Citation Nr: 21031218 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-11 717 DATE: May 20, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) with pseudoseizures is granted. Entitlement to service connection for seizures, to include as secondary to traumatic brain injury (TBI) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. PTSD with related pseudoseizures is attributable to military sexual trauma (MST) in peacetime service. 2. The Veteran does not have seizures, nor has he had such disability any time incident to the claim. CONCLUSIONS OF LAW 1. PTSD with pseudoseizures was incurred during peacetime service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304(f). 2. The criteria for service connection for seizures are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 4.121. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from May 1981 to July 1981 and active duty from April 1982 to April 1985. These matters come before the Board of Veterans' Appeals (Board) from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2015 the Veteran and his spouse testified at a travel Board hearing before a Veterans Law Judge (VLJ) no longer with the Board. A transcript of the hearing is associated with the record. The Veteran waived his right to request another optional hearing before another VLJ. The Board denied these claims in June 2019. The Veteran appealed the Board's denial of these issues to the United States Court of Appeals for Veterans Claims (Court). In April 2020, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Remand (JMR). An Order of the Court dated in May 2020 granted the motion, vacated the Board's June 2019 decision, and remanded the case to the Board. In April 2021, the Veteran's attorney representative submitted additional evidence and argument directly to the Board. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime). In general, to establish a right to compensation for a present disability, a Veteran 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Certain chronic diseases as will be presumed related to service if they manifested to a compensable degree within a presumptive period following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection is also warranted for a disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Entitlement to service connection for PTSD with related pseudoseizures, is granted. Entitlement to service connection for seizures, to include as secondary to traumatic brain injury (TBI) is denied. 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. The provisions of 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 were updated via a final rule, effective August 4, 2014, in part to substitute references to the DSM-IV for the DSM-5. The changes are applied to applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, but not to claims certified to or pending before the Board, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit. The Board notes that the appellant's case was certified to the Board after the effective date of the final rule. Thus, the Board will refer to the DSM-5 criteria herein. The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy" or was a prisoner of war (POW) as established by official records, including recognized military combat citations or other supportive evidence. If VA determines that the veteran engaged in combat with the enemy or was a POW and the alleged stressor is combat or POW related, then the veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with the circumstances, conditions or hardships of service." 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f); Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 91 (1993). If, however, as here, VA determines that the veteran did not engage in combat with the enemy or was not a POW, the veteran's lay testimony by itself, is insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's statements or testimony. Cohen v. Brown,10 Vet. App. 128 (1997).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 one contracted by VA 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, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. In this context, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 38 C.F.R. § 3.304 (f)(3). If a PTSD claim is based on military sexual trauma (MST) or personal assault in service, evidence from sources other than the veteran's records may corroborate the veteran's account of the stressor incident. 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. Mengassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). 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. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304 (f) (5). Service treatment records show that on his December 1981 enlistment examination, the Veteran received a normal psychiatric evaluation, and he denied any history of mental health symptoms on the associated report of medical history. The Veteran exhibited symptoms of nervousness and anxiety in January 1984 and January 1985. The diagnosis provided in service was situational anxiety and appeared to stem from his father being seriously ill and the knowledge that his mother was unable to provide entirely adequate care. No psychiatric concerns were noted upon his separation examination or associated medical history in March 1985.The Veteran did not seek mental health treatment until May 2013 but asserts that his symptoms were dormant for nearly 30 years until he started having syncopal episodes with behavioral changes.VA medical records show diagnoses of PTSD, major depressive disorder, anxiety, conversion disorder, and possible