Citation Nr: 21022195 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-16 674 DATE: April 15, 2021 ORDER 1. Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as due to military sexual trauma (MST), is denied. 2. Entitlement to service connection for a psychiatric disorder (other than PTSD), to include depressive disorder, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of PTSD under Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 2. The preponderance of the evidence is against a finding that a psychiatric disorder had its onset in service or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD, to include as due to MST, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 2. 1. The criteria for service connection for a psychiatric disorder, to include depressive disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1988 through September 1992. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision that denied service connection for PTSD and depressive disorder, among other disabilities. The issues were remanded in an October 2018 Board decision in order to obtain outstanding records and to schedule the Veteran for a VA examination for assessment of any psychiatric disorders. The Veteran underwent a VA psychiatric examination in August 2019, pursuant to the October 2018 remand order. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the issue of entitlement to service connection for tinnitus was also remanded in October 2018; however, the Veteran was granted service connection for tinnitus in a June 2020 rating decision. As the benefit sought was granted, the matter is no longer before the Board. In connection with the Board’s remand directives to obtain outstanding records, the Veteran provided authorizations in April 2020 to obtain treatment records from Kingdom Counseling Services, Veterans Evaluation Services, and Logistics Health Inc. These authorizations were rejected for issues concerning incomplete and illegible forms by the agency of original jurisdiction. However, the Board finds the issue to be moot, as the Board has either obtained or previously attempted to obtain all the records for which the Veteran provided authorizations. For example, the records from Veterans Evaluation Services and Logistics Health Inc. relate to VA examinations performed in 2019 and 2015, respectively, which have been associated with the claims file. In November 2015, VA had contacted Kingdom Counseling Services and received confirmation from the provider that no prior treatment records were available because any such records from the requested time period of 2007 to 2009, would have been destroyed as a matter of office policy. The Veteran contends that he was blackmailed or coerced into engaging in unwanted sexual acts by a female military police officer (MP) while he was in bootcamp. Specifically, the Veteran stated that, in 1989, the Veteran was staying at a Georgia hotel with two fellow servicemen. The Veteran stated that a fight broke out between the other two servicemen, resulting in one of them being thrown through a window. The police and military police were summoned, and the Veteran risked punishment for the property damage because the hotel room was listed under his name. The Veteran stated that a female MP degraded him and pressured him into performing sexual acts in order to avoid punishment, including potential removal from service. Service Connection In general, under the relevant laws and regulations, 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. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 U.S.C. § 5103(a). Service connection for PTSD specifically requires the presence of three particular elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). For the purposes of establishing service connection for PTSD, medical evidence diagnosing PTSD must be in accordance with the Diagnostic and Statistical Manual of Mental Disorders 5th Edition (DSM-5) as the source of criteria for the diagnosis of claimed psychiatric disorders. Regarding the in-service stressor element of a claim of service connection for PTSD, the Court has held that credible supporting evidence means that the Veteran's testimony cannot, by itself, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See 38 C.F.R. § 3.304(f)(3); see also Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996); Patton v. West, 12 Vet. App. 272, 277 (1999). Instead, the record must contain service records or other independent credible evidence corroborating the Veteran's testimony as to the alleged stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Those service records that are available must support and not contradict the Veteran's lay testimony concerning stressors. Doran v. Brown, 6 Vet. App. 283, 289 (1994). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding of service connection for PTSD or a separate psychiatric disorder. 