Citation Nr: 21023506 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-04 989 DATE: April 20, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The most probative evidence of record does not show the Veteran has PTSD that is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW Service connection is not warranted for PTSD. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1982 to May 1986. The Board has thoroughly reviewed all evidence in the claims file. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the Veteran. The Veteran must not assume the Board has overlooked evidence not explicitly discussed herein. The Veteran has not raised any issues not addressed herein, to include regarding the duty to notify or the duty to assist, nor have any other issues been reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Additionally, the Veteran has not alleged any deficiency with his October 2019 hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Although the file contains VA treatment records with a receipt date of April 6, 2021, this is not new evidence that the RO had not reviewed. Rather, the July 24, 2020 Supplemental Statement of the Case listed the evidence considered as including VA records from the East Orange VAMC from January 6, 2008 through July 23, 2020, but due to administrative error, all of these records were not uploaded to the electronic claims file at that time. Therefore, the Board ensured these records were associated with the file prior to considering the appeal. As these records are not “new,” even though added to the file after the last SSOC, no waiver or initial consideration by the RO is required. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Specifically, with respect to PTSD, service connection requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). When, as here, a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. 38 C.F.R. § 3.304 (f)(5); see also Patton v. West, 12 Vet. App. 272, 277 (1999). 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; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 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 found in these sources. 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. Id. Additionally, the Board notes that regulations governing PTSD eliminate the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a Veteran is related to the Veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service. 38 C.F.R. § 3.304 (f)(3) (2019). In this case, the Veteran is claiming entitlement to service connection for PTSD related to an alleged in-service military sexual trauma (MST). During his hearing, the Veteran testified that he was sexually assaulted by his staff sergeant but was dissuaded from making an official report. He reported alcohol and drug abuse thereafter, although he ultimately finished his tour of duty and received an honorable discharge. The Board acknowledges that the Veteran’s service treatment records contain a statement signed by the Veteran noting that his medical records were lost while he was on leave. However, a review of his available service treatment records reveals no complaints, treatment, or diagnoses of a psychiatric disability of any kind. The available records reveal that the Veteran opted to not undergo a medical examination upon discharge from service. In an undated Report of Medical History upon separation from service, the Veteran indicated that he did not have depression, excessive worry, or nervous trouble of any sort. A review of his personnel records reveals no complaints of any kind related to sexual trauma or assault. Post-service medical evidence reflects that the Veteran has been noted as having substance abuse issues for many years. In a September 1997 VA treatment record, the Veteran reported issues of sobriety and depression. In a June 2002 VA treatment record, the Veteran reported heroin and cocaine abuse for the past 10 years. Additionally, post-service medical evidence documents diagnoses of depression, a panic disorder, and generalized anxiety. See VA treatment records, January and April 2005; and New Hope Rehabilitation discharge summary, November 2013. Throughout the course of the Veteran’s VA treatment, his reports of sexual abuse or trauma were inconsistent. Specifically, in August 1999 and December 1999 VA treatment records, the Veteran reported no sexual abuse in the past month and none prior to that. In a February 2000 VA treatment record, the Veteran reported that he was sexually molested at age 13 by an adult on one occasion. In a July 2002 VA treatment record, he reported no sexual abuse in the past month and none prior to that. He denied childhood sexual abuse or any other type of abuse in a December 2005 VA treatment record. In a December 2007 VA treatment record, the Veteran denied a history of sexual abuse. In January 2008 and March 2009 VA treatment records, the Veteran denied a history of sexual trauma. In an August 2009 VA treatment record, the Veteran reported unwanted sexual attention by a trusted male family friend on one occasion at age 11. In a January 2013 VA treatment record, the Veteran reported no history of sexual trauma. In an October 2013 private medical record from P.A., BA., LPN., CADC, the Veteran denied any sexual abuse. In a December 2013 VA treatment record, the Veteran reported some prior sexual abuse. In a separate December 2013 VA treatment record, the Veteran reported no military sexual trauma. In an October 2014 VA treatment record, the Veteran reported in-service sexual assault and was noted as having PTSD secondary to MST. Subsequently, the Veteran continued to be noted as having PTSD secondary to MST in various VA mental health notes from 2014 onward. In March 2020, the Veteran underwent a VA examination, at which the examiner noted that the Veteran’s symptoms do not meet the diagnosis criteria for PTSD under the DSM-5 criteria. The Veteran was instead diagnosed with opioid and alcohol dependence with secondary (substance-induced) anxiety, mood, and sleep symptoms. The examiner determined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran filed a claim in 2006 for depression