personality disorder. These VA medical records show that the Veteran reported a history of physical and emotional abuse from his stepfather during childhood as well as sexual abuse from a maternal aunt and her friends during childhood. During a January 2016 VA examination, the Veteran reported for the first time that he received mental health treatment for suicide attempt when he was around 16 years of age. As will be discussed below, service connection for PTSD is being granted due to fact that there is a diagnosis of PTSD based on MST that has been related to service by the most credible and probative evidence of record. Also, the most credible and probative evidence shows that the currently diagnosed pseudoseizures are due to the PTSD. Finally, the preponderance of the evidence is against finding that there is a current seizure disorder. All of the signs and symptoms that are argued to be manifestations of a seizure disorder have been medically attributed to pseudoseizures, which are herein being service-connected as related to the PTSD. There is no disease or residual of an injury with regard to the seizure claim. The Veteran argues that he has PTSD due to MST in service. While he has reported multiple stressors over the years of this appeal, he has most emphatically reported that he was sexually assaulted by a supervisor onboard the USS Saratoga. We note that he did not engage in combat. A fellow shipmate submitted a buddy statement indicating he observed unusual behaviors in the Veteran at the time of the alleged assaults, and this shipmate reported that the Veteran years later explained there was a sexual assault. See November 2015 statement from J.H.F. We note that his second DD form 214 reflects that he served aboard the Saratoga. The record must contain credible supporting evidence that corroborates the Veteran's statements for the purpose of establishing the occurrence of his alleged stressors in support of an award for service connection for PTSD. The JMR directs the Board to examine the lengthy negative medical opinion it obtained in July 2018 to address the pre-decisional assertions made by the Veteran's attorney in December 2018 that the opinion was inadequate. That opinion agreed with the November 2017 medical opinion that was wholly against the claim in every respect. Critically, the clinician stated that a DSM-V diagnosis could not be provided for this Veteran due to extensive records that report that he and his spouse clearly want financial compensation for service connection benefits. The extensive financial gain records, in addition to objective psychological testing results, suggested to the examiner feigning of symptoms, and inconsistencies across time about which stressful event has led to the Veteran's reported mental health symptoms and make it impossible to provide any DSM-V diagnosis. They felt the almost a 30-year gap between the Veteran's military discharge in 1985 and the first report of mental health symptoms in 2013 showed that if any mental health condition did indeed exist, it was less likely than not a result of or incurred during the Veteran's military service. The examiner stated that the only symptoms reported in the military were transient, situation stress reactions; furthermore, given concerns about the validity of the Veteran's report, it was not possible to determine if the reported MST occurred and/or if there are any trauma-specific symptoms secondary to the reported MST. As directed in the JMR, the Board has examined the 2018 opinion anew and, upon review of the whole record, finds it inadequate. We particularly cite to the detailed February 2021 opinion of clinical neuropsychologist Serina Hoover, Psy.D. who interviewed the Veteran and reviewed the entire record. She wholly disagreed with the opinion and explained that while financial gain should always be considered when evaluating the credibility of a patient's self-report, the patient's desire for compensation should never be used to deny the existence of a psychiatric diagnosis. We note her credentials were provided with her report and accept that she is competent. She disagrees with the VA clinician's assessment of no diagnosis due to references to secondary gain. Rather, she found after a detailed review of the record, which she noted included over seven thousand documents, that the Veteran's diagnosis is indeed PTSD due to the stressors of the MST he has reported. She explained that the Veteran meets the criteria for PTSD under both DSM IV and DSM IV. She cited to support for the diagnosis in the VA treatment record dating from 2013. A detailed review of Dr. Hoover's opinion and rationale is illustrative as to the service connection issues in this case. Dr. Hoover noted the Veteran has consistently reported symptoms consistent with PTSD directly related to his MST. At the time of the MST, as noted in November 2016 VA examination for PTSD, he was ashamed and felt it was his fault. In May 2013 he reported suicidal ideation, depression, and anxiety for the past ten years. In June 2014 he reported experiencing guilt and worthlessness. In June 2015 he was referred for an initial behavioral health evaluation for trauma-related therapy for MST. The Veteran self-identified that he wanted therapy for his MST as it had been causing a lot of problems in his life. He reported many symptoms, including anhedonia, depressed mood, insomnia, lack of self-worth, trouble concentrating, and suicidal ideation. He reported being distressed primarily by his MST. In June 2016, he was asked to describe the most distressing traumatic event, and he again discussed