Citation Nr: 21065846 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-44 208 DATE: October 27, 2021 ORDER New and material evidence has been received, and the previously denied claim for service connection for a psychiatric disorder is reopened. Entitlement to service connection for a psychiatric disorder is denied. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for a psychiatric disorder was denied in January 2003 and January 2009 rating decisions. As the Veteran did not perfect his appeal as to the January 2003 rating decision, or appeal or submit new and material evidence within the applicable appellate period of the January 2009 rating decision, the decisions became final. 2. The evidence which has been secured since the last final denial regarding entitlement to service connection for a psychiatric disorder is both new and material. 3. The record does not contain credible supporting evidence that the Veteran was subject to military sexual trauma. The Veteran does not have a diagnosis of PTSD. The preponderance of the evidence is also against finding that the Veteran has a current psychiatric disorder that began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for reopening the Veteran's claim of entitlement to service connection for a psychiatric disorder have been met. 38 U.S.C. §§ 1145 (a), 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for entitlement to service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303. 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to April 1987 and from July 1987 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board virtual hearing held before the undersigned Veterans Law Judge in September 2020. The transcript of this hearing is associated with the claims file. 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a psychiatric disorder Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. §§ 3.160 (d), 19.20, 19.21, 19.22, 19.52. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, 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). The U.S. Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's claim for service connection for posttraumatic stress disorder (PTSD) was denied in a January 2003 rating decision. As no new and relevant evidence was filed in the year following the rating decision, and the Veteran did not perfect his appeal as to that decision, it became final. The Veteran's claim for service connection for bipolar disorder was denied in a January 2009 rating decision. As no new and relevant evidence was filed in the year following the rating decision and the Veteran did not file a notice of disagreement with that decision, it became final. Service connection for PTSD was denied in January 2003 in part because the Veteran's claimed stressor involving service in the Persian Gulf was not confirmed. Service connection for bipolar disorder was denied in January 2009 because there was no evidence of a nexus between the Veteran's current bipolar disorder and any event of service. While the new evidence does not contain a fully formed medical nexus opinion, the Veteran's September 2020 testimony to the Board and his written statements of record include lay evidence regarding a sexual assault in service not evaluated at the time of the prior final denials, and thus relevant to the medical nexus element. As such, new and material evidence relating to an unestablished element of the claim has been submitted since the prior final rating decision, the application to reopen the claim of service connection for a psychiatric disorder is warranted, and the appeal, to this extent, is granted. Having reopened the claim, the Board will proceed to address the underlying merits. The Veteran is not prejudiced by this action as the RO has also done so. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Service Connection 2. Entitlement to service connection for a psychiatric disorder Service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110, 1131. A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1164. Generally, service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304 (f). Regarding the second PTSD element as set forth in 38 C.F.R. § 3.304 (f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor varies depending on the circumstances of the stressor and the nature of a Veteran's service. In order to grant service connection for PTSD to a non-combat Veteran, there must be credible evidence to support the Veteran's assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). The law provides that if a PTSD claim is based on an in-service personal assault, which includes military sexual trauma (MST), a Veteran is required to provide corroborating evidence to substantiate the occurrence of the stressor. 38 C.F.R. § 3.304 (f)(5); Gallegos v. Peake, 22 Vet. App. 329 (2008). Examples of such corroborating evidence include but are not limited to records from law enforcement authorities, rape crises centers, mental health counseling centers, hospitals, or physicians; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these alternate sources. Examples of behavioral changes that may constitute credible evidence of a stressor include but are not limited to: request for 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 behavioral changes. 38 C.F.R. § 3.304 (f)(5). In cases involving personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107 (b). YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). 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). Most significantly, for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. See id; see also Patton, 12 Vet. App. at 278. