Citation Nr: 21011216 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-35 981 DATE: March 1, 2021 ORDER Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) 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 injury or disease, or that there is credible evidence of an in-service stressor for PTSD. 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, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1975 to September 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). Previously, the Veteran appeared for a hearing before the Board in March 2015. Though the Board member who conducted that hearing is no longer with the Board, the Veteran previously requested that his claim be decided on the evidence of record. This claim has a long history before both the Board and the Court of Appeals for Veterans Claims (Court). In pertinent part, the Board remanded the Veteran’s claim in July 2016 for record development and to obtain a VA examination. After the case was returned to the Board, the Board denied the Veteran’s claim in a June 2018 decision. The Veteran appealed this decision to the Court. In July 2019, the Court approved a Joint Motion for Remand that vacated the Board’s June 2018 denial. The Board thereafter remanded the Veteran’s claim in November 2019 in order to seek records from the Social Security Administration. In reviewing the development after each of the Board’s previous remands, the Board finds that each directive was completed, such that there is substantial compliance with the Board’s remand instructions. This case may thus move forward. 1. Entitlement to service connection for a psychiatric disorder The Veteran asserts that he is entitled to service connection for a psychiatric disorder. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). When a claim of PTSD is based on a contention of an in-service personal assault, the stressor verification requirement is somewhat relaxed. PTSD based on personal assault refers broadly to stressor events involving harm perpetrated by a person who is not considered part of an enemy force. 38 C.F.R. § 3.304(f)(5). The VA acknowledges the unique problems veterans face in documenting their claims because of the sensitive and extremely personal nature of assault. To compensate for the difficulties in reporting and producing evidence to support the occurrence of a stressor, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that while he was in service as Parris Island, South Carolina, he was physically and mentally abused by drill instructors and other marines in his platoon. During his March 2015 hearing, the Veteran reported that he woke up at the Naval Hospital in Beaufort, South Carolina, after a personal assault carried out by everyone in his platoon. He reported that he had a hernia. Additionally, the Veteran reported that a drill instructor attacked him during a history class. Specifically, he stated that the drill instructor flipped him over his desk and started kicking him in the head. The Veteran further stated that when it was time to write his rebuttal for discharge, he wrote down the incidences that happened to him while in service. However, he claims that two men in suits put him under duress to write a different statement for his rebuttal so he was forced to state that everything was fine while he was in service. The Veteran also reported that he sought treatment post-service in Louisville, Kentucky, in approximately 1982 for his anxiety. Review of the Veteran’s service treatment records (STRs) reveals that the Veteran was seen at the Naval Hospital in Beaufort, South Carolina from July to August 1975. Documentation reports that the Veteran was diagnosed with resolved left epididymitis with a possible left varicocele as the primary diagnosis; with a probable recurrent left inguinal hernia noted as the second diagnosis. The report stated that the Veteran was first seen at sick call with a complaint of groin pain for the past two days and was subsequently transferred to the Naval Hospital where he underwent treatment. It was reported that while in the hospital, he developed sudden severe pain in the left groin after lifting a heavy object. According to the medical write-up, he was then transferred to the Medical Rehabilitation Platoon in a no duty status to await a urology consultation. He was then transferred to the Surgical Clinic at the Naval Hospital where he was encouraged to receive surgery. The Veteran declined to have a surgical procedure performed. The medical note also documented that the Veteran reported a long history of left scrotal swelling as well as a history of a left inguinal herniorrhaphy at age 5. It reported that all other findings were within normal limits, and that the Veteran appeared to be in no acute distress. As a result of his refusal to have surgery, the Veteran was discharged from the service. Paperwork submitted by the Veteran after receiving a medical recommendation for separation reveals that the Veteran did not desire to submit a rebuttal to the Medical Board’s decision. Medical treatment records from the University of Louisville Hospital from 1988 document that the Veteran sought treatment for substance abuse. The Veteran reported that he had a long history of alcohol and drug abuse starting from when he was 15 years old. He reported insomnia for years and also feelings of hopelessness. He also reported that he had suicidal ideations without a plan. There was no documentation of a possible etiology of the Veteran’s symptoms; and there was no documentation of the Veteran reporting that he was attacked while in service. In January 2013, the Veteran filed disability claim with the Social Security Administration (SSA). In his application, he indicated that he had anxiety and depression. He reported the onset of his disabilities was September 2012. He reported that his initial symptoms were related to being beaten by marines in 1975, however, he stated that he did not experience symptoms of anxiety until 5 years prior to the SSA filing and that symptoms worsened in the previous year after finding a friend dead. In March 2013, the Veteran reported to a VA examiner that, while he was in boot camp, he was stomped and kicked in the scrotal area and was admitted to the hospital for treatment. In May 2013, the Veteran was diagnosed with panic disorder with agoraphobia and major depressive disorder by a VAMC attending physician, Dr. P. However, Dr. P. did not provide an opinion on the etiology of the Veteran’s psychiatric disorder. VA treatment records document that the Veteran has been treated and evaluated multiple times by Dr. P from 2013 to 2016. In an October 2013 note, Dr. P. documented that the Veteran reported being repeatedly harassed and beaten to the point of being put in the hospital. The Veteran was screened for PTSD by Dr. P. in March 2015. This evaluation resulted in a negative screening for PTSD. In July 2016, however, the Veteran was screened again and Dr. P diagnosed the Veteran with PTSD. The Veteran appeared for a VA examination in October 2016 to determine the nature and etiology of his acquired psychiatric disorder. In that examination, the examiner determined that the Veteran did not meet the criteria for a PTSD diagnosis, but she did diagnose the Veteran as suffering from an unspecified mental disorder and alcohol use disorder, in sustained remission. Though the examiner checked a box indicating no valid diagnosis, the lengthy recitation of the diagnosed disabilities is sufficient for the Board to