Citation Nr: 21065047 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 13-30 802 DATE: October 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and pedophilia is denied. FINDING OF FACT The preponderance of the evidence is against a finding the Veteran's acquired psychiatric disability, to include PTSD and pedophilia, began during service or is otherwise related to an in-service injury or event, to include an in-service personal assault. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and pedophilia, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1967 to September 1971 and May 1978 to July 1990. This matter comes before the Board from a June 2011 rating decision. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in April 2017. The transcript is in the record. This matter was previously denied by the Board in an October 2017 Board decision. In July 2018 the United States Court of Appeals for Veterans Claims issued an Order granting a Joint Motion for Remand (JMR) filed by the parties. The Board has since remanded the matter in February 2019 and June 2021. 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that his current psychiatric disabilities are the result of his active service. He states he sought mental health care in service and that he was sexually assault during the course of that treatment. As a result of the in-service assault, he reports he experienced depression and sexual deviation, which involved him engaging in sexual relationships with three male teens, one male adult, and two female adults. It has also been contended that the Veteran's psychiatric disability onset before entrance into the service and his military service aggravated that disability. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304 (f). The Veteran has a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125. There is also evidence of other psychiatric diagnoses, including unspecified pedophilia disorder. The first element of service connection has been satisfied. 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 the veteran engaged in combat with the enemy and the claimed 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 the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f). Where VA determines that a veteran did not engage in combat, the veteran's lay testimony, by itself, will not be sufficient to establish the alleged stressor. Instead, the record must contain service records or other independent credible evidence to corroborate the veteran's testimony as to the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Those service records which are available must support and not contradict the veteran's lay testimony concerning the noncombat stressors. Doran v. Brown, 6 Vet. App. 283, 289 (1994). If a PTSD claim is based on personal assault in service, evidence from sources other than the veteran's 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. 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. The question of whether a Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. The Board notes that the Veteran reported the onset of depression and anxiety during his childhood as well as reports of incidents in-service. Such raises the preliminary question of whether the Veteran's service aggravated a pre-existing psychiatric disability. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or diseases existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111, 1137; VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. Aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Veteran reported no psychiatric symptoms or history in his September 1967 enlistment examination, nor were any psychiatric symptoms noted upon examination. Further, while he was seen for mental health counseling in 1968, it is noted that the record is otherwise silent for complaints, treatment, or diagnosis of any psychiatric disorder. The Veteran even denied having any psychiatric problems in January 1988 and June 1990. The July 2021 VA examiner also opined there was no clear indication of a psychiatric disorder that pre-existed the Veteran's enlistment. The Veteran is presumed sound upon his entrance to the military. Turning to the question of direct service connection, the Veteran relates is PTSD to an in-service personal assault that occurred when he sought mental health counseling. He asserts that he was assaulted by the psychiatrist during his mental health appointments. The Veteran indicated he did not report the incidents and did not understand that what had happened was assault until years after the event. In short, the Veteran did not officially report the purported sexual assault. As to his narrative of the personal assault, he has been consistent. He is also found to be competent to report the incident. The VA has attempted to obtain the mental health notes from the Goodfellow AFB; however, an August 2020 communication indicates there are no records for the Veteran at the base. The Veteran has argued that the treatment notes do not exist as he was being assaulted by the doctor he was seeing and thus the notes would be proof of the alleged abuse. However, while it would be unlikely the actual assault would be documented in medical records, it would be expected that scheduled appointments for mental health visits would be documented, even if the substance of those visits was not documented. There are no indications the Veteran's medical records are incomplete. There is evidence the Veteran sought treatment for a variety of ailments throughout his military career. Thus, while the VA usually has a heightened duty to assist a Veteran in developing his claim when his records were lost or destroyed, in this case the Board finds there is no heightened duty as the evidence of record indicates the records do not exist rather than that they were destroyed or lost. The Board has reviewed the case file and does not see any evidence to corroborate the in-service personal assault occurred. The service treatment records (STRs) do contain a notation of treatment at the mental health clinic in May 1968. This note indicates the Veteran could benefit from a short-term prescription and that he should return in three weeks. Nothing in the records indicates the Veteran returned as there are no additional treatment notes for mental health. The Veteran denied having any psychiatric problems in January 1988 and June 1990. Further, the record does not contain markers indicating the Veteran experienced a personal assault in-service. The Veteran voluntarily re-enlisted, was promoted throughout his 15-year military career, and there are no indications of patterns of misconduct. Moreover, and of significant import, though the Veteran has reported the in-service assault to various mental health professionals none have indicated there is sufficient evidence to corroborate the claimed in-service personal assault. After reviewing and discussing the record, the August 2021 examiner found there was no evidence to support that the Veteran was sexually assaulted in service. The Board notes the January 2021 VA examiner stated the Veteran was assaulted by a military psychiatrist. However it is unclear what evidence was used to support this assertions as no rationale/explanation was provided. Further, as the Board discussed in its June 2021 Remand, the January 2021 VA examiner's opinion is contradictory as in one section it indicates the alleged assault took place, and in another section states the alleged assault did not take place. The lack of explanation and contradictory findings lowers the probative value of the opinion. The January 2021 opinion remains inadequate to support a finding the Veteran was assaulted in-service. Service connection for a psychiatric disability based on an in-service personal assault must be denied and the in-service stressor event could not be corroborated and thus the second element is not met. As discussed above, there is a single notation of treatment at the Psychiatric Clinic in 1968 and there is no evidence of a follow-up visit, treatment, or medication prescription. Many years later, the Veteran sought treatment for a mental health condition. The August 2021 VA examiner opined it was less likely than not that the Veteran's treatment in-service is related to his current diagnosis of PTSD and pedophilia. The examiner explained the Veteran's treatment in-service was because he "missed his family" and this was a few months after entering the service so it would be in the time expected for family/adjustment issues. The examiner indicated this report does not support an onset of pedophilia or PTSD and that those currently diagnosed disorders are not related to his in-service treatment. Further, as previously noted. the Veteran denied any psychiatric issues in January 1988 and upon his separation from service in June 1990. Service connection for a psychiatric disability based on an in-service treatment for a mental health condition must be denied. The Board is aware that it may not rely on the absence of evidence as substantive negative evidence. However, the exception is when there is an evidentiary basis establishing that a fact in question would ordinarily be recorded. See Horn v. Shinseki, 25 Vet. App. 231, 239 & n. 7 (2012) (citing Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) and Kahana v. Shinseki, 24 Vet. App. 428 (2011)); see also AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013). In this case, the evidentiary foundation is the Veteran's statements about markers in the record simply could not be found, for example any record of continued mental health treatment in-service or evidence of work deficiencies. Although the Board is mindful of the fact that evidence is often missing or lost after many years, the lack of this information in the present case is a fact supporting the Board's finding. Pursuant to 38 C.F.R. § 3.304 (f)(5), the Veteran was provided with an opportunity to submit statements and/or additional evidence to support his claim. However, the Veteran has not provided additional evidence beyond his own statements, and those statements discussed above. Thus, although the Board finds the Veteran's lay statements of in-service personal assault are competent evidence, no supporting evidence, as required by VA regulation, has been submitted. The preponderance of the evidence is against the claim. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. The claim for service connection for an acquired psychiatric disorder, to include PTSD and pedophilia is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.