Citation Nr: 21041163 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-61 738 DATE: July 8, 2021 ORDER Entitlement to service connection for a variously diagnosed psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT 1. The Veteran did not serve in combat; his allegations of being a victim of a personal/sexual assault in service are not credible; and he does not have a diagnosis of PTSD based on a corroborated stressor event in service. 2. The Veteran's diagnosed personality disorder is not a compensable disability; there is no evidence that any acquired psychiatric disability was superimposed on a personality disorder during or by military service; and no acquired psychiatric disability is shown to have been manifested in or to be etiologically related to his service. CONCLUSION OF LAW Service connection for a variously diagnosed psychiatric disability, to include PTSD, is not warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from November 1982 to November 1986. This matter is before the Board on appeal from an April 2015 Department of Veterans Affairs (VA) rating decision. In October 2020, a videoconference hearing was held before the undersigned; a transcript is in the record. In February 2021, the matter was remanded for additional development. Entitlement to service connection for a variously diagnosed psychiatric disability is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Generally speaking, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Cohen v. Brown, 10 Vet. App. 128, 142 (1997). That is to say, a stressor usually cannot be established as having occurred merely by after-the-fact medical nexus evidence. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). If, as here, a PTSD claim is based on an alleged personal or sexual assault in service, then evidence from sources other than the Veteran's service records may corroborate an account of the stressor incident. 38 C.F.R. § 3.304(f)(5). 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. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. See M21-1 IV.ii.1.D.17. 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. The Veteran contends that he has PTSD due to personal assault in the military. He has reported a personal assault by a lieutenant commander, between March and June 1983, after his completion of corpsman school. He contends that he was at the top of his class but, after he declined the lieutenant commander's sexual advances, he was put on front gate guard duty in retaliation. He testified that after two months he realized what had happened and requested a transfer. On the Veteran's July 1982 service entrance examination, psychiatric evaluation was normal. His STRs are silent for psychiatric complaints, findings, treatment, or diagnosis. On November 1986 service separation examination, psychiatric clinical evaluation was normal; in a contemporaneous report of medical history, he denied any history of frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. The Veteran's service personnel records reflect that he served during peacetime and did not serve in a hostile environment. His DD 214 reflects that he received an honorable discharge and was released from active duty and transferred to the Naval Reserve. On May 2007 VA treatment, a PTSD screen was positive. On June 2007 VA treatment, the Veteran responded that he had no military sexual trauma; regarding the positive PTSD screen, he stated that he had experienced an event that involved actual or threatened death or serious injury to him or someone else that caused him to experience intense fear, helplessness, or horror. On March 2012 VA treatment, a PTSD screen was negative. In an April 2015 stressor statement, the Veteran alleged that in approximately June 1983, while stationed at the Naval Health Science Mission Area, he was sexually molested by his lieutenant commander when the officer took him and another recruit to dinner for being the instructor's aides. He stated that he never told anyone or filed a report until now. In a May 2015 notice of disagreement, the Veteran alleged that his commander assaulted him after he had completed corps school. He alleged that he was at the top of his class but was assigned guard duty at the hospital because the officer was punishing him. He stated that he told multiple people about the incident including his now-deceased parents, and that he had not sought counseling. On June 2015 VA treatment, a PTSD screen was positive. From August 2015 through May 2017, the Veteran received mental health treatment for PTSD related to military sexual trauma. In his December 2016 substantive appeal, the Veteran stated that he never told any family, friends, or spouse about the alleged personal assault. At the October 2020 hearing, the Veteran testified that when he was assistant to the lieutenant commander who ran the corpsmen school, there was an incident with the lieutenant commander when he turned down the officer's advances; there were no further advances. He testified that he had been one of the top students in his class but, when duty stations were assigned a few months later, he was put into a secondary school and given guard duty at the front gate instead of a job in the hospital, which he thought he deserved. He testified that the lieutenant commander came in through that front gate daily, and he had to salute him, and felt there was "constant quid pro quo ... seeing this lieutenant commander on a daily basis at the guard station". He testified that he became angry and after two months of gate duty, and requested a transfer at the personnel office, which was granted. He testified that he later got a job in the surgical ICU. He testified that he did not tell any friends, family members, or anybody in his chain of command about the incident and did not seek mental health treatment during service. He testified that he has