POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The Veteran served from August 1992 to September 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2020 rating decision concerning claims for service connection for posttraumatic stress disorder (PTSD) and major depressive disorder. The Veteran contends he has PTSD due to military sexual trauma (MST) and seeks service connection for major depressive disorder, which he believes began in service. The Board reviewed evidence including the Veteran's testimony, service treatment records, VA examination reports, and private medical opinions. The Board denied service connection for PTSD, finding the evidence weighed against a link to an in-service stressor, noting conflicting medical opinions and inconsistencies in the Veteran's reports. The VA examiner opined the Veteran did not have PTSD but rather a personality disorder, and found no other documentation of MST beyond the Veteran's statements. Private opinions were found less probative due to not fully addressing the service treatment records, prior diagnoses, or varying history. The Board granted service connection for major depressive disorder, finding an approximate balance of evidence regarding its in-service onset. The Board resolved reasonable doubt in the Veteran's favor, establishing service connection for major depressive disorder based on in-service complaints and provisional diagnosis, and continued symptoms since service.

Rationale

Preponderance of evidence weighs against PTSD link to in-service stressor; Conflicting medical opinions regarding PTSD and MST; VA examiner found no PTSD, but personality disorder; noted lack of documentation beyond Veteran's statements; Private opinions less probative due to incomplete review of records and history; Veteran's inconsistent reports of suicide attempts and MST; No examiner linked PTSD diagnosis to a credible MST stressor

Full Decision Text

Citation Nr: A21020651
Decision Date: 12/29/21	Archive Date: 12/29/21

DOCKET NO. 200323-77549
DATE: December 29, 2021

ORDER

Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied.

Entitlement to service connection for major depressive disorder is granted. 

FINDING OF FACT

1. The competent evidence of record does not support a finding that the Veteran is diagnosed with PTSD that began during service or is otherwise linked to a verified in-service stressor. 

2. There is a balance of evidence on whether the Veteran's major depressive disorder began during active service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f).

2. The criteria for entitlement to service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1992 to September 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2020 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In the March 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket.

Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a).

In January 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. 

Favorable findings identified in the February 2020 rating decision include that the Veteran had been diagnosed to have a disability and that there was a complaint of the condition in the Veteran's VA treatment records.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.12 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f).

In general, "after-the-fact medical nexus evidence," such as a VA examiner's finding that a claimant's PTSD was caused by the alleged in-service stressor, cannot by itself serve as credible supporting evidence of the claimed in-service stressor. See Moreau v. Brown, 9 Vet. App. at 396. However, there is an exception to this rule in service connection claims for PTSD based on an alleged personal assault. In such cases, the Court held that the "categorical statements" made in Moreau and Cohen that medical nexus evidence cannot by itself fulfill the requirement of "credible supporting evidence" does not apply. See Patton v. West, 12 Vet. App. 272, 279-280 (1999) (holding that in PTSD cases based on personal assault, a VA examiner's finding that the claimant's PTSD is etiologically linked to the alleged in-service stressor can serve as verification that the stressor occurred); VBA Training Letter No. 11-05 (Dec. 2, 2011); see also 38 C.F.R. § 3.304 (f)(5) (providing that VA may submit any evidence it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred).

Furthermore, in PTSD claims based on personal assault, alternative sources of information may be used to corroborate an in-service stressor because official service records may be devoid of evidence of the incident. Many victims of personal
 personal assault, a VA examiner's finding that the claimant's PTSD is etiologically linked to the alleged in-service stressor can serve as verification that the stressor occurred); VBA Training Letter No. 11-05 (Dec. 2, 2011); see also 38 C.F.R. § 3.304 (f)(5) (providing that VA may submit any evidence it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred).

Furthermore, in PTSD claims based on personal assault, alternative sources of information may be used to corroborate an in-service stressor because official service records may be devoid of evidence of the incident. Many victims of personal assault, especially sexual assault and domestic violence do not file official reports either with military or civilian authorities. See Patton v. West, 12 Vet. App. at 278. Accordingly, the regulations governing PTSD provide that where a claim is based on an 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. Evidence of behavior changes following the claimed assault is one type of relevant 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. 38 C.F.R. § 3.304 (f)(5).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b).

1. Entitlement to service connection for PTSD

The Veteran contends that he has PTSD due to military sexual trauma (MST) he experienced in service. 

The Board concludes that, while the Veteran has a current diagnosis of PTSD, as diagnosed by, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of PTSD began during service or is otherwise related to an in-service injury, event, or disease. 

In a November 2019 statement, the Veteran reported that his commander belittled and made fun of him during a deployment, which culminated in continued sexual assault during the deployment. The Veteran indicated in another statement that he requested a transfer, but he believed this request was not documented. There is no indication in the Veteran's personnel records of a transfer request. In connection with his claim, the Veteran reported in service that he attempted suicide due to the sexual assault; however, he did not report any sexual assault during service.

The record contains conflicting medical opinions regarding whether the Veteran's PTSD is at least as likely as not related to an in-service injury, event, or disease, including as due to MST.  

