Citation Nr: 21025031 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-60 477 DATE: April 27, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) as due to military sexual trauma, is denied. FINDING OF FACT There is no credible, supporting evidence that the claimed in-service stressor occurred; no currently diagnosed stressor-related disorder is therefore etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 27, 1974, to October 10, 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified before the undersigned at a hearing held via videoconference; a transcript of the hearing is associated with the claims file. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that a claimed in-service stressor occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). However, where, as here, a PTSD claim is based on an in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. Examples of potentially useful evidence may include records from law enforcement, rape crisis centers, mental health counseling centers, hospitals, statements from family members, roommates, clergy, or other similar sources. Evidence of behavior changes following the claimed assault is also one type of relevant evidence that may be found from these sources. 38 C.F.R. § 3.304 (f)(5). It is also important to note that for personal assault PTSD claims, an after-the-fact medical opinion may serve as the credible supporting evidence of the reported stressor. Patton v. West, 12 Vet. App. 272, 280 (1999). The Board recognizes that the present case falls within the category of situations, to include allegations of sexual assault, in which it is not unusual for there to be an absence of service records documenting the events of which the veteran complains. See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999). Furthermore, service records may not contain evidence of personal assault, and that alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault. See YR v. West, 11 Vet. App. 393, 399 (1998). The Veteran was provided with adequate notice of what evidence is needed to substantiate his claim. A military sexual trauma outreach coordinator attempted to contact the Veteran via phone to ask if he completed a DD form 2910, DD Form 2911, or a similar form following the incident. In June 2016 notice was sent to the Veteran which explained that a Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder Secondary to Personal Assault, VA Form 21-0781(a), needed to be completed. An August 2016 letter to the Veteran explained that he was strongly encouraged to send any information or evidence as soon as possible. The letter also provided examples of additional evidence that could be supportive of his claim. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA’s duty to notify and assist. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that “absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran....”). After carefully considering the evidence of record in light of the above criteria, the Board finds that there is no credible supporting evidence that the claimed in-service stressor actually occurred; thus, the evidence as a whole does not support a finding of service connection for PTSD, or any other stressor-related condition. Diagnoses of PTSD, an unspecified stressor-related disorder, and anxiety are reflected in VA treatment records, establishing a current disability. Each is based on the Veteran’s reports of in-service sexual assault, showing, theoretically, a nexus. To be valid diagnoses, therefore, the evidence of record must establish that it is at least as likely as not the reported stressor event occurred. Whether for PTSD, requiring a verified stressor, or an alternative diagnosis, requiring only an in-service injury, the third element of the claim is necessary. The Veteran submitted a VA Form 21-0781a, a statement of his stressor event, in March 2016. He stated that during guard duty on motivation flight, someone came and asked if he wanted to play cards, and told him that he could change into his pajamas. He stated that he changed and then while playing was asked what he would do if another man wanted to have oral sex. He stated that the other person’s attitude changed when he said what he would do to a man who tried to have oral sex with him. The other individual became angry, grabbed him, pulled down his pajama bottoms, forced him to the ground, and told him he would put a broom stick up his butt. He then stated they heard someone coming and the other individual stomped on his right achilles tendon. The individual coming down the call was an officer. The Veteran stated that the officer told him to get back in uniform and get to his duty station. He said he kept his mouth shut to keep out of trouble. The Veteran also indicated several behavioral changes he experienced following the incident. In the statement in support of claim, “yes” was marked for episodes of depression, substance abuse such as alcohol or drugs, disregard for military civilian authority, unexplained economic or social behavior changes, and a break-up of his primary relationship. Service treatment and personnel records reveal no mention of the alleged assault. However, service records do document that the separation from service was based on previously undisclosed drug use in excess of acceptable limits. On October 3, 1974, the Veteran reported that he was “extremely nervous and feels he can’t take Basic Training.” He was referred for mental health assessment, and that clinic sent him to the Drug Abuse office. The Veteran reported using marijuana and hashish four times a week from July 1971 to September 1974, and hallucinogens seven times a week from August 1973 to July 1974. Immediate discharge was recommended, and this was approved October 7, 1974. Notably, on his October 1974 separation examination, which noted no psychiatric complaints or findings, the Veteran denied use of drugs. During a July 2016 VA examination, the Veteran reported that he also had an addiction to valium prior to enlisting. His drug use continued after discharge. He stated that he had trouble with alcohol and cocaine and has not had treatment for either issue. The Board finds the allegation of in-service personal assault to be not credible, and accordingly must find no nexus between service and any currently diagnosed psychiatric disability. There is no evidence to corroborate the allegation, and multiple indicators of a lack of credibility on the part of the Veteran. First, the Board notes the basis for his discharge, an extensive pre-service drug history he failed to disclose, despite being asked about such at enlistment. Similarly, the Board notes that the report of medical history filled out by the Veteran at enlistment and at separation vary significantly. At entry, numerous symptoms and conditions are checked, while at separation he mentioned only a mastoidectomy as a child. Second, there are no indicators of changed behavior in service. The Veteran stated several times that before the alleged incident, he was already having discipline problems, having attacked his squad leader and getting assigned to motivation flight. He also stated during the hearing that he had reported being nervous to his Drill Instructor before the alleged incident. In post-service VA treatment records the Veteran reported that his ankle injury, sustained in the incident, had required immobilization and rest, but such is inconsistent with contemporaneous records. Third, his account of the alleged attack has varied in important details. He described the attacker as a person with an office, a commander, and a “higher up.” He has also stated it was a fellow airman. His account of his injuries at that time have varied; he reported having his ankle stomped on, and merely being kicked in the back of the leg. He has also stated he was kicked in the rear. Fourth, the Board notes the Veteran was on active duty for only 14 days, or two weeks, and for half that time was already being seen for processing of his discharge based on drug use. The timeline he presents for his assault following altercations with a squad leader over cleaning the bathroom, and with a Drill Instructor who referred him to a mental health clinic before finally putting him on motivation flight, is unlikely. If there is no combat experience, there must be independent evidence to corroborate the Veteran’s statements as to the occurrence of a claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). A Veteran’s testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of a claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). The Board finds that the Veteran’s claim for service connection for an acquired psychiatric disorder cannot be granted because record does not reflect evidence tending to corroborate the allegation of an in-service stressor of a sexual assault during basic training. In light of the concerns over the Veteran’s credibility, such is necessary. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for post-traumatic stress disorder, and there is no doubt to be resolved. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nolan, Shane D. 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.