been dealing with his anger about the lack of a merit-based system since then, including not trusting superiors at work. In November 2020, the Veteran submitted a statement from his sister, who stated that their [late] mother talked often of the Veteran's time in the Navy and shared many of his experiences, including "an incident of quid pro quo from [his] superior officer". He also submitted statements from two friends who stated that, in 1983, the Veteran told them about an incident involving a superior officer who made sexual advances toward him and, when the Veteran refused, he was treated unfairly in retaliation. In the February 2021 remand, the Board noted that the nonspecific nature of the descriptions of the claimed "sexual assault" raised a medical question regarding sufficiency of the alleged stressor event to support a diagnosis of PTSD, and sought development for an examination to secure a medical opinion in this matter. On March 2021 VA examination, the examiner noted the June 2007 positive PTSD screen, when the Veteran did not attribute any of his symptoms to a military sexual trauma incident. The examiner also cited to a January 2016 visit, stating, "This is an example in which the mental health treatment provider reports Veteran's primary treatment need and primary symptoms in a context that is unrelated to MST or PTSD: narcissism, passive-aggressive behavior, martyr-like behavior, lack of significant relationship with others." The Veteran reported that the task of standing guard duty was deferred while he was completing corpsman school because he was selected, with another high performing student, to serve as a peer tutor/instructor for others who needed more assistance to learn course material. He reported that in the spring of 1983, he was advanced into the pharmacy tech program which began that fall, and that after he completed the program, because he had excelled, he was allowed to select Idaho Falls as his station, which afforded him the ability to work more independently. He reported that he received an honorable discharge and received no formal disciplinary action during service. The examiner opined that there was no relevant mental health history during the Veteran's service based on the current exam and review of any available medical records. The Veteran reported that he first initiated mental health counseling with his wife to address relationship concerns prior to their divorce, and that following his divorce he initiated counseling because his "life was falling apart". Regarding the alleged stressor incident, the examiner opined that the stressor is not adequate to support a diagnosis of PTSD, and is not related to in-service personal assault, e.g. military sexual trauma. The examiner opined that none of the diagnostic criteria for PTSD were met. Following a mental status examination, the examiner opined that the Veteran does not have a diagnosis of PTSD that conforms to DSM-5, and his symptoms do not meet the diagnostic criteria for PTSD under DSM-5 criteria. The sole diagnosis was schizoid personality disorder. The examiner opined that it is unlikely that the Veteran's STRs and his personal statement of the stressor incident support that the claimed MST stressor occurred and resulted in the claimed PTSD symptoms. The examiner opined that, based on the Veteran's description of the incident, a lieutenant commander initiated sexual contact with the Veteran, who did not describe offering verbal or non-verbal disagreement to the act; the Veteran related that the officer asked for verbal consent to perform a sexual act on the Veteran, he verbally expressed that he did not consent for the act to be performed on him, and the officer discontinued sexual contact and returned him to the base immediately. The examiner opined that, based on the Veteran's own description, the officer elicited the Veteran's decision regarding consent, the Veteran then competently made and expressed a decision regarding non-consent, and the officer respected the Veteran's decision regarding non-sent. The examiner opined that this series of events is incongruent with a sexual assault or with instances of assault that typically induce PTSD symptoms among young adults who have no previous history of sexual trauma. The examiner further opined that it is unlikely that the STRs support that the current symptoms of the Veteran's diagnosed schizoid personality disorder were incurred in or caused by an MST-related event in service. The examiner opined that the Veteran's symptoms are the result of the diagnosed disordered personality which formed during childhood, having been shaped through an interaction of inherited tendencies and early childhood environmental factors, including having a parent who was emotionally distant and unresponsive to the Veteran's emotional needs. The examiner opined that the Veteran's symptoms result from his schizoid personality disorder, which developed prior to military enlistment, unrelated to the incident in service that he described. The examiner opined that the Veteran's claimed mental health conditions (including the claimed conditions and/or symptoms of PTSD, anxiety, depression, and/or insomnia) are best accounted for by schizoid personality disorder, diagnosed in accordance with DSM-5 criteria, which developed during childhood. The examiner opined that diagnosed disordered personality is not etiologically related to the Veteran's experiences while serving in the military. The examiner explained in great detail that the Veteran's therapy is uncharacteristic of PTSD and is instead representative of interpersonal and interpsychic difficulties that are best explained by schizoid personality disorder. The VA examiner opined that review of the record and clinical interview found no report or evidence of noted behavior changes or of any negative repercussions that had followed