Citation Nr: 21071166 Decision Date: 11/30/21 Archive Date: 11/29/21 DOCKET NO. 17-39 791A DATE: November 30, 2021 ORDER 1. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. REMANDED 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy involving the sciatic nerve is remanded. 3. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy involving the sciatic nerve is remanded. FINDING OF FACT The Veteran did not serve in combat; his allegations of being a victim of a personal/sexual assault in service are not corroborated by credible supporting evidence; he does not have a diagnosis of PTSD based on a corroborated stressor event in service; and is not shown to have any acquired psychiatric disability that was manifested in or shown to be etiologically related to his service. CONCLUSION OF LAW Service connection for a variously diagnosed psychiatric disability, to include PTSD, is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1966 to March 1968, and from November 1990 to August 1991. These matters are before the Board on appeal from December 2015 and June 2017 Department of Veterans Affairs (VA) rating decisions. In his December 2017 substantive appeal, the Veteran elected a Board videoconference hearing; however, he withdrew the hearing request in an October 2021 statement. 1. Entitlement to service connection for a psychiatric disability, to include PTSD, is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Generally speaking, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Cohen v. Brown, 10 Vet. App. 128, 142 (1997). That is to say, a stressor usually cannot be established as having occurred merely by after-the-fact medical nexus evidence. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). If, as here, a PTSD claim is based on an alleged personal or sexual assault in service, evidence from sources other than the Veteran's service records may corroborate an account of the stressor incident. 38 C.F.R. § 3.304(f)(5). 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. See M21-1 IV.ii.1.D.17. 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 Veteran contends that he has PTSD due to personal assault in the military. He has reported a sexual assault by his drill instructor in April 1966, after he passed his weapons qualification during basic training and the instructor took him to his quarters to celebrate. He contends that the drill instructor gave him something alcoholic to drink that caused him to pass out, and when he woke up the instructor was molesting him. He contends that when he realized what was happening, he jumped and pulled his pants up, the drill instructor asked the Veteran if he liked what he did, to which the Veteran said "no", and the instructor did not say anything else before taking him back to his unit. He contends that he was afraid and embarrassed, and the assault has caused him to suffer depression, nightmares, and difficulty sleeping for five decades. He stated that he did not report or tell anyone about the incident, and he has not sought counseling. The Veteran's STRs are silent for psychiatric complaints, findings, treatment, or diagnosis. On February 1968 service separation examination, psychiatric clinical evaluation was normal; in a contemporaneous report of medical history, he denied any history of frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, or nervous trouble of any sort. On February 1992 Medical Board examination, psychiatric evaluation was normal; in a contemporaneous report of medical history, he denied any history of frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. On February 2007 VA general medical examination, the Veteran's behavior and comprehension were normal, his affect was appropriate, his memory was intact, and there were no signs of tension. In an August 2007 statement, the Veteran stated that having lower back and wrist pain so frequently decreases his quality of life and therefore leads to depression. On July 2010 and June 2012 VA treatment, depression and PTSD screens were negative. In a May 2016 statement, the Veteran stated that his "rapist used coercive methods to make me turn up at his house and I felt this would be used against me. Since I went willingly, I felt it was my fault." He stated that, as a sexual assault victim, he has suffered from depression over the years and contemplated suicide when the assault occurred. He stated that he has suffered from anxiety/PTSD which he diagnosed himself and he abused alcohol in the past. He stated that immediately after the incident, he was in shock, denial, fear, confusion, anxiety, withdrawal, nervousness, and distrust of others, and it has taken him years to stop blocking out when he knew had occurred. The Veteran's primary theory of entitlement to service connection for a psychiatric disability is that he has PTSD due to stressor events in service. As an initial matter, the Board notes that the evidence does not show, nor does the Veteran contend, that he engaged in combat or served in circumstances consistent with fear of hostile military or terrorist activity. Instead, he asserts that his alleged stressor is related to personal assault, specifically military sexual trauma (MST). The Board notes that the Veteran's account of MST was first reported in the compensation-seeking process and would not of itself suffice to constitute credible corroborating evidence of a stressor event in service. In determining whether statements he submitted (describing a stressor event in service) are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The Board observes initially a basic apparent inconsistency in the reports in that initially the Veteran reported the trauma as an apparent single incident, which shocked him, that occurred in the sergeant's quarters (to celebrate passing the Veteran's weapons qualification). The Veteran did not provide details explaining how such fraternization would have been possible on a military base. Later, the Veteran described visiting the sergeant's house (apparently off post) using coercive means to make him come. No details of such were provided, and there is no explanation that that likewise would have been possible. The Board finds that the Veteran's reports of MST/personal trauma in service, are not credible. His STRs are silent for psychiatric complaints, and he denied any psychiatric history on service separation examinations. His service personnel records do not show or suggest that he faced any disciplinary matters in service; his duty station assignments reflect he successfully completed each tour of duty. He enlisted in the National Guard and had further active duty (Federalized) service in 1990/1991. Nothing in the records suggests that