BVA1505726: Present Disability, In-Service Stressor

Citation Nr: 1505726 Decision Date: 02/06/15 Archive Date: 02/18/15 DOCKET NO. 09-18 706A

FINDINGS OF FACT

1. The most probative evidence establishes that the Veteran does not have a current diagnosis of PTSD due to alleged in-service sexual assaults, in accordance within the applicable VA regulation. …

CONCLUSIONS OF LAW

1. PTSD was not incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2014). …

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS …

Upon review, in the present case, the Board finds that the most probative medical evidence weighs against a finding that the Veteran has a PTSD diagnosis in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV) as a result of his alleged sexual assault stressors. Overall, the September 2013 VA psychiatric examination in particular was very thorough, supported by explanations, and considered the Veteran’s history and relevant longitudinal complaints. It also considered the lay and buddy statements of record. This VA opinion, supported also by the other evidence listed above, outweighs the findings of the April 2013 private psychological evaluation on the issue of whether the Veteran has a PTSD diagnosis in accordance with DSM-IV from alleged sexual assaults. After an extensive interview and psychological testing, the VA examiner provided greater detail in assessing whether the Veteran met each of the DSM-IV criteria for PTSD than any other private or VA provider. The September 2013 VA psychiatric examiner also pointed out the Veteran’s instances of exaggeration and other inaccuracies. In several instances, the Veteran was prone to exaggeration when testing for PTSD symptomatology.

With regard to lay evidence, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In this regard, the Federal Circuit recently held that “PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify.” Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). Regardless, the Board acknowledges the Veteran is competent to report psychiatric symptoms both during and after service. See 38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377 (discussing that Veteran is competent to report a contemporaneous medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (discussing general competency of a Veteran to report psychiatric symptoms).

That notwithstanding, in the instant case, the Board has found the Veteran’s lay statements are less probative than the post-service medical evidence finding that the Veteran does not meet the DSM-IV criteria for PTSD, based on alleged in-service sexual assaults. The overall evidence of record is not supportive of behavioral changes showing that these assaults actually occurred. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). Moreover, although the Veteran is competent to describe his psychiatric symptoms, by regulation, PTSD is a condition that can only be diagnosed by a medical professional, according to 38 C.F.R. § 3.304(f).

The Veteran has submitted evidence other than in-service medical records to corroborate the occurrence of alleged in-service stressors based on sexual assault, to include medical nexus evidence. However, the Board has weighed the evidence of record to make a determination whether the occurrence of the alleged stressor was sufficiently corroborated, to include evidence of a reported assault and behavior changes in service records, VA opinions, private opinions, lay statements, and VA treatment evidence. In other words, the Board has considered all available evidence relevant to the Veteran’s attempt to corroborate the occurrence of the alleged sexual assault stressors, but has found that insufficient credible, probative evidence that these sexual assaults actually occurred.

Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is service connection for PTSD. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

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