. The RO obtained the Veteran's service treatment records (STRs) and service personnel records, which appear complete. Additionally, the RO has obtained all known VA clinical treatment records, as well as records in the possession of the Social Security Administration. Furthermore, the Veteran had the opportunity to present evidence and provide statements in support of her claim and was provided medical examinations. All necessary development has been accomplished to the extent possible and, therefore, appellate review of this claim may proceed without unduly prejudicing the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board is therefore satisfied that the AOJ has satisfied its duty to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for PTSD is denied. A TDIU rating is denied ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs