Citation Nr: 21024096 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-20 831 DATE: April 22, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for an acquired psychiatric disorder, other than PTSD, is denied. FINDINGS OF FACT 1. The Veteran had active service from September 1983 to April 1987. 2. Service personnel records reflect problems with alcohol abuse shortly after the claimed military sexual trauma (MST). 3. The currently-diagnosed PTSD is etiologically related to service. 4. An acquired psychiatric disorder was not shown in service and is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, an acquired psychiatric disorder, to include PTSD, was incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2020). 2. An acquired psychiatric disorder was not incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal was previously before the Board in March 2019 at which point it was remanded for further development. There has been substantial compliance with the remand directives, and there is no bar to proceeding with the appeal. Stegall v. West, 11 Vet. App. 268, 271. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). With specific regard to posttraumatic stress disorder (PTSD) claims, three elements must be present: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (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); Cohen v. Brown, 10 Vet. App. 128 (1997). Service Connection for PTSD Turning to the medical evidence, the VA examinations and clinical records show current diagnoses of PTSD, other specified personality disorder, and major depressive disorder. As such, a current diagnosis of PTSD has been shown and the first element of service connection has been met. Next, a September 2016 VA psychiatrist stated that PTSD was at least as likely as not incurred in or caused by the claimed in-service event. She found that based upon the facts as identified by the Veteran regarding in-service traumas, PTSD was secondary to traumas experienced while on active duty. However, she did note that the recent psychologist testing results indicated that malingering and the veracity of the Veteran’s self-reported in-service trauma was questionable. In March 2017 addendum opinion, the same psychiatrist explained that there were no behavioral or emotional consequences uniquely related to military sexual assault or personal assault. Further, she noted that documented behavioral problems during service does not necessarily indicate that personal trauma took place. However, as the examiner also mentioned, it is not the duty of the medical examiner to determine whether the claimed in-service event took place. As such, she concluded that PTSD was likely caused by the facts of the in-service trauma as presented to her, and therefore, the medical evidence supports a nexus between PTSD and service and the second element of service connection has been met. Further, a January 2020 private psychiatrist concluded that the Veteran was clearly suffering from PTSD based upon military sexual trauma and secondarily on events which occurred in the Honor Guard. Next, the Veteran reports that he was assaulted by a fellow service member during service in approximately March 1986. Specifically, he stated that he and a non-commissioned officer went out for drinks one night and the officer sexually assaulted him in a motel room. The officer threatened to kill him if he told anybody about the incident. The service treatment records (STRs) neither confirm nor deny the assertions of military sexual trauma (MST). However, the Veteran has never claimed to have sought medical treatment related to the MST during service. By law, the absence of a record of an unreported sexual assault cannot be considered as evidence of the nonoccurrence of the assault under such circumstances. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Therefore, the absence of any service record documenting the assault is not pertinent evidence that the assault did not occur. In this regard, the medical evidence the evidence is at least in equipoise as to whether the Veteran experienced MST during service supports a nexus between PTSD and service. In a PTSD claim based on in-service personal assault, evidence of behavior changes following the claimed assault is one type of relevant evidence that may corroborate a veteran’s account of the stressor incident. 38 C.F.R. § 3.304 (f)(5). 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. Looking to other evidence of record, the STRs reflect that the Veteran sought treatment for alcohol abuse in August 1986, several months after the alleged MST. He indicated that he was drinking approximately 24 beers three nights a week and had experienced blackouts two to three times over the last two years. Treatment notes reflect that the Veteran was experiencing legal, work, and family problems. Further, a March 1987 alcohol rehabilitation treatment note showed that he continued to seek treatment for alcohol abuse. As such, the record reflects that the Veteran began seeking treatment for alcohol abuse shortly after the alleged MST. As to post-service medical records, the Veteran first reported MST in April 2003 during a psychiatric treatment session. A September 2016 VA psychiatrist found that the Veteran’s psychological testing results showed exaggerated self-reporting of symptoms. Further, she found that very elevated scores on trauma symptom testing were consistent with improbable PTSD symptoms. Next, she noted that the Veteran did not identify MST until after the initial denial of his PTSD claim and the details of the trauma increased over time. Based upon the facts and medical research, the examiner concluded that the Veteran’s profile of psychological test scores were consistent with malingering and the veracity of his self-report was manifestly questionable at best. However, in a March 2017 addendum opinion, the same examiner explained that the facts loosely supported PTSD secondary to MST markers as identified by medical literature. She also stated that it was beyond the scope of work as a psychiatrist to determine whether a specific event, such as MST, occurred during the Veteran’s service. Further, she explained that the presence of or absence of behavioral markers in the personnel records does not rule out MST as there are no behavioral-emotional sequelae specific to MST. During a January 2020 tele-health examination, a private psychiatrist found the Veteran’s responses and descriptions of his trauma and symptoms valid and did not indicate evidence of malingering, contrary to the results of the VA examination. In sum, the evidence is at least in equipoise as to whether the MST occurred. As the Veteran did begin alcohol rehabilitation during service after the alleged MST, this evidence and change in behavior supports his assertions. Further, while the VA psychiatrist who examined the Veteran found that symptoms and trauma associated with PTSD were exaggerated, she concluded that the truth of his self-report was questionable and could not be ruled out. Later, the January 2020 psychiatrist did not find evidence of malingering, the evidence of record remains insufficient to verify the stressor. Accordingly, the evidence is at least in equipoise and the benefit of the doubt must be granted to the Veteran. To this extent only, the appeal is granted. Service Connection Acquired Psychiatric Disorder As noted above, the Veteran has been diagnosed with PTSD, other specified personality disorder, and major depressive disorder. As such, an acquired psychiatric disorder has been shown and the first element of service connection has been met. Next, as to in-service incurrence, the STRs do not reflect complaints of or treatment for an acquired psychiatric disorder during service. In May 1986, a mental health treatment note reflected that the Veteran was feeling somewhat depressed due to marital problems with his parents. He was encouraged to vent his feelings, but no diagnosis of a psychiatric disorder was made. Further, he opted out of his separation examination, so no psychiatric evaluation was performed at the time of discharge. Accordingly, the medical evidence does not show a diagnosis of a psychiatric disorder during service and the second element of service connection has not been met. To the extent that the Veteran asserts that the Veteran experienced symptoms of depression, along with others, the Board notes that they were specifically considered as part of the grant of service connection for PTSD. Therefore, the Veteran did not have psychiatric symptoms or a diagnosis that was not already contemplated in the grant of service connection for PTSD. The Board has considered the Veteran’s lay statements that an acquired psychiatric disorder was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). M. YACOUB Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kokolas, 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.