Citation Nr: 22017649 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-14 024 DATE: March 25, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), to include as due to military sexual trauma (MST), is denied. FINDINGS OF FACT 1. The Veteran's in-service stressor is uncorroborated, and therefore the evidence persuasively weighs against a finding that the Veteran has PTSD related to his military service. 2. The probative medical opinion evidence weighs against a finding that any currently diagnosed acquired psychiatric disorder was incurred in or caused by the Veteran's active-duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, to include as due to MST, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 1972 to July 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. The Board previously remanded this claim in April 2020 and September 2021 for additional development. As the actions specified in the remand have been substantially completed, this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, to include as due to MST As an initial matter, the Board notes that, although the Veteran claimed entitlement to service connection for PTSD alone, the medical evidence of record indicates that the Veteran has current diagnoses of PTSD, unspecified trauma disorder and a persistent depressive disorder. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a psychiatric disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In light of the holding in Clemons, the Board has expanded the scope of the Veteran's service connection claim to include all currently diagnosed acquired psychiatric disorders. Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD requires specific findings. These are: (1) a current medical diagnosis of PTSD; (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). A diagnosis of PTSD must comply with the criteria set forth in the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Id.; 38 C.F.R. § 4.125(a). 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. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to, the following: 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. Id. Evidence of behavioral changes following the claimed assault is also relevant evidence that may be found in the mentioned sources. Id. Examples of behavior changes that may constitute credible evidence of a stressor include, but are not limited to, the following: a request for a transfer to another 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 question of whether a Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on recon., 1 Vet. App. 406, 407 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). When the evidence is evenly balanced or approximately so with regard to whether service connection is warranted, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). To deny a claim on its merits, the evidence must persuasively weigh against the claim. Id.) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The question before the Board is whether the Veteran's acquired psychiatric disorder is etiologically related to his active-duty service. Based on a careful review of all the subjective and clinical evidence, the Board finds that the evidence persuasively weighs against finding service connection for an acquired psychiatric disorder, to include PTSD, is warranted. As noted above, the Board notes that different regulations apply to claims for service connection for PTSD than apply to claims for service connection for other psychiatric conditions. Compare 38 C.F.R. § 3.304 with 38 C.F.R. § 3.303. As such, the Board will address the Veteran's claim for service connection for PTSD first, followed by claims for service connection for other diagnosed psychiatric disabilities other than PTSD. Turning to the relevant evidence, the Veteran contends that he has PTSD as a result of military sexual trauma (MST) that occurred during active-duty service. In several statements to VA, the Veteran has recounted that he was sexually assaulted in 1972 while stationed in Germany by a cook whose barracks he went to after meeting at a party. The Veteran stated that he does not know if he passed or went to sleep, but when he awoke, the cook was trying to take the Veteran's clothes off. A fight ensued between the two and the cook threw the Veteran out the window. The altercation continued outside injuring both the Veteran and the cook. The Board has reviewed the Veteran's service treatment records, to include his October 1971 enlistment and May 1973 separation examinations and further denied a history of nervous trouble, trouble sleeping, depression, excessive worry, or any other psychiatric condition and no psychiatric abnormalities were found on clinical evaluation upon separation. Moreover, the service treatment records do not show that the Veteran was ever treated for any psychiatric complaints or symptoms during service. The Board further reviewed the Veteran's personnel file did not reveal any line of duty investigations or other evidence of this event. Furthermore, VA has not been able to verify the Veteran's reported stressor. As indicated in the May 2018 memorandum, VA attempted to corroborate the Veteran's reported in-service stressor by requesting any hospital records from a physical assault from Newulm, Germany Hospital occurring in December 1972, and was unable to do so. The Veteran underwent a VA mental disorders examination in April 2021. Upon examination, the Veteran described his in-service stressor of being sexually assaulted by the cook. The VA examiner concluded that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5) criteria due to not having any persistent alterations in cognition and mood following the trauma. Additionally, the Veteran denied ever having any occupational or social impairment due to depression and/or anxiety. Further, the Veteran denied having any triggers associated to African American men aside from a singular encounter the Veteran reported on examination after leaving service, but the examiner noted he worked side by side with another African American man for years without experiencing an adverse response. Finally, although the Veteran reported an MST trauma with recurrent nightmares every year around the same time and an avoidance of talking about what happened, he did not meet criteria for persistent negative alterations in cognition or mood as he denied any social withdrawal, impairment, or significant symptoms of depression, guilt, shame, or anger until his recent losses of close family and friends that have triggered depression. With regard to the reported MST, the examiner noted several inconsistencies in the Veteran's reports of the incident as well as the Veteran's own reported response to it. Moreover, she noted that the service treatment records, and personnel records are silent as to any behavioral markers of MST. Based on the above, the Board concludes that the April 2021 VA examiner's opinion provides the most persuasive evidence regarding the Veteran's current diagnoses. On that