Citation Nr: 21008085 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-00 534 DATE: February 11, 2021 ORDER Entitlement to service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD) due to personal assault is denied. FINDING OF FACT The preponderance of the evidence is against finding that a psychiatric disorder began during active service, or is otherwise related to an in-service event, injury or disease, to include an in-service personal assault. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1986 to June 1988. In October 2018 and September 2020, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2018 the Veteran and his spouse testified at a Board hearing. The transcript is of record. The issues are recharacterized to comport with the evidence of record. The issue of entitlement to service connection for PTSD is recharacterized as service connection of a psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for PTSD due to personal assault The Veteran contends he is entitled to service connection for PTSD stemming from an in-service assault. He alleges that a group of about seven individuals beat and stabbed him when he left a store while stationed in Hawaii. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. “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. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The requirements for establishing service connection for PTSD are more specific than those for establishing service connection for other psychiatric disabilities. To establish service connection for PTSD, the evidence must satisfy three basic elements: 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). Generally, where a determination is made that a veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran’s testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The law provides that if a PTSD claim is based on an in-service personal assault, evidence from sources other than a Veteran's service records may corroborate the Veteran’s account of the stressor incident. Gallegos v. Peake, 22 Vet. App. 329 (2008); 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 used to corroborate the stressor. 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. 38 C.F.R. § 3.304 (f)(5). In addition, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. The Veteran attended a VA examination in November 2019. The examiner concluded that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-5 criteria but did find a diagnosis of other specified trauma and stressor related disorder. However, the examiner concluded that the Veteran’s diagnosis is not due to military events or service-related stress but rather due to childhood trauma and post service-related traumatic events. The examiner reviewed the file and noted the following stressors: family drama, marital and health difficulties, witnessing a murder, a friend falling out of his car and dying from a head injury, a suicide attempt before service and domestic violence incidents, to include being stabbed by his brother. Based on the in-person examination and review of the record, the examiner opined that it is less likely than not that the Veteran has PTSD secondary to an in-service personal assault. The examiner explained that there is no medical evidence that the Veteran sought treatment for the stab wounds he suffered in the assault and there are no witnesses to the assault. The Veteran did not seek treatment for PTSD until almost 24 years after service, but he was treated for several years for chronic depression related to non-service-connected conditions, which do not mention PTSD. While there are treatment records that mention PTSD, it was felt to be secondary to a very complex psychosocial history that existed prior to and after service and includes an abusive and alcoholic father and witnessing a murder. The examiner also noted that the Veteran does have a history of being stabbed but it occurred after discharge from service and was by his brother. Of significance is the Veteran’s treatment for PTSD symptoms for non-military traumas. While the diagnosis of PTSD is carried from one provider to another, the only details pertaining to etiology are due to nonmilitary related traumas with one exception where an examiner noted some combat experience; however, the Veteran’s military records do not indicate any combat experiences. Therefore, the Veteran’s PTSD symptoms are due to his multiple civilian traumatic experiences. Furthermore, there is no evidence that military service aggravated any pre-existing condition as the Veteran had measurable success in service as he achieved the rank of E-4 in less than two years and was honorably discharged. An addendum opinion obtained in September 2020 evaluated whether the Veteran displayed any behavior in service consistent with his claim of personal assault. The examiner reported that after thorough review of the service records there is no evidence of behavioral changes that could be reasonably expected of a person who had undergone a personal assault. Specifically, there were no behavioral changes at or near the time of the incident. The buddy statement dated July 24, 2018 from M.J.D. stated that his memory of the incident was “vague” and provided no evidence of credible behavioral symptoms other than being “shook up.” See Buddy Statement July 25, 2018. There is no evidence of ongoing behavioral symptomology, the medical board physical from April 1988 reported no behavioral symptoms or psychiatric conditions and the Veteran was found to have the mental capacity to understand the medical board proceedings and his mental status examination was within normal limits. Furthermore, the Veteran’s spouse was unable to recall the incident. The examiner concluded that there is evidence for other specified trauma stressor related disorder and that a personal assault occurred based solely on the buddy statement from M.J.D.; however, it is less likely than not that the Veteran’s disorder is related to the reported in-service assault. The examiner explained that the medical records both during and after discharge are silent as to any psychological symptoms or treatment related to psychological trauma. The Veteran attended substance abuse treatment six years after discharge, at which time a very thorough psychosocial intake reviewed the Veteran’s premilitary, military and postmilitary history and found no PTSD symptoms related to service but did find evidence of psychological childhood trauma, chronic back pain and associated alcohol dependence. The examiner noted that there was no treatment for PTSD until 24 years post-service and the provisional diagnoses were clearly related to post-service traumatic incidents such as witnessing a murder, domestic violence, marital difficulties, and being stabbed with glass by his alcoholic brother. Thus, the examiner concluded that the medical evidence is overwhelmingly against finding that the Veteran’s psychological disorder is due to or causally related to an in-service personal assault. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). The Veteran and his spouse testified at a Board hearing held in June 2018. He described being with another soldier when he was swarmed by seven attackers who beat him, stabbed him and trashed his vehicle. He stated that he reported the incident to his command and the Honolulu Police Department in November 1987. He also explained that he did not seek treatment for his stab wounds as it was not bad enough for sick call. In November 2012 the VA requested a copy of the investigation report from the Honolulu police department informing them that the incident occurred in November 1987 in the Makaha Valley area. The response stated that an accident with the Veteran’s name was unable to be located. The VA made a formal finding determining that there is insufficient evidence to verify the Veteran’s stressor. See VA Memo December 2012. The Board notes that while there is conflicting evidence regarding the diagnosis of PTSD, the preponderance of the evidence is against the finding of a verified in-service stressor. The December 2012 VA issued Memorandum of Formal Finding of Lack of Information Required to Corroborate Stressors associated with a claim for service connection for PTSD reported that the Honolulu Police Department found no record of incidents related to the Veteran. While in cases of personal assault, evidence from sources other than the Veteran’s service records may be used to corroborate the Veteran’s account, neither M.J.B. nor his brother were present and only provided vague accounts reiterating that the Veteran alleged an assault. Moreover, the Veteran’s service treatment and personnel records do not show any complaints of assault, or treatment following an assault or behavioral changes, nor were any law enforcement records provided. Accordingly, the Veteran has not established a claim for service connection for PTSD under 38 C.F.R. § 3.304 (f)(5). Alternatively, the Veteran does have a diagnosis of other specified trauma stressor related disorder; however, the VA examiner concluded that the medical evidence is overwhelmingly against finding that the Veteran’s psychological disorder is due to or causally related to an in-service personal assault. The Board finds the medical opinions of the VA examiner highly persuasive as the medical examination report contains clear conclusions with citations to the medical records that support these conclusions along with a reasoned medical explanation. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner explained the significance of the Veteran’s delay in receiving treatment as numerous post-service traumas occurred within that time. Furthermore, the examiner noted that six years after service the Veteran underwent an extensive psychosocial intake which found evidence of psychological childhood trauma, chronic back pain and associated alcohol dependence but no evidence of PTSD symptoms related to service. Accordingly, the Board gives significant weight to the VA examiner’s opinion. Consequently, the claim for entitlement to service connection for an acquired psychiatric condition is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine 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). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.