Citation Nr: 21008068 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 06-15 306 DATE: February 11, 2021 ORDER Entitlement to service connection for a psychiatric disability to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT A psychiatric disability was not present in service, a psychosis was not manifest to a compensable degree within one year of the Veteran’s discharge from service, and a psychiatric disorder is not otherwise related to the Veteran’s service. CONCLUSIONS OF LAW The criteria for service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army Reserves from June 1980 to June 1986, and she had 23 days active duty service from July 25, 1980 to August 16, 1980. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from September 2005 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a September 2009 decision, the Board denied service connection for a psychiatric disorder. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). In July 2010, while the case was pending at the Court, VA’s Office of General Counsel and the appellant’s representative filed a Joint Motion (JMR) requesting that the Court vacate the Board’s September 2009 decision denying service connection for a psychiatric disorder. That same month, the Court issued an Order vacating the Board’s September 2009 decision to deny the appeal for service connection for an acquired psychiatric disorder. In April 2011, the Board remanded this matter for further development, to include obtaining updated treatment records and a VA examination. In June 2016, the appellant testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge. In December 2016 and May 2020, the Board remanded this matter again for further development, to include requested an etiological opinion concerning the Veteran’s psychiatric disability. While on remand, the Veteran was scheduled for a November 2020 Board hearing, but cancelled that hearing. Service Connection 1. Entitlement to service connection for a psychiatric disorder to include PTSD The Veteran contends she has a psychiatric disorder related to her military service. She contends that she was sexually harassed and assaulted in service, and that this led to weight gain, which led to her being discharged from service. 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, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). If a PTSD claim is based on military sexual trauma or 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; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304 (f)(5). Furthermore, an appropriate medical or mental health professional may provide an opinion as to whether the evidence of record indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). Medical opinion evidence may be submitted for use in determining whether a claimed stressor occurred and such opinion evidence should be weighed along with the other evidence of record in making this determination. Menegassi v. Shinseki, 628 F.3d 1379, 1382 n.1 (Fed. Cir. 2011). A review of the Veteran’s service treatment records and army reserve treatment records are absent for any reports or diagnosis of a psychiatric disability. Post-service, an August 1986 private hospital treatment letter shows that the Veteran was hospitalized for manic depressive illness and schizophrenia. A July 1988 private medical record diagnosed manic depressive illness, manic type. An August 1988 private treatment letter noted the Veteran had been hospitalized in 1987 and 1988. A 1990 record noted an impression of anxiety. The Veteran filed a claim for a psychiatric disorder in 1997. In a supporting statement, she reported sexual gestures made by her Chief Warrant Officer in 1983. 1996 and 1997 private medical records note a diagnosis of bipolar disorder. Private medical records from 2000 show diagnoses of manic depressive disorder, bipolar disorder, and schizoaffective disorder. 2004 private medical records noted a diagnosis of schizoaffective disorder, bipolar type. VA and private medical records note a long history of mental health treatment and hospitalizations since the 1990s. VA examinations and opinions were provided and obtained in June 2007, June and July 2015, and July 2018. These were all found inadequate in some aspect by prior Board remands. A June 2020 VA examination was obtained. First, the examiner opined that the proper diagnosis was schizoaffective disorder. The examiner determined that the record and evaluation does not support a diagnosis of PTSD, adjustment disorder, or depressive disorder. Although there was a history of bipolar and delusional disorder, the records and symptoms were best summarized by schizoaffective disorder. Delusional disorder indicates that depression and manic episodes are not a major component of the symptoms, which seems unlikely given the history of bipolar diagnosis. Schizoaffective disorder accounts for bipolar symptoms and anxiety. The examiner found that the criteria for PTSD were not met because a review of the record did not contain any marker evidence, and Criterion B, C, D, and E were not met. Next, the examiner opined that the psychiatric disorder was not incurred in or caused by service as the service treatment records were silent for complaints or diagnoses. With regard to the Veteran’s claim of entitlement to service connection for a psychiatric disorder due to a military sexual trauma, the Board finds that the most probative evidence of record demonstrates that the in-service sexual trauma did not occur. The Veteran has asserted that she was sexually harassed and raped during her period of reserve service, and that her psychiatric symptoms began after the assault. The Veteran’s service treatment records and military personnel records do not include a reference to a sexual assault, or any other markers of such. The June 2020 VA examiner reviewed the claims file, and found that the evidence, including any potential marker evidence, did not support such a finding. The Board also finds that the first medical treatment for a psychiatric disability was in August 1986, which is more than 5 years after her 23 days of active service concluded and was after her reserve service concluded. This gap in time weighs against service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). The Board concludes that the evidence does not support a finding that a psychiatric disorder first manifested in service, or is otherwise directly related to the Veteran’s period of active service. Although the Veteran has reported that she was treated for a psychiatric conditions in 1982, and she has submitted lay statements from her sister and cousin indicating that the Veteran was assaulted during service and had had psychological stress from service, these statements are outweighed by the evidence of record and the June 2020 VA examination review of records. The Board does not find these statements by the Veteran to be credible, based on conflicting evidence in the claims file and demeanor at the Board hearing. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence, and demeanor), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The VA examiner reviewed the claims file and determined that there were no markers to show that an in-service sexual assault occurred. Moreover, the examiner opined that it was less likely than not that the Veteran’s diagnosed psychiatric condition onset until after separation from service, when she was treated for schizophrenia. Overall, the private and VA treatment records demonstrate that the Veteran’s psychiatric problems manifested after service and was not caused by any incident during service. Accordingly, service connection is not warranted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.