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Evidence The Veteran's service treatment records are silent for complaints of, treatment for, and/or diagnoses related to a psychiatric disorder. The February 1983 pre-enlistment examination noted normal psychiatric examination. On a February 1986 period examination report of medical history, the Veteran checked "yes" to the question of whether he ever had or had now "depression or excessive worry." However, in the notes at the bottom of that form, the examiner noted that the Veteran "denies excessive depression or worry." The February 1986 periodic examination noted normal psychiatric examination. The Veteran's June 1987 entrance examination noted normal psychiatric examination, and he denied depression or excessive worry at that time. A June 1989 examination noted normal psychiatric examination, and the Veteran again denied depression or excessive worry at that time. An August 1991 National Guard enlistment examination noted normal psychiatric examination, and the Veteran again denied depression or excessive worry at that time. The Veteran's service personnel records do not show any service in Southwest Asia. The Veteran was discharged from his second period of service in September 1990 with a General Discharge. Service personnel records note that he received discipline in March 1990 and July 1990 for poor performance. He was shown to have used marijuana in June 1990. Mental status evaluations in August 1989 and May 1990 found no evidence of mental illness. On a June 2003 VA mental health triage note, the Veteran reported feeling depressed three to five days per week. The diagnosis was polysubstance usage, possible mood disorder. On a July 2003 VA mental health intake and assessment report, the Veteran reported using cocaine and alcohol. The examiner noted that the Veteran endorsed symptoms of PTSD and reported that "he was in Persian Gulf." The Veteran reported a history of physical and emotional abuse from his mother and step-father when he was a child. The Veteran reported that while in school he experienced frequent fights, difficulty concentrating, difficulty sitting still, problems with authority, and alcohol and drug abuse. The Veteran reported being sexually harassed in the military. "One of my superiors wanted to have sex with me, she wrote a bad report on me 'cause I wouldn't." The Veteran denied experiencing military sexual trauma. The assessment was alcohol abuse and cocaine abuse. A September 2007 VA PTSD screen was negative. On a June 2008 VA treatment record, the Veteran reported mood swings. Bipolar disorder was diagnosed. In a July 2008 written statement, the Veteran alleged that he had bipolar disorder that was never properly diagnosed during service. He stated that he self-medicated with marijuana in service and was discharged from his second period of service Under Honorable Conditions as a result. On a July 2008 VA mental health treatment note, the Veteran reported a history of cyclic moods over the last three years when he was abstinent from alcohol and illicit drugs. On a July 2008 treatment record, the Veteran reported that he saw a counselor he described as a "behavioral specialist" when he was a teenager. The Veteran noted that this was due to frequent fighting and multiple school suspensions. The Veteran stated that he was placed on medication at this time. In conjunction with a claim for Social Security Administration disability benefits, the Veteran was found to have a diagnosis of bipolar disorder in December 2009. A March 2012 VA PTSD screen was negative. On an October 2014 mental health note, the Veteran reported that he was "deployed for 90 days during Desert Storm." He reported experiencing severe mood swings. The Veteran reported having trouble with fighting and anger since he was a kid. He stated he had been charged with assault for breaking another child's jaw in middle school. He reported a history of childhood abuse. The examiner noted that the Veteran had been diagnosed with bipolar disorder, "however severe childhood physical and emotional abuse indicates complex PTSD." A January 2018 VA PTSD screen was negative. A VA examination was conducted in July 2018. The examiner noted diagnoses of alcohol use disorder, cocaine use disorder, and malingering. The examiner noted: When asked about mental health treatment prior to enlistment, [the Veteran] at first said that he had none. When I pointed out that records indicated that he had reported seeing "a behavioral health specialist" and having psychiatric medication that he took until he enlisted, he said that all of that was false except for a single appointment with a "behavioral specialist." When I ask why he had claimed premilitary psychiatric medication treatment, he said that he told this to a doctor so that he would get "more medication." [The Veteran] thrust forward that he has bipolar disorder. I systematically assessed for symptoms of depression, mania, and hypomania. Concerning depressive symptoms, [the Veteran] reported that he has had periods of feeling depressed that lasted at most "a few days." During these times, he eats less, sleeps more, feels worthless, and has reduced concentration. He stated that these symptoms began "a long time ago, about 2004." He denied present or past suicidal ideation. When asked about manic or hypomanic symptoms, he indicated that he has had episodes of elevated or expansive mood that last "not very long, such as a few hours at most." He denied experiencing other symptoms of mania or hypomania. [The Veteran] completed the Miller Forensic Assessment of Symptoms Test (M-FAST). This published test is used to detect individuals who are malingering or exaggerating their psychiatric symptoms. The normative data involves both clinical and nonclinical since of individuals known to be malingerers. [The Veteran] obtained an extremely elevated score on this instrument. 