Citation Nr: 1760306
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-12 803 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, posttraumatic stress disorder (PTSD) due to military sexual trauma, adjustment disorder, personality disorder, dysthymia and bipolar disorder (psychiatric disability).

REPRESENTATION

Appellant represented by: Dominique Lochridge-Gonzales, Attorney

ATTORNEY FOR THE BOARD

P. Daugherty, Associate Counsel

INTRODUCTION

The Veteran served in the United States Army with active duty from March 2001 to June 2007.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the Veteran’s claim for service connection for an acquired psychiatric disorder, among other things. Jurisdiction of the Veteran’s claims file was subsequently transferred to the RO in St. Petersburg, Florida.

Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), in which the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled, the Board has expanded and recharacterized the Veteran’s claim as an psychiatric disability to include major depressive disorder, PTSD due to military sexual trauma, adjustment disorder, personality disorder, dysthymia and bipolar disorder as reflected by the multiple diagnoses documented in his medical record.

In his April 2014 Substantive Appeal, the Veteran indicated that he wished to have a videoconference hearing before a Veterans Law Judge. However, in a June 2017 written correspondence, the Veteran stated that he wished to withdraw his earlier hearing request. Accordingly, the Board considers the hearing request to be withdrawn. 38 C.F.R. § 20.704(d).

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014).

FINDINGS OF FACT

1. The Veteran’s induction examination does not contain a diagnosis of any acquired psychiatric disability and there is no clear and unmistakable evidence demonstrating that the Veteran had an acquired psychiatric disability prior to service.

2. The Veteran’s acquired psychiatric disorder, variously diagnosed as major depressive disorder, PTSD due to military sexual trauma, and dysthymia, had its onset during service.

CONCLUSION OF LAW

Resolving all doubt in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder, to include major depressive disorder, PTSD due to military sexual trauma, and dysthymia, have been met. 38 U.S.C. §§ 1101, 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

VA has a duty to notify and assist claims in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103(A) (2012); 38 C.F.R. § 3.159 (2017). However, as the Board is granting the claim for service connection an acquired psychiatric disability, no further discussion of the statutory duty to notify the Veteran and to assist him in the development of this claim is necessary.

II. Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection is granted for any disease diagnosed after discharge 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).

Generally, service connection for PTSD requires: (1) medical evidence establishing a clear diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and the in-service stressor. 38 C.F.R. § 3.304(f) (2016). 38 C.F.R. § 4.125 currently requires a diagnosis of PTSD using the criteria in the 5th edition of the Diagnostic and Statistical Manual for Mental Disorders (DSM-5). Where the veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran’s testimony alone is not sufficient to establish the occurrence of the stressor, and it must be corroborated by credible supporting evidence. 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 VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, 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. For purposes of this regulation, “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 explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or any attack upon any friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psych-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3).

When the claimed PTSD stressor is physical or sexual assault in service, 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, mental health counseling centers, hospitals, or physicians; and, statements from family members, roommates, fellow service members or clergy. Evidence of behavior changes following the claimed assault is one type of 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 other sources 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 will 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 has occurred. 38 C.F.R. § 3.304(f)(4). Additionally, a medical opinion may be used to corroborate a personal-assault stressor. Menegassi v. Shinseki, 683 F.3d 1379 (Fed. Cir. 2011).

A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C. § 1111, 1137 (2012). In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The disease or injury must be clearly specified or diagnosed on the induction examination; vague symptoms are not enough to rebut the presumption.

The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007).

In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

Competent lay evidence is 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)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

As an initial matter, the Board notes that the Veteran’s service treatment records and post-service treatment records reflect several diagnoses, to include PTSD, major depressive disorder, and borderline personality disorder. See, post-service treatment records dated September 2017, April 2017, May 2016, January 2008, December 2007; service treatment records dated February 2003, August 2003, August 2004, July 2005.

