Citation Nr: A25035101 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240321-426851 DATE: April 16, 2025 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and insomnia, is denied. FINDING OF FACT The Veteran does not have a diagnosed acquired psychiatric disorder, to include PTSD, major depressive disorder, and insomnia, that was incurred in or is the result of active-duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1990 to February 1994. The rating decision on appeal was issued in February 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In January 2024, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the claim of entitlement to service connection for PTSD that was most recently addressed in a June 2023 rating decision. In February 2024, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal. In the March 21, 2024, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the February 2024 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. In light of the evidence presented, the Veteran's claim of entitlement to service connection for PTSD has been recharacterized as a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and insomnia. Clemons v. Shinseki, 23 Vet. App. 1 (2009). ? Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 C.F.R. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. 38 C.F.R. § 3.304(f). PTSD related to personal assault falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events which the Veteran alleges. See Patton v. West, 12 Vet. App. 272, 281 (1999). Therefore, under 38 C.F.R. § 3.304(f)(5), a PTSD claim based on 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 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. See 38 C.F.R. § 3.304(f)(5). Additionally, where a claim of service connection for PTSD is predicated on an in-service personal assault, VA has a heightened duty to assist requiring that the Veteran be provided notice of the alternative forms of evidence provided for by 38 C.F.R. § 3.304(f)(5). Additionally, VA requires a diagnosis that conforms to the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition), to compensate for a psychiatric disability. 38 C.F.R. § 4.125. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and insomnia. The Veteran contends that he has posttraumatic stress disorder (PTSD) due military sexual trauma (MST) during service. See October 2019 VA Form 20-0995, Decision Review Request: Supplemental Claim. Specifically, the Veteran contends that while in the service in 1990 he was dragged out of his rack by a group of men on his barge at night, his mouth was covered, arms and legs held down and he was sexually assaulted." See February 2020 VA medical report. The Veteran attempted to report the incident to his superiors, but he was told not to complain and handle it himself; this incident only happened once, and he never told anyone else about it. See id. Pursuant to 38 C.F.R. § 3.304(f)(5), the Board notes the Veteran was notified of his right to provide specific details of his personal trauma incident, however, the Veteran failed to respond. See November 2019 VA Subsequent Development Letter; June 2023 rating decision. In February 2020, VA obtained a medical opinion for the Veteran's claimed PTSD due to MST. The examiner provided a negative nexus opinion, and as rationale stated, "Veteran failed to meet DSM 5 criteria for PTSD, depression, anxiety, insomnia, and any other mental health diagnosis." The examiner noted "after reviewing the available medical records there are no potential markers that indicate possible MST." The examiner went on to note that "Veteran's report of events has been inconsistent and embellished over time. On 2/01/19... 'Pt.reported receiving uninvited touching at night by a male service member who routinely "grabbed" pt.'...on 2/27/19...Veteran's report of MST: 'While in the service, ~19 two males grabbed Veteran, fondled him and punched him while he was sleeping'...When this examiner asked Veteran how many men grabbed him and assaulted him he stated he didn't know how many there was because it was dark." The examiner went on to note that "On two separate occasions Veteran denied any sexual abuse (01/28/11, and 05/18/18). He did not endorse MST until 02/01/19." Additionally, the examiner noted validity testing that assessed the credibility of the Veteran's self-report. The examiner noted the Veteran's score was "significantly above the established cutoff, indicating that his performance was not consistent with persons diagnosed with PTSD, but was consistent with the test performances of disability claimants simulating symptoms of PTSD." During the examination, the Veteran was casually dressed and neatly groomed. His speech, rate, tone and prosody were within normal limits. The examiner noted he maintained good eye contact. The Veteran denied auditory or visual hallucinations and the examiner noted there was no evidence of delusions or disorganized thought process. The examiner noted the Veteran endorsed current suicidal ideation, however he denied any plans or intent. Additionally, the examiner noted the Veteran's affect was normal and his gross cognition appeared intact. The examiner noted the Veteran did not have a diagnosis of PTSD that meets DSM-5 criteria. Additionally, the examiner noted the Veteran does not have a mental disorder that conforms with DSM-5 criteria. Finally, the examiner provided that "it should be noted that although [the Veteran] was diagnosed with PTSD and MDD, these diagnoses were based on Veteran's self-report, which appears to be non-credible." The examiner's medical findings were based on her full consideration of all pertinent medical records and are supported with complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board assigns significant probative weight to the February 2020 medical opinion. In January 2024, the Veteran submitted the November 2023 private disability benefits questionnaire (DBQ) of Dr. O.O. who diagnosed the Veteran with "Posttraumatic Stress Disorder, Chronic type; Major Depressive disorder, Recurrent, Moderate; and Unsomnia [sic], Unspecified," and found the Veteran met the criteria for DSM-5. Dr. O.O. noted "patient [has] history of traumatic event while in the military and [has] been having recurrent features of PTSD relating to the traumas; He is currently in treatment for PTSD but is still symptomatic." Dr. O.O. noted the Veteran had the following symptoms: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty adapting to stressful circumstances, including work or a work like setting. Dr. O.O. noted the Veteran was recently having anger and outbursts in general. However, Dr. O.O. did not list any behavioral observations for the Veteran, nor did Dr. O.O. provide any support for his diagnosis of PTSD, major depressive disorder, or insomnia. Accordingly, the opinion is inadequate because it provides no rationale that the Veteran's PTSD, major depressive disorder, and insomnia are due to his service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating that most of the probative value of a medical opinion comes from its reasoning). Additionally, it is unclear what information the opinion is based upon, as Dr. O.O. did not provide any analysis and only noted the Veteran's Dallas VA medical records were reviewed. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (failure of the physician to provide a basis for his opinion goes to the weight or credibility). Furthermore, Dr. O.O. did not indicate what the Veteran's claimed in-service stressors were to support the link between them and the Veteran's current symptoms. Accordingly, the report of Dr. O.O. is of no probative value. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability there can be no valid claim. While the Board recognizes the Veteran's general contentions that he has an acquired psychiatric disorder, to include PTSD, major depressive disorder, and insomnia, the record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to diagnose such disabilities. As the persuasive weight of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, major depressive ? disorder and insomnia, the "benefit of the doubt" doctrine is not applicable, and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. C. WILSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Griggs 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.