100% of the normative group who obtained a score at this level were malingering their psychiatric symptoms. [The Veteran] meets DSM-5 diagnostic criteria for alcohol use disorder, moderate; and cocaine use disorder, mild. Based on the information [the Veteran] provided about his current and past mood symptoms, he does not meet diagnostic criteria for any form of bipolar disorder. Rather, he described periods of depression lasting a few days at most and episodes of elevated mood lasting no more than a few hours. Since he is using substances that causes mood alteration (cocaine and alcohol), it would require a resort to mere speculation to determine whether his mood symptoms are substance-related or warrant other diagnoses. Nevertheless, whatever the etiologies of these symptoms might be, they do not meet DSM-5 criteria for any form of bipolar disorder. It is less likely than not that the Veteran has a diagnosis of bipolar disorder that was incurred in or caused by his complaints of excessive worry and depression during military service, and/or by the incident of abusive verbal behavior in 1990. The rationale for this opinion is the following: 1. Although the Veteran has a clinical diagnosis of bipolar disorder, the symptoms he reported during the current interview do not meet diagnostic criteria for any form of bipolar disorder. The accuracy of his past clinical diagnoses of bipolar disorder is questionable because there is evidence that he has intentionally exaggerated his symptoms in order to get medication. 2. The Veteran reported on one occasion in 1986 that he had at that time or in the past experience "depression or excessive worry," but it was written on the same form that he denied these symptoms. Concerning the incident of "abusive verbal behavior," this is a description of behavior that is nonspecific to bipolar disorder and in fact does not necessarily support that any mental health condition was present at that time. 3. The Veteran was not diagnosed with bipolar disorder until 2007, which was [17] years after military service ended. The Veteran meets criteria for Malingering, a condition that is not a mental disorder. This designation is based on the following: 1. The Veteran provided information during the current interview that was inconsistent with what he has told other providers during the last decade, and which was clearly skewed to support his efforts to receive financial compensation. 2. [The Veteran] thrust forward symptoms that were completely inconsistent with what he has reported to mental health providers. 3. The Veteran admitted that he had concocted an extensive premilitary mental health history in the past in order to get medication; if the premilitary mental health history had occurred as he described in the past, then he told a falsehood today by denying that it occurred, with the obvious intention of claiming military service as the cause of his mental health symptoms, AND he fraudulently enlisted in 1984 by denying that he had no prior treatment for a mental health condition. 4. There was objective psychological test evidence of symptom exaggeration, namely [the Veteran]'s extremely elevated score on the M-FAST, the veteran meets criteria for Malingering, a condition that is not a mental disorder. It should be noted that the presence of malingering does not mean that actual mental health symptoms are absent. However, it does mean that the Veteran's report of his own symptoms should not be taken at face value. On VA examination in August 2020, the examiner found that the Veteran did not have a diagnosis of PTSD. Rather, the examiner diagnosed bipolar disorder, unspecified, with psychotic features; alcohol use disorder, moderate; stimulant use disorder (crack cocaine), moderate; and cannabis use disorder, moderate. The examiner noted the Veteran reported: In the service, during and after basic training, he recalled anxiety, trouble sleeping. He was assaulted in 1986. After the assault he recalled anger, anxiety, depression and sleep disturbance. He was in many fights and had 5 summaries, CCF twice. Fighting gradually decreased and substance use increased. After discharge, he lost jobs related to anger and irritability. He was having nightmares and intrusive thoughts, and paranoid thoughts. He did not seek MH service until 2005 at the encouragement of this wife. He was diagnosed with Bipolar Disorder in 2005 which was reconfirmed in 2020. The examiner noted that the Veteran's reported stressor was being sexually assaulted by three other soldiers while taking a shower in September 1985. The examiner noted that she could not verify the stressor. "Cannot substantiate report of in-service MST; carries diagnosis of Bipolar Disorder- PTSD diagnosis not in evidence in [medical record.]" The examiner opined that the Veteran's current psychiatric disability was less likely than not incurred in or caused by the claimed in-service event, injury, or illness: The Veteran reported an in inservice sexual assault which is consistent with statement in support of claim. However, 7/30/2003 an MST Screening indicated "Patient denies experiencing MST in the past". He has consistently been diagnosed with Bipolar Disorder 9/30/14 and 3/9/2020. On10/13/2014 a mental health assessment indicated "Veteran has been diagnosed with Bipolar disorder, however, severe childhood physical and emotional abuse indicates complex PTSD". During the current evaluation the Veteran denied childhood emotional or physical abuse. Given the inconsistencies of reporting of MST, and lack of documented marker evidence, it is less likely as not that the Veteran experienced an in-service personal assault stressor related to military sexual trauma that has resulted in current post traumatic stress disorder symptoms or of Bipolar Disorder. The Veteran testified in September 2020 that "the sexual trauma happened towards the end of the first enlistment." He testified that he reported it to his sergeant, but that "I don't know where to contact him to this day or anything. And he told me I could, you know, either