With respect to an in-service stressor, the Board notes that the Veteran’s report of a military sexual assault while on active duty have been verified and conceded. Therefore, the remaining questioning before the Board is whether the Veteran has an acquired psychiatric disorder, however diagnosed, that is consequent to the in-service sexual assault.

The medical evidence of record shows that the Veteran has a current diagnosis of PTSD and major depressive disorder. See, post-service treatment records dated May 2016, April 2017, and September 2017. Additionally, the Veteran’s VA psychologist, who has been treating the Veteran for his psychiatric symptoms since January 2013, opined that the Veteran’s sexual trauma resulted in the development of his PTSD and that his “depression is also related” to that experience. See, post-service treatment record dated April 2017, May 2016. As this opinion was provided by a psychiatric physician with an extensive history of treating the Veteran, the Board considers it to be highly probative and finds that the evidence is at least in equipoise as to whether or not the Veteran currently has a diagnosis of PTSD that is related to the in-service assault.

The Board notes that VA examiner in October 2012 opined that the Veteran did not meet the criteria for PTSD under the DSM-IV. Instead, the VA examiner diagnosed the Veteran with borderline personality disorder and major depressive disorder. The examiner also noted that it was not possible to differentiate which symptoms were attributable to each diagnosis. See, October 2012 VA examination. While this examiner did take a detailed history from the Veteran, the Board has assigned this opinion with less probative weight than the opinion from the Veteran’s primary psychiatric physician as the VA examiner only interacted with the Veteran on one occasion as opposed to several years.

The Board also notes that in April 2014, a VA medical opinion was rendered with respect to the Veteran’s major depressive disorder following a review of his claims file. The April 2014 examiner did not provide an opinion on PTSD, but stated that the Veteran’s major depressive disorder is “more likely than not a response to psychosocial stressors as opposed to experiences during his military service.” However, the Veteran’s February 2001 induction examination is silent as to any psychiatric disorder. As outlined above, unless there is clear and unmistakable evidence to the contrary, VA must presume that the veteran was in sound condition except as to those defects, infirmities, or disorders noted at the time of entrance into service.

In this case, the Board finds that an acquired psychiatric disability was not noted at service entrance, and therefore, the presumption of soundness applies. There is also no clear and unmistakable evidence that the Veteran was diagnosed with or treated for an acquired psychiatric disorder prior to any period of active duty. While the Veteran may have reported some symptoms of depression and childhood stressors, lay statements by a Veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. Paulson v. Brown, 7 Vet. App. 466 (1995). Accordingly, the Board finds that the Veteran’s acquired psychiatric disability is not clearly a pre-existing condition, and that he is entitled to the presumption of soundness.

Based on the above, the Board has assigned the opinion rendered by the April 2014 VA examiner with low probative value, as the Veteran is entitled to the presumption of soundness and the rationale for the April 2014 medical opinion is based on the presumption that the Veteran experienced psychiatric symptoms prior to his active duty service.

Additionally, the Board notes that because the symptoms of the Veteran’s variously diagnosed psychiatric disabilities cannot be disassociated from each other, a grant of service connection for an acquired psychiatric disorder, to include major depressive disorder, posttraumatic stress disorder due to military sexual trauma, and dysthymia is appropriate in this case. Personality disorders are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes so the grant of service connection for a personality disorder is not warranted. Additionally, the medical evidence reflects the ruling out of diagnoses of an adjustment disorder and bipolar disorders and there is no opinion linking either of these disorders to service. Consequently, the evidence is also against entitlement to service connection for these disorders.

Accordingly, based on the medical evidence of record, the Board finds that service connection for an acquired psychiatric disorder, to include only major depressive disorder, posttraumatic stress disorder due to military sexual trauma, and dysthymia is warranted at this time. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

ORDER

Service connection for an acquired psychiatric disorder, to include major depressive disorder, posttraumatic stress disorder due to military sexual trauma, and dysthymia is granted.

____________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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