his MST when he was raped by his supervisor and was told if he told anyone about the incident he would be killed. He reported in the August 2017 lay statement that as a result of the MST, he has struggled with nightmares and flashbacks. Currently, he reported he is afraid to shower and he struggles with physical intimacy, directly related to his MST. In her professional medical opinion, the most likely cause of the Veteran's PTSD was his MST. She pointed to considerable empirically validated research to show that military sexual trauma results in the development of PTSD (Kintzle, Schuyler, Ray-Letourneau, Ozuna, Munch, Xintarianos, et al., 2015). She noted that, according to the DAV, sexual assault survivors in the military show a higher lifetime prevalence rate of PTSD in men (65 percent). VA Medical record data indicates that PTSD is one of the most common disorders that develop in response to sexual traumas. Therefore, she found clear evidence to support that the Veteran's MST described by him was at least as likely as not the cause of his current PTSD. In her professional opinion, it would be unethical to assume that any individual filing for monetary assistance is exaggerating their symptoms, as it is often the individuals with severe mental illness that require financial assistance because they are unable to work or otherwise financially provide for themselves. Furthermore, in her professional experience overreporting is a common phenomenon, and often the result of a 'cry for help' rather than an attempt to feign symptoms. Moreover, symptom exaggeration does not mean that bona fide symptoms do not exist. Therefore, after a comprehensive review of the Veteran's medical records and interview, Dr. Hoover respectfully disagreed with the opinion of the 2018 VA clinician. During the evaluation, the Veteran's responses appeared credible to Dr. Hoover and were consistent with his medical records. The Board thus concedes the Veteran's stressor of MST, the details of which are extensively reported in the record by the Veteran and have been found credible based upon examination and record review by Dr. Hoover. We find credible supporting evidence of the stressor in the nature of the STRs. Upon review of the record, the Board finds the evidence to weigh in favor of a finding that the Veteran's current PTSD is due MST in service. Dr. Hoover's opinion is the most probative evidence as it is well-supported and thorough. It gives well-supported reasons for rejecting the negative VA opinion. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for PTSD due to MST is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The record supports the conclusion that all of the mental health symptoms currently present are attributable to PTSD and any attempt at differentiation would be artificial. Here, we are referencing Dr. Hoover's finding of pseudoseizures. We find that the preponderance of the evidence shows these are a manifestation of the Veteran's PTSD. We emphasize that Dr. Hoover finds no actual seizure disorder, consistent with the rest of the record. Rather, she explains that there is instead the condition of pseudoseizures that is a part of or due to the PTSD. Relevant to seizures, when there is doubt as to the true nature of epileptiform attacks, neurological observation in a hospital adequate to make such a study is necessary. To warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician. 38 C.F.R. § 4.121. Dr. Hoover observed that the medical records have repeatedly documented that there is no neurological basis for the seizures and his seizures are consistent with a pseudoseizure diagnosis. This opinion is the most probative evidence on this issue, as we note again that Dr. Hoover thoroughly reviewed the record, supported her opinion with reference to facts and medical literature, and is a clear expert in this field as reflected in her credentials. Thus, we find that there is no seizure disorder, instead the pseudoseizures are related to PTSD and are therefore service-connected as part of this acquired psychiatric disorder. There is no disease or residual of an injury with regard to the seizure claim. As to seizures, as stated above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich, 104 F. 3d at 1328. In the absence of evidence of a present disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. Evidence must show that the Veteran currently has the disability for which benefits are being claimed. There is no evidence of a reliable diagnosis of seizures. Rather, the all of the competent evidence confirms there is no such disease or residual of an injury with regard to the seizure claim. The claim is denied as to seizures for this reason. REASONS FOR REMAND TDIU is remanded. The Veteran argues that TDIU is warranted due a combination of disabilities to include his PTSD and related pseudoseizures. While we note that Dr. Hoover has indeed opined on the occupational impact of the PTSD and pseudoseizures, we will not assign a rating in the first instance. The issue of TDIU may be dependent on the rating assigned for the disorder. As such, the inextricably intertwined issue of TDIU is remanded for consideration in light of the grant of service connection. The matter is REMANDED for the following action: Readjudicate the issue of a TDIU in light of the grant of service connection in this decision, and any rating assigned by the AOJ for the disorder, to include performing any appropriate development pertinent to the Veteran's claim. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. RIPPEL, 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.