1. Entitlement to service connection for PTSD, to include as due to MST The preponderance of the evidence is against a finding that the Veteran has a diagnosis of PTSD under DSM-5. The Veteran’s service treatment records indicate that the Veteran did not seek or receive treatment for any psychiatric symptoms during his time in service. On separation examination in July 1992, the Veteran received a normal clinical psychological assessment. In a July 1994 Report of Medical History, which the Veteran completed approximately two years following service discharge, he denied a history of experiencing frequent trouble sleeping, nervous trouble of any sort, and depression or excessive worry. He did not report any incidents of MST. The record does not indicate the Veteran received psychiatric treatment for approximately 15 years following service; however, the Veteran received a negative PTSD screening at VA in January 2007, and the Veteran denied MST at that time. Additional negative PTSD screenings were recorded in January 2008 and December 2013. A June 2010 VA treatment record shows that the Veteran had a positive depression screen and asked to speak to a mental health care provider. He reported stress at work and some stress at home trying to pay for his son, and that the son had gotten into some legal problems. The examiner documented that the Veteran had a depressed mood, but denied all PTSD symptoms, which included a traumatic event, nightmares, intrusive thoughts, flashbacks, hallucinations avoidance symptoms, emotional numbing, hypervigilance, startle response, amnestic spells, sense of foreshortened future, and anger dyscontrol. When addressing his military history, the Veteran was asked how his military service affected him, and he responded he, “Liked it.” The examiner entered a diagnosis of psychosocial circumstances. After filing his claim for service connection in September 2014, the Veteran underwent a VA examination in March 2015. The examiner found that the Veteran did not have a diagnosis of PTSD and, therefore, concluded that it was less likely than not that the claimed condition of PTSD was related to MST. The examiner stated that the Veteran did not report symptoms that meet the criteria for a diagnosis of PTSD. The examiner further indicated the Veteran to have a diagnosis of depression but stated that, due to the lack of identifiable markers relating to the Veteran’s reported MST, any opinion rendered would be pure conjecture. The examiner noted that the Veteran’s story was plausible and that the Veteran appeared forthright. The Veteran began reporting some separate symptoms thereafter and, in February 2016, a VA mental health evaluation indicated the Veteran met the diagnostic criteria for a diagnosis of PTSD. His reported symptoms included intrusive memories, physiological reactions, a negative emotional state, diminished interest, irritability, angry outburst, and difficulty concentrating. The duration of symptoms was stated to be more than one month. However, in the following months, the Veteran recorded multiple test scores on the PCL-5, a questionnaire corresponding to the DSM-5 criteria for PTSD, which indicated the Veteran to both meet and not meet the criteria for PTSD, at separate times. The Board determined that additional development was necessary and remanded the claim in October 2018 to have the Veteran examined again. The Veteran underwent another VA examination in August 2019. The examiner stated that, based on consistent reporting of the claimed stressor, it is more likely than not that the MST stressor occurred. The Board accepts this finding as it relates to the occurrence of the Veteran’s reported MST. However, the examiner stated that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD and diagnosed the Veteran with depressive disorder due to another medical condition. Although the Veteran has reported symptoms consistent with PTSD and been found to meet the criteria for PTSD at times, the record shows that such findings are not reflected over sustained periods. Rather, the Veteran was found to have no diagnosis of PTSD on VA examinations in both 2015 and 2019, which examinations were performed by two, different mental health professionals. To the extent that the Veteran believes that he has PTSD, such a diagnosis requires medical expertise. A finding of PTSD requires specific findings pursuant to the DSM-5 and includes complex symptomology that may overlap with separate disabilities. As such, while the Veteran is competent to report his observed symptoms, more probative weight is afforded to the findings of the most recent August 2019 VA examination, which is supported by the weight of the evidence over the longitudinal record and the prior VA examination in March 2015. Thus, the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of PTSD under DSM-5, which is a requirement for the award of service connection for PTSD. The Board acknowledges the contention of the Veteran’s representative that further remand is necessary to obtain police reports and/or hotel records that may confirm the circumstances surrounding the Veteran’s reported stressor relating to MST in 1989. The August 2019 VA examiner acknowledged that it is more likely than not that the MST incident occurred, and the Board concedes this finding. While serving to support the occurrence of the Veteran’s alleged MST by substantiating the reported events, once recognized, police reports and hotel records would not relate to the elements of service connection for PTSD at issue, specifically, findings of a present diagnosis and/or a nexus between a present disability and the alleged MST. Accordingly, the Board finds that there has been no duty to assist error in VA not obtaining records to support the MST. For the reasons discussed herein, the preponderance of the evidence is against the claim for service connection for PTSD, as the evidence against the Veteran having such a diagnosis outweighs the diagnoses entered into VA treatment records. Specifically, two medical professionals performed evaluations to determine if the Veteran had a diagnosis of PTSD and both found he did not meet the criteria for such a diagnosis. Both medical professionals explained why they found he did not meet the criteria, which is more probative than the diagnoses entered into VA treatment records without a more thoughtful explanation as to why the providers felt a diagnosis was warranted. Accordingly, the benefit of the doubt doctrine is not for application, and the Veteran’s claim for service