Citation Nr: 22010524 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 14-43 348 DATE: February 23, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) due to military sexual trauma (MST) is denied. FINDING OF FACT The Veteran does not have PTSD; the Veteran's acquired psychiatric disorder was not incurred in or caused by active service, to include the claimed in-service MST. CONCLUSION OF LAW The criteria for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 3.304(f), 4.125(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served had active-duty service with the Army from November 1979 to December 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico. The issue of entitlement to service connection for PTSD, depression, and anxiety has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety in accordance with Clemons v. Shinseki, 23 Vet. App.1 (2009). The Board remanded this appeal in May 2018, March 2021, July 2021 and September 2021 for additional development. Duty to Assist VA must notify the claimant of any information, including any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has satisfied its duties to inform the Veteran in this case. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 21.1032 (a). The duty to notify was satisfied by the Rating Decision Narrative dated July 2014. See also November 2014 Statement of the Case, December 2020 Supplemental Statement of the Case (SSOC), June 2021 SSOC, August 2021 SSOC and November 2021 SSOC. VA's duty to assist functions to aid a claimant in obtaining evidence necessary to substantiate a claim, but VA is not required to provide assistance to a claimant when there is no reasonable possibility that assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A (2012). As for VA's assistance to the Veteran, the VA notified the Veteran of the Veteran Claim Assistance Act and its Duty to Assist in September 2013 and June 2014. The entire record was available to the July 2016, September 2020, May 2021, July 2021 and November 2021 VA examiners, and testing was sufficient to adequately address all potential rating criteria. See 38 U.S.C. § 7104 (d)(1); 38 C.F.R. §§ 3.385, 4.87. Any defects in the VA examinations were cured by each successive examination. The Board finds that VA has done everything reasonably possible under 38 C.F.R. § 21.1032 (a) to assist the Veteran. The appellant has not identified any available, outstanding records that are relevant to the claim decided herein, nor is there an indication that any outstanding evidence, relevant to the claim, needs to be obtained. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2017). Further development and further assistance by VA are not warranted. The RO's efforts have substantially complied with the instructions contained in the May 2018, March 2021, July 2021 and September 2021 Board remands. See Stegall v. West, 11 Vet. App. 268 (1998). An additional remand for further development of this claim would serve no useful purpose. Accordingly, the Board finds that no prejudice to the appellant will result from the adjudication of her claim in this Board decision. Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD specifically requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders criteria, 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 causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Id. 1. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) due to military sexual trauma (MST) The Veteran contends that she has an acquired psychiatric disorder due to her active service, to include a military sexual trauma (MST). The Veteran has submitted lay statements contending that she experienced a stressor involving military sexual trauma (MST) during her military service in 1980. Multiple VA examiners have found that the Veteran has a diagnosis of generalized anxiety disorder (GAD). See e.g. May, July and November 2021 VA Examinations. Thus, the question is this case is whether the Veteran's acquired psychiatric disorder is related to her active service. The Veteran's service treatment records (STRs) are silent for any psychiatric disorders. The Veteran documented on her entrance examination difficulties with sleeping prior to entrance but noted that it was not a problem for her at that time. See July 1979 Report of Medical Examination. Post-service treatment records document the Veteran began seeking mental health treatment in February 2004 where the Veteran complained of recurrent anxiety and insomnia for the past month. She detailed that she was under too much stress at work and anxiety is interfering with life and family problems with divorce and taking care of her child without help. In a July 2016 VA examination, the examiner found the Veteran did not meet the diagnostic criteria for PTSD but found the Veteran to have an unspecified anxiety disorder. The examiner found no link between the Veteran's acquired psychiatric disorder and her asserted stressor, referring to a March 2004 psychiatric evaluation that found job and family-related stressors as the source of the Veteran's mental symptoms. In a September 2020 VA examination, the examiner stated that the Veteran did not mention any assault in the military until her 2016 examination. The examiner found that the Veteran "does not have most of the MST markers besides her children saying that [the Veteran] has been claiming about the attempted rape more and more, especially as she has gotten older." The examiner concluded that "with no formal evidence, it is not possible to link [the Veteran's] current mental health illness to her time in the service without speculation." In a May 2021 VA examination, the examiner gave a negative opinion and stated that they were unable to locate mental health records or reported mental health symptoms in the service record. In a July 2021 addendum opinion, the examiner reported that the Veteran met only one MST marker and that there were no other MST markers in the claims record; the examiner did not clarify as to what evidence consisted the one MST marker found. The Board remanded the claim for an addendum opinion to provide an adequate opinion to address whether the Veteran meets any markers for MST. In a July 2021 VA examination, the examiner found that the Veteran's lay statements alone met the criterion for a single MST marker but that her previous VA examinations and therapy records were inconsistent. The examiner agreed with previous findings that the Veteran met the criteria for an unspecified anxiety disorder and was being treated for the disorder. The examiner found that the Veteran's disorder was less likely than not due to service. By way of rationale, the examiner found no reports or symptoms during or soon after service, conflicting reports of stressors and an inability to find in favor of the Veteran without sufficient evidence demonstrating a link. Based upon the evidence of record, including the Veteran's reports, examiners indicated that the Veteran did not have a diagnosis of PTSD that conforms to the DSM-5 criteria; however, the examiner indicated that she did have generalized anxiety disorder, but this was considered less likely than not related to the reported MST. The examiners have reasoned that either few or no markers to substantiate the report of MST could be located; her reports of depression and anxiety were considered related to current life stressors. Furthermore, there was no evidence of mental health problems while she was in the military. Though the Veteran has received a diagnosis for an acquired psychiatric disorder, after a review of the available evidence, the Board finds that service connection is not warranted for an acquired psychiatric disorder. There is no evidence that a psychiatric disorder was present during the Veteran's period of active duty or manifested to a compensable degree within one year of separation. Even assuming that the Veteran did in fact experience an in-service MST or other traumatic event, the Veteran does not claim that she received a diagnosis or treatment for a psychiatric disorder during active service and her separation examination revealed a normal psychiatric evaluation. Though the Veteran has stated she received mental health treatment shortly after service, VA has attempted to assist the Veteran in obtaining these records to no avail. The earliest evidence of psychiatric treatment was in February 2004, where the Veteran complained of anxiety and insomnia due to stress at work and family problems. The next evidence was nearly a decade later when the Veteran presented to the emergency room and was admitted for psychiatric concerns. She reported a house fire in December 2012 while she and her son were sleeping, and not getting a retirement after she quit her job. Multiple mental health treatment notes in the following year documented stressors much the same as those reported in June 2013 and in a July 2013 mental health treatment note, the Veteran denied experiencing MST in the past. These records persuasively show that other factors unrelated to service were associated with her mental health crises Based on the foregoing, the Board finds that there is no confirmed diagnosis of PTSD, nor any probative opinion of record indicating that the Veteran otherwise has an acquired psychiatric disorder that is related to her active service, to include her reported MST. Therefore, the Board finds that the weight of the evidence is against the claim for service connection for an acquired psychiatric disorder, to include PTSD and anxiety. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Supra, Gilbert. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.