related to witnessing a solider getting his foot “blown off” during basic training. In 2014, the Veteran asserted that his alcohol and drug addiction started soon after basic training and was related to incidents of sexual assault that occurred from 1982 to 1983 and from 1985 to 1986. The examiner noted that the Veteran first initiated treatment for substance abuse at a VA facility in 1997. He participated in numerous modalities of treatment from 1997 to 2014. His mood and anxiety symptoms were indicated as related to or caused by his primary substance abuse diagnoses. The examiner noted that the Veteran reported in 1999 that he had been sexually molested at age 13 on one occasion by an adult male. He reported no history of physical abuse. Other earlier medical records document the absence of trauma history, to include military sexual trauma up through 2014. (Although, the examiner mentioned that the Veteran did sustain an injury to his thigh in 1995 from a gunshot wound.) The examiner noted that, at or around the time he submitted his claim for an acquired psychiatric disorder, the Veteran then began to receive individual counseling for PTSD due to military sexual trauma targeting his chronic symptoms of insomnia. After a complete review of the claims file and in-person examination, the examiner determined that it is more likely than not that the Veteran does NOT meet the full criteria for PTSD due to military sexual trauma, that his primary psychiatric diagnosis is opioid and alcohol dependence, and that his other psychiatric symptoms (depressed mood, insomnia, and anxiety) are secondary to his substance-use disorders, which have caused significant impairments in terms of his social and occupational functioning, particularly during periods of active and continued addition. The examiner noted that this opinion was based on the absence of markers to support the military sexual trauma event, and the fact that more than a preponderance of medical records supporting the opinion stated herein, to include almost 30 years of extensive VA medical records documenting his treatment, have been for his primary psychiatric disorder of polysubstance dependence, and that his mood, anxiety, and/or sleep related symptoms have been substance induced or related or secondary to his abuse of substances. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Currently, there is no evidence in the available service treatment records or in the personnel records documenting any complaints, treatment, or diagnoses related to a psychiatric disorder of any kind, nor is there any indication of a sexual assault of trauma. While the Board acknowledges the Veteran’s reports of sexual assault or trauma during service, the Board finds these reports have been inconsistent over the years. Moreover, the Board finds that the Veteran is not competent to diagnose himself with a psychiatric or mental health disorder or to link a diagnosed disability to service or an incident in service, as he has no medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). With regard to the medical evidence of record, the Board finds the March 2020 VA medical opinion is the most probative medical evidence of record on the matter. The Board acknowledges the notations in the Veteran’s VA treatment records of PTSD secondary to MST. However, these notations are not supported by a detailed rationale, nor do they reflect a review of the Veteran’s file. Further, no discussion was provided regarding the inconsistency of the Veteran’s reports of sexual trauma. As such, the Board finds these diagnoses of PTSD secondary to MST are not probative. To the contrary, the March 2020 VA examiner discussed the Veteran’s medical history and pertinent medical records, as well as the diagnostic criteria for diagnosing PTSD. Moreover, the examiner provided a detailed rationale for her opinion. Therefore, as the Veteran is not competent to diagnose himself with PTSD and link the disability to service, and the most probative medical evidence of record on the matter specifically determined that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD, service connection cannot be granted for PTSD. The Board noted that the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the holding in Clemons, the Board has considered the March 2020 VA examiner’s diagnosis of opioid and alcohol dependence with secondary (substance-induced) anxiety, mood, and sleep symptoms. However, the Board finds that service connection may not be granted for this disability. The controlling law provides that service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by service, but no compensation shall be paid if the disability was the result of the person’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1131 (West 2002); 38 C.F.R. § 3.303 (2019). With respect to alcohol and drug abuse, section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Public Law No. 101-508, § 8052, 104 Stat. 1388, 1388-351, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a Veteran’s own alcohol or drug abuse. See 38 U.S.C. § 1131 (2019). With regard to the diagnoses of depression, a panic disorder, and generalized anxiety disorder referenced throughout the Veteran’s treatment records, the Board finds that the evidence of record does not link these disabilities to service. There are no probative medical opinions of record, based on a review of the claims file and supported by a detailed rationale, linking these disabilities to the Veteran’s military service, and, as noted above, the Veteran is not competent to provide such a link, due to his lack of medical training or expertise. Moreover, the March 2020 VA examiner specifically attributed the Veteran’s psychiatric symptoms of depressed mood, insomnia, and anxiety to his substance-use disorders, for which service connection cannot be granted. As such, the Board finds that service connection is not warranted at this time. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for PTSD, and the benefit-of-the-doubt rule is not for application. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Durham, 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.