Citation Nr: 21024425 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 20-09 969 DATE: April 22, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for depressive disorder is denied. FINDINGS OF FACT 1. The Veteran is not currently diagnosed with PTSD. 2. The Veteran is currently diagnosed with depressive disorder. 3. There was no psychiatric injury, disease, or event during service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 2. The criteria for service connection for depressive disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from June 1994 to December 1999. The Veteran originally requested a Board of Veterans Appeals (Board) hearing on the January 2020 VA Form 9, but later withdrew the request for a hearing in a March 2020 letter. In the January 2020 substantive appeal (on the VA Form 9) the Veteran also specifically limited the appeal to the issues stated above. 1. Service Connection for PTSD Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f). See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between 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). 38 C.F.R. § 4.125 requires PTSD diagnoses to conform to DSM-5 as the governing criteria for diagnosing PTSD. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Upon review of all of the evidence of record, lay and medical, the Board finds that the weight of the evidence shows no current diagnosis for PTSD. The VA and treatment records do not contain a confirmed PTSD. See 38 C.F.R. § 4.125. The November 2019 VA examiner also specifically assessed that the Veteran did not have PTSD. Accordingly, the Board finds that the weight of the evidence is against finding that the Veteran is currently diagnosed with PTSD; therefore, the appeal for service connection for PTSD must be denied. 2. Service Connection for Depression The Veteran contends that he experienced military sexual trauma (MST) related to two psychiatric events in service that caused the current acquired psychiatric disability. The Veteran claims that in September 1994 a civilian offered him a beer, that the two drank together in a parking lot, and that the civilian rubbed the Veteran’s groin area. See March 2020 memo in support of claim for service connection. The Veteran also claims that in December 1995 a fellow servicemember fondled the Veteran’s genitals while he was asleep. See March 2020 memo in support of claim for service connection. The Veteran stated that he did not seek treatment out of fear that any treatment would impact the ability to obtain work as a federal contractor. After reviewing all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding of MST or psychiatric symptoms during active service. Service treatment records, which are complete, are absent for any complaints of, diagnoses of, or treatment for a psychiatric disease or symptoms during service, and the Veteran was psychiatrically evaluated as normal at the November 1999 service separation examination. 38 C.F.R. §§ 3.303(c), 4.9. The November 1999 report of medical history at service separation, which was completed by the Veteran, reflects that the Veteran explicitly denied depression or excessive worry, nervous trouble of any sort, and frequent trouble sleeping. A March 1998 report of medical examination during service also reflects the Veteran was psychiatrically evaluated as normal, and the corresponding report of medical history reflects the Veteran denied depression or excessive worry, nervous trouble of any sort, and frequent trouble sleeping. The earliest account of the alleged psychiatric events/genital touching, which the Board finds to be inconsistent with, and outweighed by, other lay and medical evidence of record, appears in an October 2016 VA treatment record, which is over 10 years after the alleged incidents. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board’s denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). The weight of the evidence is against finding that the claimed in-service MST occurred. The Veteran is not credible in reporting this alleged event. The evidence shows no symptoms following the claimed MST events, and no indicia of the event having occurred, including no behavioral markers to suggest the occurrence of such event. The evidence of record does not reflect the Veteran ever sought treatment or underwent mental health counseling due to MST. The record does not contain any statement from a roommate and/or fellow servicemember corroborating the Veteran’s account of the alleged MST. The earliest account of the alleged sexual assault, which the Board finds to be inconsistent with, and outweighed by, other lay and medical evidence of record, is over 10 years after the alleged incident. In making its finding of no in-service injury, disease, or event, the Board is not relying on the absence of service treatment record or service personnel record evidence of the Veteran’s report of MST to military authorities because the occurrence of the MST is not a fact that would be expected to be reported. See AZ v. Shinseki, 731 F.3d 1303, 1315-18 (Fed. Cir. 2013). In this case, the Veteran has not alleged that he reported an alleged MST to authorities. Rather, the Board is relying on the absence of any indirect evidence during service that the event occurred, including an absence of behavioral markers. The Veteran has claimed he did not seek treatment during service out of fear that any treatment would impact the ability to work as a federal contractor. In this case, the Board is relying on absence of symptoms or indicia that would be expected to be reported, e.g., mental health counseling for psychiatric symptoms (though not necessarily report of MST), and/or any statement from a roommate and/or fellow servicemember corroborating the Veteran’s account of the alleged MST. See AZ v. Shinseki, 731 F.3d 1303, 1315-18 (Fed. Cir. Sept. 30, 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran’s failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported). Rather, in making this finding, the Board is relying on the affirmative evidence that is of record, lay and medical, that includes the Veteran’s own reports of medical history, as well as other regulatory markers and behavioral change criteria (see 38 C.F.R. § 3.304(f)(5)). (Continued on the next page)   Based on the foregoing, the Board finds that the weight of the evidence demonstrates no in-service injury, disease, or event, including the alleged MST. For this reason, a preponderance of the evidence is against the claim for service connection for depressive disorder, and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Tenney, 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.