find that she did indeed diagnose the Veteran with a current psychiatric disorder. The examiner opined that the Veteran’s disability was less likely than not related to his military service. The examiner explained that the Veteran’s self-report of a stressor event could not be used due to likely significant exaggeration, thus, the examiner relied on the available medical records. The examiner reported that the Veteran had a long history of drug and alcohol abuse and referenced the Veteran’s month long stay at the University of Louisville Hospital in 1988. Specifically, the examiner noted that the Veteran did not mention any military trauma while he was there and attributed feelings of depression and anxiety to side effects of substance abuse. Correspondence received by the VA in August 2018 indicates that the Veteran reached out to a colleague that attended boot camp with him. In the correspondence, the colleague stated that they could not truthfully state that the Veteran was target by the drill instructors; noting that they were not together very long in boot camp. First, with regard to the question of service connection for PTSD, the Board finds no evidence of a credible in-service stressor. As noted, the Veteran’s VA treatment records contain diagnoses of PTSD. Indeed, the Joint Motion specifically found that the Board did not adequately address these VA diagnoses and treatment records in its earlier decision. Each of these diagnoses, however, were based on the Veteran’s recitation of his history as recounted above. The Board finds that history not to be credible. First, the Veteran has been inconsistent in describing the history of his psychiatric disorders. Importantly, when seeking treatment in 1988, the Veteran made no mention of any in-service stressors, including the events described above. Instead, the first mention of such incidents came in 2012 or 2013, close in time to the Veteran’s filing his claim for benefits here. When evaluating the credibility of statements and testimony, the Board may look to the desire for financial gain on the part of the claimant. Considering that the Veteran only began discussing a history of an in-service personal assault roughly coincident with the time that he filed his claim for benefits, the Board finds the Veteran’s newly recounted history to be an effort at such financial gain. Second, the events described by the Veteran are, on their face, incredible. While mindful of the fact that personal assaults are inherently more difficult to verify, the incidents described by the Veteran go beyond mere assault and instead are fantastic. If, as described by the Veteran, he was assaulted by his entire platoon and woke up in the hospital, it would be reasonable to expect the residuals of such an attack to be noted in his records. The Veteran’s service treatment records, which appear to be complete, show no treatment consistent with such an attack. The history of the Veteran’s service similarly shows how unlikely such a scenario is. The Veteran’s active service began on June 12, 1975. He was admitted to the hospital for groin pain on July 24, 1975, and remained hospitalized until August 12, 1975. He was thereafter evaluated by a specialist, and after refusing surgery, was discharged effective September 16, 1975. This history presents very short windows of time in which the Veteran’s alleged stressors could have occurred. The other incidents described by the Veteran, to include being kicked in the head by a drill instructor and forced under duress to obfuscate the reason for his discharge, are similarly incredible, with no support found in the objective evidence of record. Indeed, one of the Veteran’s fellow Marines specifically declined to endorse his recitation of history regarding his active service. Quite simply, the Board finds no evidence to support the Veteran’s relatively incredible contentions regarding his active service. Instead, the Board finds more credible what that objective evidence supports: the Veteran was discharged from service for his refusal to undergo surgery. These contemporaneous records appear to be complete, and they recount his three months of service from his initial entry, to his seeking treatment one month later, his multiple week hospitalization, and his eventual discharge. Considering that the only diagnoses of PTSD come from VA sources based on the Veteran’s recitation of history above, the Board finds that, regardless of those diagnoses, the Veteran cannot meet the criteria for PTSD, as he lacks evidence of a credible in-service stressor. As for psychiatric disorders other than PTSD, there is no evidence relating such disabilities to his active service. In her October 2016 examination and opinion, the VA examiner provided an exhaustive review of the Veteran’s psychiatric history, with specific references to the evidence of record. The examiner thereafter found that it was less likely than not that the Veteran’s psychiatric disorder is related to his active service. In the July 2019 Joint Motion, the parties noted that the examiner had found that the Veteran had exaggerated his symptoms based on the results of two tests, but that the examiner only mentioned one of these tests. Considering, however, that the Board has found the Veteran’s recitation of his own history to be not credible, the Board finds that there is no reason to remand the case to determine whether the examiner actually only administered one test, or to have her name the second test that she performed. Instead, the Board finds her opinion to be adequate and probative. The examiner’s opinion is lengthy, includes specific recitations to the record, and was based on a thorough examination. Regardless of the number or types of testing performed to determine the possible exaggeration in the Veteran’s responses, the October 2016 examiner’s opinion is by far the most extensive and detailed of the evidence of record, and contains more than sufficient information for the Board to make an informed decision. To the extent that any of the VA treatment providers found that any of the Veteran’s diagnosed disorders are related to his active service, the Board finds them outweighed by the opinion of the VA examiner. First, the Board finds that such opinions are based on an inaccurate factual premise as provided by the Veteran and as discounted by the Board for the reasons previously described. Second, as noted, the October 2016 examination and opinion are much more comprehensive, with detailed findings and recitations of history. To the extent that the Veteran himself contends that any current psychiatric disorder is related to his active service, the Board finds him not competent to provide such an opinion. Determining the etiology of a psychiatric disorder is complex, requiring specialized medical training or education which the Veteran is not shown to possess. Accordingly, his contentions are not considered competent evidence in support of his claim. In summary, the Board finds no credible evidence of an in-service stressor, and service connection for PTSD is therefore not warranted. The Board further finds no probative evidence relating any non-PTSD psychiatric disorder to his active service. The weight of the evidence is against the Veteran’s claim, and there is no doubt to resolve. Service connection for a psychiatric disorder, to include PTSD, is therefore not warranted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. K. Hall, Associate 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.