A February 2020 VA examiner opined that the Veteran did not have PTSD, but rather that he appeared to exhibited symptoms of the previously diagnosed (in service) personality disorder rather than another mental health condition, including PTSD. The examiner did not find that the Veteran's record had markers of MST, stating that while the Veteran's reported suicide attempt was noted in the Veteran's service treatment records, there was no other documentation than the Veteran's statements. The examiner noted that the psychiatry report in the service treatment records indicated that the Veteran reported he had always been depressed and had joined the military after losing a job. As such, the examiner concluded that the in-service diagnosis of avoidant personality disorder was indicative of his current condition. The examiner stated that the Veteran often changed the features of his report of MST as well as his reports of suicide attempts, which the examiner believed was part of a pattern related to his personality disorder. Further, the Veteran did not endorse symptoms related to flashbacks, panic attack, avoidance, hypervigilance, or easy startling during the examination, but did endorse them when filling out the military PTSD checklist after the appointment. The examiner concluded that the Veteran did not have PTSD and that the Veteran's spontaneous symptoms fit the previous diagnosis of personality disorder. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The Veteran underwent a private examination in July 2020. The examiner diagnosed the Veteran to have PTSD, as well as
 Further, the Veteran did not endorse symptoms related to flashbacks, panic attack, avoidance, hypervigilance, or easy startling during the examination, but did endorse them when filling out the military PTSD checklist after the appointment. The examiner concluded that the Veteran did not have PTSD and that the Veteran's spontaneous symptoms fit the previous diagnosis of personality disorder. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The Veteran underwent a private examination in July 2020. The examiner diagnosed the Veteran to have PTSD, as well as alcohol use disorder and persistent depressive disorder. The rationale for the PTSD diagnosis was that the Veteran's responses indicated the presence of symptoms in all of the diagnostic categories of PTSD, with significant impairment to his social, occupational, and emotional functioning. The examiner also concluded that the Veteran met the criteria for persistent depressive disorder and noted that the Veteran reported those symptoms had been present since active service and progressed over time. However, the examiner's opinion did not acknowledge the in-service reports of symptoms and diagnosis of personality disorder, or the divergent history he has provided over time.  As such, the Board finds this opinion less probative including as to whether the Veteran's MST stressor can be supported by the examiner's opinion.

The Veteran underwent another private examination in October 2020. The private practitioner opined that the Veteran met the criteria for PTSD, persistent depressive disorder, and alcohol use disorder. The rationale was that the Veteran's history of symptoms and reports indicated that the Veteran's military experiences more likely than not were large contributing factors to his current diagnoses. This opinion is, however, less probative than the VA examiner's opinion, as the examiner did not appear to have considered the Veteran's service treatment records and did not acknowledge the prior diagnosis of a personality disorder, the varying history the Veteran has reported, nor did it set out the actual stressors considered to support the diagnosis of PTSD. Therefore, this opinion cannot be used to support the Veteran's claimed MST stressor. 

In a March 2021 letter, the Veteran's treatment provider stated the Veteran was diagnosed to have PTSD and major depressive disorder, with a history of severe alcohol use disorder. The provider noted that the Veteran had required ongoing adjustments to his medication regimen due to frequent panic attacks, severe night terrors, racing thoughts, and frequent triggering events. She concluded that the Veteran's condition was a direct result of his military experiences. Again, however, the provider did not comment on or provide information indicating that she was aware of the Veteran's prior diagnoses, nor discuss the bases for concluding the claimed stressor occurred. This examination also does not provide an after the fact opinion that can be used to support the occurrence of the Veteran's claimed stressor. 

In a March 2020 statement, the Veteran argued that while he did not disclose the assault during service, he did seek mental health treatment in service but did not disclose the assault due to fear of being reprimanded. He argued that there were other markers of MST that should be considered. Specifically, the Veteran noted that his suicide attempts were due to the MST; however, the Veteran has alternately indicated that his reports of suicide attempts were false and claimed that he misled military doctors with regard to his suicide attempts in order to be discharged. In any case, those attempts are not documented beyond the Veteran's reports. While the Veteran is competent to report having experienced symptoms which may be associated with PTSD, including avoiding others, depression, and anxiety intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of PTSD. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  

Because there is insufficient information to support the occurrence of an in-service stressor as no examiner has linked a diagnosis of PTSD to a credible stressor related to MST, the preponderance of the evidence is against a finding that service connection for PTSD is warranted.

2. Entitlement to service connection for major depressive disorder

The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

July 2020, October 2020 and March 2021 private treatment records show the Veteran has a current diagnosis of major depressive disorder. During service, the Veteran was seen for complaints of depression. Thus, the question becomes whether the current disability
 finding that service connection for PTSD is warranted.

2. Entitlement to service connection for major depressive disorder

The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

July 2020, October 2020 and March 2021 private treatment records show the Veteran has a current diagnosis of major depressive disorder. During service, the Veteran was seen for complaints of depression. Thus, the question becomes whether the current disability is related to service.  

The evidence against the claim includes the February 2020 VA examination that found the Veteran was not diagnosed with a mental disorder. However, the examiner did acknowledge the Veteran's in-service reports of depression. 

The evidence in favor of the claim includes the July 2020 private examination, the October 2020 private examination, the March 2021 letter from the Veteran's private treatment provider, and the Veteran's service treatment records. The Veteran endorsed depression or excessive worry on his 1993 service exit examination and was provisionally diagnosed with depression after seeking help for mood swings and depression while in service. Further, the two private examinations and March 2021 treatment note both indicated that the Veteran was diagnosed to have major depressive disorder, with the October 2020 examiner appearing to conclude it was related to service, in part, on the in-service presence of symptoms similar to those currently manifested.    

(Continued on the next page)

 

A reasonable reading of this analysis is that the onset of the diagnosed illness occurred in service. Given that conclusion and the record showing the Veteran sought mental health treatment during service, combined with the Veteran's reports and testimony that his depression had continued since service, a basis upon which to establish service connection for major depressive disorder is warranted.

Upon review of the record, the Board finds there is at least an approximate balance of evidence on whether the Veteran's current major depressive disorder arose in service.  Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for major depressive disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

 

MICHAEL KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	V. Geer, 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.