Citation Nr: 21006224 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-42 205 DATE: February 3, 2021 ORDER Entitlement to service connection for a psychiatric disorder, to include anxiety and posttraumatic stress disorder (PTSD) due to military sexual trauma (MST), is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s acquired psychiatric disorder began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include anxiety and posttraumatic stress disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1989 to November 1992. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2019. A transcript of the hearing has been associated with the record. In September 2019, the Board remanded this matter to obtain updated VA treatment records, send the Veteran required notice for PTSD claims based on personal assault, and to provide the Veteran with a VA psychiatric examination. As the records have been obtained, the notice has been sent, and the VA examination has been provided, there has been substantial compliance with the prior remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) due to military sexual trauma (MST) The Veteran contends that he suffers from a psychiatric disorder, to include PTSD, due to an incident of sexual assault during service. Legal Criteria Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish a right to compensation for a present disability, the claimant must provide competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). To be entitled to service connection for PTSD, as opposed to another mental health disorder, the record must include (1) medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125 (a) (i.e., DSM-IV for appeals before August 4, 2014 and DSM-V for appeals certified after August 4, 2014); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). A Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor if : (1) The claimed stressor is related to fear of hostile military or terrorist activity; (2) The claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service; and (3) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran’s symptoms are related to the claimed stressor. 38 C.F.R. § 3.304 (f)(3). 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). Medical and Lay Evidence During service, the Veteran’s Service Treatment Records (STRs) show the Veteran’s entrance examination made normal psychiatric findings. STRs show that the Veteran was treated for pharyngitis & nausea in April 1991. Treatment records from this month note that the Veteran was interviewed by a behavior specialist, who found no need for follow-up social work service at that time. STRs contain a notation that the Veteran was seen by a behavior specialist in July 1991, but there is no notation of a diagnosis of a psychiatric disorder. The Veteran was treated for a gunshot wound to the right foot in October 1991, with a note that there was potential for anxiety related to hospitalization. Although the STRs contain references to the Veteran being seen by a mental health specialist, the STRs do not contain any diagnosis or treatment for a mental health condition during service. After service, in December 2012, the Veteran was provided with a VA PTSD examination. The VA examiner diagnosed the Veteran with Anxiety Disorder not otherwise specified (NOS), Panic Disorder without Agoraphobia, and Alcohol Dependence in remission. The examiner did not find that the Veteran met the requirements for a diagnosis of PTSD. The examiner concluded that the Veteran’s mental health conditions were not related to service. The examiner noted that the Veteran was unable to inform the examiner of what stressor incident occurred. In a November 2013 written statement and under oath at the February 2019 hearing, the Veteran has come forward with details relating to an incident of military sexual trauma (MST) at Fort Benjamin Harrison in November 1990. Additionally, at the February 2019 hearing, the Veteran indicated that he has received treatment for his condition from a VA Trauma Recovery Program (TRP) and was seeing a trauma specialist. Pursuant to the Board remand, the Veteran was provided with a new VA psychiatric examination in September 2020. The VA examiner reviewed the medical history contained in the Veteran’s claims file, including VA mental health treatment records, and conducted a video telehealth examination of the Veteran. The examiner found that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under the DSM-5 criteria, but did find a diagnosis of Anxiety Disorder. The Veteran reported symptoms of anxiety and depressed mood, and alcohol craving since the sexual incident in the Army. He also reported that he has been in outpatient psychiatric care since his Honorable Discharge, has not had alcohol since 2000, but was recently hospitalized in psychiatry. The VA examiner found that the Veteran does not meet the DSM-IV or DSM-5 criteria for a diagnosis of PTSD. However, the VA examiner found that the Veteran has been treated for several psychiatric conditions, including an adjustment disorder with depression and anxiety. The examiner found no evidence in the Veteran’s claims file to confirm that the assault during service occurred. The VA examiner found no contemporaneous markers near or around the time of the assault, suggesting or documenting an incident of sexual trauma could be found. The Veteran acknowledged to the examiner that he did not report the assault to anyone. After reviewing the Veteran’s claims file and conducting a video telehealth examination of the Veteran, the VA examiner found no evidence that the Veteran’s Anxiety Disorder is related to any event during service, or that this diagnosis or symptoms arose during, or as a result of, military service. Analysis The Board finds the September 2020 VA medical examination and opinion to be of significant probative value. The Board notes that the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, his or her knowledge, and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the VA examiner provided a well-reasoned analysis for his diagnosis and etiological opinion regarding the Veteran’s psychiatric condition. As discussed above, a Veteran is required to provide corroborating evidence to substantiate the occurrence of an MST stressor. 38 C.F.R. § 3.304(f)(5); Gallegos v. Peake, 22 Vet. App. 329 (2008). While the Board acknowledges the Veteran’s assertion that a sexual assault occurred in service, the Board finds there is nothing in the Veteran’s service records to corroborate his allegations. The Board emphasizes that the mere fact that the Veteran did not report the incident is not evidence that the assault did not occur. Rather, in this case it is the lack of markers in service records that weighs against the claim that such an assault happened. The Board also acknowledges the Veteran’s assertions that his current mental health symptoms stem from his active service incident of sexual assault. The Board recognizes that laypersons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether the Veteran has a diagnosis of a psychiatric disorder or whether any disability is related to his military service, requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Accordingly, service connection is not warranted for a psychiatric disorder, to include anxiety and PTSD. Therefore, the appeal must be denied. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey 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.