basis, the Board finds the VA opinions are based on a review of the relevant medical evidence, took into consideration the Veteran's lay reports, and conducted, or relied on, a clinical evaluation and testing. Accordingly, the Board finds that the Veteran does not have a current diagnosis for PTSD. In reaching this conclusion, the Board would like to acknowledge the August 2020 VA treatment record in which a VA psychiatrist noted that the Veteran has a diagnosis of PTSD based on military sexual trauma, though she did not elaborate further. However, the diagnosis of PTSD noted in the August 2020 opinion is based on the Veteran's unsubstantiated reported history, it is based on an inaccurate factual premise and has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board emphasizes that the Veteran's unverified and unsubstantiated stressor statements provided to the VA psychiatrist alone, cannot establish the occurrence of a noncombat stressor. A bare conclusion, even one reached by a health care professional, is not considered to be probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998). However, regardless of the presence of a diagnosis of PTSD, there is no competent and credible evidence of an in-service stressor for the purposes of service-connection for PTSD. The claimed in-service stressor has not been verified or corroborated by service records or other credible supporting evidence. Based on the foregoing, the evidence weighs against a finding that the Veteran's claimed in-service stressor occurred for the purposes of establishing service connection for PTSD. 38 C.F.R. § 3.304(f). As there is no credible evidence in the record that supports corroboration of the Veteran's in-service stressor, the Veteran's claim for service connection for PTSD is not warranted. As the evidence persuasively weighs against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. With regard to whether the Veteran is entitled to service connection for a psychiatric disorder other than PTSD, the Board concludes that service connection is not warranted because the evidence persuasively weighs against the claim. Treatment records during the period on appeal repeatedly reflect diagnoses of unspecified trauma disorder and a persistent depressive disorder. As such, an acquired psychiatric disability other than PTSD has been shown during the appellate period, and therefore the first element of service connection has been met. However, there is no competent and credible evidence of an in-service injury or disease. As discussed above with respect to the PTSD claim, in support of his claim the Veteran has submitted the stressor statement outlined above of being sexually assaulted by a cook while stationed in Germany. However, these accounts are not corroborated by the Veteran's personnel and service treatment records, nor are they are otherwise corroborated by the objective evidence of record, and thus the evidence persuasively weighs against a finding that the Veteran's reported stressor occurred during service. The Veteran underwent a VA mental disorders examination in April 2021 to determine the nature and etiology of any diagnosed acquired psychiatric disorders. On examination, the examiner confirmed diagnoses of unspecified trauma disorder and a persistent depressive disorder. The examiner stated that the Veteran's unspecified trauma disorder is at least as likely as was related to service, as no military sexual trauma markers can be identified. However, as this opinion was inherently contradictory, a remand was requested for the examiner to provide clarification. Pursuant to the September 2021 Board remand, the RO VA obtained a medical opinion concerning the etiology of the Veteran's other acquired psychiatric disorders in October 2021. The Board's September 2021 remand instructed a VA examiner to describe all the diagnoses of record related to the Veteran's acquired psychiatric disorder, and to opine for each disorder if the evidence persuasively in favor of finding that the diagnosed psychiatric disorder was etiologically related to the Veteran's active-duty service, to include the Veteran's report of military sexual trauma. Pursuant to these instructions, in an October 2021 opinion, the VA examiner opined that the claimed psychiatric conditions were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner concluded that there was no evidentiary support of the MST occurring in service, although the Veteran stated that he had filed a report a few days after the incident and was told that the man who assaulted him had done this to others. The Veteran stated that these reports got lost in a fire. The examiner further noted that the Veteran stated he never knew the man's name, but he was a cook and he never returned after the incident. There is inconsistency with the Veteran stating he reported the MST right after the event. The examiner further opined that the Veteran's acquired psychiatric diagnoses are more likely to be related to the recent deaths of a number of close friends and family members, including his mother and girlfriend, that has reached beyond typical bereavement. There is no evidence that the above examiner was either not competent or credible. The opinion is supported by a well-reasoned rationale which discussed the Veteran's reported history, identified another more likely cause for the Veteran's diagnosed conditions, and directly cited to medical evidence of record. As such, the Board finds that the opinion is entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also finds it significant that neither the Veteran nor his representative have presented or identified any contrary medical evidence or opinion to provide support for the claim for service connection for an acquired psychiatric disorder. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991) The Board has considered the Veteran's lay statements regarding his in-service stressor. The Board acknowledges the Veteran's report that he has suffered from bouts of hypervigilance, trouble sleeping, anxiety and depressed mood since his active-duty service. The Veteran is competent to report his history of psychiatric problems. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran has not presented any competent and credible evidence to support his assertions that any acquired psychiatric disorder is related to his active-duty service. Moreover, the Veteran has not demonstrated that he has any specialized knowledge or training to provide such a medically complex etiological opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the Veteran's lay assertions regarding the etiology of his acquired psychiatric disorder have little probative value. Based on the foregoing and after careful review of the subjective and clinical evidence of record, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for an acquired psychiatric disorder, to include PTSD, due to MST, is warranted. Rather, the evidence persuasively weighs against such a finding. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.