he was subjected to an MST stressor event in service. Furthermore, the pertinent postservice treatment records include negative PTSD and depression screens in July 2010 and June 2012, and show he either denied, or did not endorse, being a victim of MST in service. It was not until he initiated the compensation-seeking process [for PTSD] that he reported being a victim of MST in service. That an alleged traumatic event such as a personal/sexual assault in service had a profound effect on the Veteran, as he has claimed, is belied by the fact that he was given an honorable discharge with no psychiatric Medical Board findings or similar notations in the record to reflect a negative impact on performance. There was no evidence of a mental condition in service. Considering the foregoing, the Board concludes that the preponderance of the evidence is against a finding that there is credible corroborating evidence of an alleged MST stressor event in service. Furthermore, the Board notes that the Veteran has never sought treatment for, or been diagnosed with, any psychiatric disability, including PTSD. He is not competent to establish by his own allegations that he has or has had a psychiatric disability. The Board has considered whether an examination is necessary, without credible corroborating evidence of a stressor event in service, there would no basis for rating a current diagnosis of PTSD to the Veteran's service. The negative depression screenings noted above do not suggest he may (even with that being a low threshold requirement) have a psychiatric disability secondary to a service-connected disability. The preponderance of the evidence is against a finding that the Veteran has PTSD based on a personal (MST) assault stressor in service. In reaching this conclusion, the Board acknowledges that verification of an in-service stressor by service personnel records is not required and a mental health professional's opinion may be considered in determining whether the occurrence of a stressor is corroborated under 38 C.F.R. § 3.304(f)(5). See Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). However, here there is no such opinion by a mental health professional. The Board has weighed all of the evidence, including the Veteran's statements and the post service treatment records, and concluded that the preponderance of the evidence is against a finding that he has PTSD based on a stressor event in service. Because a chronic acquired psychiatric disability was not noted in service or clinically noted postservice, service connection for an acquired psychiatric disability on the basis that such disability became manifest in service and persisted is not warranted. As a psychosis is not shown to have been manifested in the first postservice year, the chronic disease presumptive provisions of 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309 do not apply. The Board finds that the service and postservice treatment records, overall, provide persuasive evidence against this claim, establishing that the Veteran does not have a current chronic acquired psychiatric disability that is etiologically related to his service. Regarding the Veteran's own opinion that he has PTSD or some other acquired psychiatric disability that is due to his service, he is a layperson and has not demonstrated or alleged expertise in establishing, or determining the etiology of, a psychiatric diagnosis. Those are medical questions beyond the realm of common knowledge or resolution by lay observation. He has not provided any supporting medical opinion or medical treatise evidence; does not cite to any supporting factual data; and does not offer any explanation of rationale for his opinion. Therefore, his opinion in this matter has no probative value. The diagnosis of a specific mental disability is not a matter capable of resolution by lay observation (see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)). While a layperson may provide testimony bearing on etiological factors for a psychiatric disability (see Davidson, supra), whether there is, and what has caused, a specific psychiatric diagnosis are questions beyond the scope of common knowledge or lay observation; they require medical training/expertise (see Jandreau, supra). The Veteran does not cite to supporting medical literature, and his statements relating a current psychiatric diagnosis to an event or events in service cannot be found to be competent evidence in the matter. The preponderance of the evidence is against his claim of service connection for a psychiatric disability, to include PTSD, and the appeal in this matter must be denied. REASONS FOR REMAND 2, 3. Entitlement to ratings in excess of 10 percent, each, for right and left lower extremity sciatic nerve radiculopathy. In a July 2017 statement, the Veteran stated that he has constant leg pain, and is unemployable because of his low back and bilateral lower extremity disabilities. Given the duration of the interval since he was last examined by VA in April 2017 and his allegation of worsening, a contemporaneous examination to assess the disabilities is necessary. Further, any relevant VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. The matters are REMANDED for the following: 1. Obtain for the record the Veteran's VA treatment records for his low back and lower extremities for the period from October 2014 to the present. Also ask him to identify all providers of private evaluations or treatment he has received for lower extremity radiculopathy, and to submit authorizations for VA to secure for the record complete updated clinical records of all such evaluations and treatment. Obtain for the record complete outstanding clinical records from all providers identified. 2. Then, arrange for a neurological examination of the Veteran to assess his service-connected right and left lower extremity radiculopathy. The examiner must review the Veteran's claims file. The examiner should have available (and review) the provisions of 38 C.F.R. § 4.124a (pertaining to evaluation of diseases of the peripheral nerves). The examiner should identify the impaired peripheral nerves, describing all related symptoms and related functional limitations noted on examination and reported by the Veteran in detail; and opine whether the nature of the symptoms and level of impairment found are consistent with mild, moderate, or severe incomplete paralysis or complete paralysis of the nerve(s) involved. The examiner should discuss the impact of the radiculopathy on the Veteran's occupational functioning and his activities of daily living. All opinions must include explanation of rationale. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.