connection for PTSD is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a psychiatric disorder, to include depressive disorder The above discussion relating to the Veteran’s mental health history is incorporated herein. While the Veteran is found not to have a current PTSD diagnosis, the record supports that the Veteran to have a present psychiatric disorder. The Veteran’s MST is conceded. However, the weight of the evidence does not show a nexus between his present psychiatric disorder and an in-service event or incurrence. As noted, the Veteran’s service treatment records are absent of any complaints of any psychiatric symptoms. The Veteran denied recurrent depression or anxiety and received normal clinical psychiatric evaluations during his time in service. Following discharge, the record does not show that the Veteran sought or received mental health treatment for approximately 15 years. The Veteran recorded a negative depression screening in January 2007. In January 2008, the Veteran reported that stress at work was causing him anger and poor concentration. He reported feeling a lot better the following month with normal concentration. These findings seem to indicate occasional symptomology exacerbated by situational stressors. The Veteran did not require urgent or inpatient treatment and only later did he begin to receive regular mental health therapy. Individual therapy records in 2010 indicate that the Veteran reported varying symptomology associated with occupational stressors. VA treatment notes from February 2011 show that the Veteran reported frustration with his personal life and depressive symptoms relating to difficulties with erectile dysfunction, which impacted a close relationship the Veteran had. The Veteran continued with intermittent treatment and was variably assessed with anxiety and depression with symptoms generally fluctuating with stressors in his personal life and the workplace. In January 2015, the Veteran reported symptoms of depression that started about a year prior when his relationship with his girlfriend of over 10 years ended. At the time, he stated that his mood was primarily impacted by fluctuations in his relationship with his adult son. The Veteran also reported a history of anxiety. As stated, the March 2015 VA examiner assessed the Veteran with persistent depressive disorder but stated that it would be conjecture to opine to the etiology of the Veteran’s depression. The Veteran reported longstanding issues with physical intimacy and sexual dysfunction, as well as suppressed libido. He reported these issues attributed to the end of his 10-year relationship that had ended the year prior. Otherwise, the Veteran reported good family relations, social engagement outside of family/work functions, and having a good number of friends. The record reflects generally stable functioning thereafter with recurrent depressive symptoms through the time of the 2018 Board remand. The Veteran underwent another VA psychological examination in August 2019. The Veteran was diagnosed with a depressive disorder due to another medical condition, erectile dysfunction with depressive features. The Veteran reported that he had been engaged in psychotherapy for the past year. The Veteran reported a history of erectile dysfunction that causes depression and some anxiety regarding sexual performance. The examiner found that the Veteran’s current diagnosis is less likely than not related to service. Again, although the Veteran contends that his psychiatric disorder is caused by his MST in 1989, the opinion of the August 2019 VA examiner is more probative in this regard, as she is a medical expert who reviewed the claims file, and whose opinion is most consistent with the evidence of record. Notably, the Veteran denied any depressive or anxious symptoms during service, received normal findings on clinical psychological evaluation during active duty, and did not seek mental health treatment for approximately 15 years. Thereafter, the Veteran’s symptoms fluctuated with situational life stressors, except that the Veteran consistently reported frustration and depressive symptoms associated with sexual dysfunction impacting his interpersonal relationships. In 2015, the Veteran indicated that his depressive symptoms started the previous year when a long-term relationship ended due, in part, to sexual dysfunction. Otherwise, the Veteran reported good family relations, social engagement outside of family/work functions, and having a good number of friends. These findings and the significant amount of time between service the Veteran’s diagnosis and onset of psychiatric symptoms are indicative of intercurrent causes not related to the Veteran’s MST. Accordingly, the preponderance of the evidence is against a finding that the Veteran’s present psychiatric disorder, diagnosed as depressive disorder, was caused by or related to service. The 2019 VA examiner indicated that erectile dysfunction could be related to stress experiences, but that there is no evidence that can rule out that erectile dysfunction is a result of a medical issue. To that end, the Board notes that the Veteran is not service connected for erectile dysfunction, so a theory of secondary service connection is unavailable. A determination relating to service connection for the Veteran’s erectile dysfunction would require the Veteran to file a new claim. For the reasons discussed herein, the preponderance of the evidence is against the claim for service connection for a psychiatric disorder (other than PTSD), to include depressive disorder. Accordingly, the benefit of the doubt doctrine is not for application, and the Veteran’s claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.