write him. But, but he asked who'd done it. But I was attacked from behind when I was in the shower. And I had like a towel thrown just -- threw over my head. And it was more than one assailant. So, I couldn't really identify who had did it. So, when he asked me who had done it I, I didn't -- I couldn't point the finger in no, no way. And I -- pretty much like I told him. I, I just left it alone." The Veteran reported that: And then, and the I tried to, you know, seek some counseling for it in my second enlistment but it didn't, it didn't seem to work and I started self-medicating to hide my pain. But it started, and I started going downhill from there, so I started self-medicating. I was ashamed of what happened in the military, so of course I made up some stuff. I mentioned -- I didn't want to mess up being great. Analysis As noted above, the Veteran's service treatment records do not show complaints, treatments, or diagnoses for a psychiatric disorder, to include as due to MST. Although the Veteran is competent to describe incidents occurring to him during service, his accounts are largely not credible due to inconsistencies. First, the Veteran has on several occasions reported that he served in the Persian Gulf during Desert Storm. The Veteran separated from service in September 1990. Operation Desert Shield began in August 1990, and Operation Desert Shield in January 1991. The Veteran's DD 214 and service personnel records do not show that he had any Southwest Asia service. Rather, he was stationed in Germany in August and September 1990. The Veteran has also variously reported that he suffered physical and emotional abuse as a child, then later denied this history. In July 2003, the Veteran reported being sexually harassed in the military. "One of my superiors wanted to have sex with me, she wrote a bad report on me 'cause I wouldn't." At that time, the Veteran denied experiencing military sexual trauma. The Veteran has not repeated the claim of sexual harassment in service to subsequent treatment providers. He has now reported that he was sexually assaulted by three fellow soldiers in 1985. Also in July 2003, the Veteran reported that he began abusing alcohol and drugs while in school, prior to service. He now testifies that he began using alcohol and drugs in service to self-medicate after he was sexually assaulted. Because of these inconsistencies, the Board finds that the Veteran's account of a sexual assault in service is not credible. This view of the Veteran's credibility also seems to be the opinion of the July 2018 and August 2020 VA examiners. The July 2018 examiner noted that the Veteran "intentionally exaggerated his symptoms in order to get medication"; that he "provided information during the current interview that was inconsistent with what he has told other providers during the last decade, and which was clearly skewed to support his efforts to receive financial compensation"; and that the Veteran showed evidence of malingering. The August 2020 examiner noted the Veteran's "inconsistencies of reporting of MST" and of his reports of childhood abuse. The July 2018 and August 2020 VA examiners' opinions are thorough and reliable; therefore, the Board affords them great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Both examiners provided an in-depth assessment of the Veteran's history, noted the inconsistencies in the Veteran's statements, noted over endorsement of symptoms, and ultimately found the Veteran did not have a psychiatric disorder related to in-service events. The opinions are consistent with the other medical evidence of record. Therefore, based on the evidence of record, the Board concludes that the Veteran is not shown to have a psychiatric diagnosis related to in-service personal assault/MST. The Board also finds the August 2020 opinion, which reflects the Veteran does not have PTSD, is probative evidence in this matter. The examiner has the appropriate training, expertise and knowledge to evaluate the claimed disability and she considered the Veteran's lay statements, service medical records, and the post-service clinical history. The examiner also provided a cogent rationale for her opinion. There are no competent opinions to the contrary. As there no competent medical evidence of a current diagnosis of PTSD, service connection for PTSD is not warranted. Service connection is not warranted for bipolar disorder. As noted, service treatment records do not show a psychiatric disorder was diagnosed in service. There is also no competent evidence of a psychosis in service or within one year after discharge from service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Further, the competent and probative VA opinions do not demonstrate that the Veteran has bipolar disorder that is related to service. (Continued on the next page) The Board has considered the Veteran's lay statements in support of his appeal. As noted, the Veteran has not been found credible in his report of an in-service assault or of other elements of his psychiatric history. Additionally, the Veteran has not been shown to have expertise or training in the field of psychiatry; thus, he is not considered competent to establish a nexus between his current psychiatric disorder and service. Thus, his lay opinion in such regard is outweighed by the VA medical opinions discussed above. He has not otherwise provided competent medical evidence that outweighs the probative value of the VA medical opinions. The preponderance of the evidence weighs against a nexus between the Veteran's current acquired psychiatric disorder and military service. There is no doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For this reason, service connection for an acquired psychiatric disorder is denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, Counsel 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.