as a result of the claimed incident. The examiner opined there was no evidence of a need to transfer or of a request for transfer to another military duty assignment, and there is no evidence of retaliation. The examiner opined that, consistent with the Veteran's description, there is evidence that a merit-based reward system was in place and was strictly followed after the claimed in-service incident had occurred, and subsequently, a merit-based reward system was in place and followed with regard to duty assignment post pharmacy training. The examiner opined there is no evidence of deterioration in work or school performance, no other markers (substance abuse, unexplained mental health symptoms, and no unexplained economic or social behavior changes) were reported or evidenced. Regarding the guard duty assignment, the examiner noted the Veteran's explanation that he was relieved from guard duty during the school term so that he could engage in peer tutoring assistance; when corpsman school ended, he was then assigned to guard duty. The examiner opined that this suggests a causal relationship: a new assignment (guard duty) made because the previous assignment (peer instructor) was no longer available/possible. The examiner opined that there is insufficient evidence that a new duty assignment would constitute a marker of sexual assault. The Veteran's primary theory of entitlement to service connection for a psychiatric disability is that he has PTSD due to stressor events in service. As an initial matter, the Board notes that the evidence does not show, nor does the Veteran contend, that he engaged in combat or served in circumstances consistent with fear of hostile military or terrorist activity. Instead, he asserts that his alleged stressor is related to personal assault, to include military sexual trauma (MST). The Board notes that the evidentiary record includes widely inconsistent and contradictory accounts by the Veteran regarding the occurrence of an alleged MST stressor event in service, and that considering the conflicting nature of his various accounts they may not all be accepted as credible. Therefore, an assessment of the credibility of his various accounts is necessary. The Board notes that his account of military sexual trauma (MST), which appears to be the basis for the diagnoses noted in VA treatment records, was first reported in the compensation-seeking process and would not of itself suffice to constitute credible corroborating evidence of a stressor event in service. In determining whether statements submitted by a Veteran (here reporting a stressor event in service) are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The Board finds that the Veteran's reports of MST/personal trauma in service, are not credible. His STRs are silent for psychiatric complaints, and he denied any psychiatric history on service separation examination. His service personnel records do not show or suggest the faced any disciplinary matters in service; his duty station assignments reflect he successfully completed initial recruit training, then medical corpsman, and then pharmacy technician training (interspersed with periods of temp duty pending further assignment to his ultimate (preferred, as he reports based on his performance) duty station in Idaho Falls, Idaho, where he served until his separation from service. Nothing in those records suggests that he was subjected to an MST stressor event in service. Furthermore, the more contemporaneous (prior to April 2015) pertinent postservice treatment records which include a negative PTSD screen in May 2007, a June 2007 treatment record when he denied experiencing MST but reported a life or health-threatening event, and a negative PTSD screen in June 2012 consistently show he either denied, or did not endorse, being a victim of MST in service. It was not until he initiated the compensation-seeking process [for PTSD] that he reported being a victim of MST in service; even then he initially stated (in an April 2015 stressor statement to VA) that he never told anyone that such event occurred. Thereafter, his reports regarding whether he told anyone are widely contradictory. In a May notice of disagreement he said he told multiple persons about the event-including his deceased parents. In his substantive appeal in December 2016 he stated he never told family, friend, or his spouse about the alleged event. And in sworn testimony at the October 2020 hearing before the undersigned, he stated he did not tell friends, family members, or anyone in his chain of command that the event occurred. Then, the next month he submitted lay statements from a sister (describing their deceased mother's accounts to her of his experiences in service, including the alleged event) and from two friends (essentially to the effect that he told them in 1983, when the event allegedly took place, that the event occurred), notably contradicting his own sworn testimony. That an alleged traumatic event such as a personal/sexual assault in service had a profound effect on the Veteran, as he has claimed, is belied by the fact that he was given an honorable discharge with no Medical Board findings or similar notations in the record to reflect any negative impact on performance. As was noted by the March 2021 VA examiner, there was no evidence of a mental condition in service. Considering the foregoing, and that the Veteran's sister's and friends statements reporting recollections of remote events are inconsistent with more-contemporaneous clinically and officially recorded data, the Board concludes that the preponderance of the evidence is against a finding that there is credible corroborating evidence of an alleged MST stressor event in service. Regardless, assuming strictly for purposes of this decision (as the March 2021 VA examiner apparently did) that the alleged event occurred as the Veteran has described it, the Board notes that the VA examiner opined that the Veteran does not meet the diagnostic criteria for PTSD under DSM-5 criteria. Addressing the Veteran's descriptions of the events that transpired the examiner explained in detail why based on the Veteran's own descriptions the alleged incident did not constitute an event sufficient to result in PTSD. The examiner provided a detailed explanation of rationale, noting that the Veteran's therapy (to include his self-identified goals, therapeutic focus, and session content) is uncharacteristic of PTSD. The Board finds that the March 2021 VA examiner's report concluding that the Veteran does not have a current psychiatric disability related to service, as he does not meet any criteria for such diagnosis, either stressor or symptom related, but instead has a schizoid-personality disorder (which is not a compensable disability) unrelated to service warrants substantial probative weight, as it incorporates findings and statements made by the Veteran throughout the pendency of this claim, and it explains in detail why the complaints and findings do not support a nexus between any diagnosis of a psychiatric disability and the Veteran's service, and instead support the diagnosis of the alternate diagnosis (of a personality disorder) found. The Board finds the report of the examination adequate for rating purposes, and finds it to be probative and persuasive evidence regarding the diagnosis of the Veteran's psychiatric disability and its etiology. Notably, on the occasions (in 2015 to 2017) when PTSD was diagnosed (by VA treatment providers), they did not identify the specific stressor underlying such diagnosis (discussing the stressor in general terms), did not identify the evidence supporting that the stressor occurred, or its sufficiency (referring in general terms to the Veteran's accounts of a personal assault), and did not identify the full constellation of symptoms that supported the diagnosis of PTSD. Therefore, those diagnoses, while sufficient to trigger a need for further development to confirm the nature and likely etiology of the claimed disability, lack sufficient probative value to be persuasive. The preponderance of the evidence is therefore against a finding that the Veteran has PTSD based on a personal (MST) assault stressor in service. In reaching this conclusion, the Board acknowledges that verification of an in-service stressor by service personnel records is not required and a mental health professional's opinion may be considered in determining whether the occurrence of a stressor is corroborated under 38 C.F.R. § 3.304(f)(5). See Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). However, as in Menegassi, the Board has weighed all of the evidence, including the Veteran's statements and the post service opinions of mental health professionals, and concluded that the preponderance of the evidence is against a finding that he has PTSD based on a stressor in service. As was noted above, the personality disorder diagnosed on VA examination is not, of itself, a disease or injury within the meaning of applicable legislation [i.e., not a compensable disability]. 38 C.F.R. §§ 3.303(c), 4.9. A congenital or developmental defect such as a personality disorder can be subject to superimposed disease or injury (as pertinent here, a chronic acquired psychiatric disability), and if it occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). See also 38 C.F.R. § 3.303(c). However, here there is no evidence that any such superimposed disease or injury occurred during military service. A chronic acquired psychiatric disability was not noted in service or clinically noted postservice for many years after the Veteran's separation from active duty service. Thus, service connection for an acquired psychiatric disability on the basis that such disability became manifest in service and persisted is not warranted. As a psychosis is not shown to have been manifested in the first postservice year, the chronic disease presumptive provisions of 38 U.S.C. §§ 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 do not apply. The Board finds that the service and postservice treatment records, overall, provide persuasive evidence against this claim, establishing that the Veteran does not have a current chronic acquired psychiatric disability that is etiologically related to his service. Regarding the Veteran's own opinion that he has PTSD or another acquired psychiatric disability that is due to his service, he is a layperson and has not demonstrated or alleged expertise in establishing, or determining the etiology of, a psychiatric diagnosis. Those are medical questions beyond the realm of common knowledge or resolution by lay observation. He has not provided any supporting medical opinion or medical treatise evidence; does not cite to any supporting factual data; and does not offer any explanation of rationale for his opinion. Therefore, his opinion in this matter has no probative value. The diagnosis of a specific mental disability is not a matter capable of resolution by lay observation (see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)). While a layperson may provide testimony bearing on etiological factors for a psychiatric disability (see Davidson, supra), what has caused a specific psychiatric diagnosis is a question beyond the scope of common knowledge or lay observation. It requires medical training/expertise (see Jandreau, supra). The Veteran does not cite to supporting medical literature, and his statements relating any current psychiatric diagnosis to an event or events in service cannot be found to be competent evidence in the matter. The preponderance of the evidence is against his claim of service connection for a psychiatric disability, to include PTSD, and the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.