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Example Of Va Using Childhood Evidence Against Mh Claims
Posted 13 July 2009 - 05:21 PM
of the how's and why's VBA can and will use information
concerning your childhood experiences, against a claim for
service connection of mental health disabilities.
I - in no way,am stating I agree or disagree with this process and/or the
outcome of this individual claim.
I post it only for example to help veterans understand another part
of what evidence,decision makers weigh during the claims process.
Service connection means that the facts establish that a
particular injury or disease resulting in disability was
incurred in the line of duty in the active military service
or, if pre-existing such service, was aggravated during
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). This may
be shown by affirmative evidence showing inception or
aggravation during service or through statutory presumptions.
Id. When a disease is first diagnosed after service, service
connection can still be granted for that condition if the
evidence shows it was incurred in service. 38 C.F.R.
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) and 38 C.F.R. § 4.125 (2006)
(requiring PTSD diagnoses to conform to the criteria in the
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th
ed. 1994) (DSM-IV)).
The Veteran alleges he was raped by a male nurse while in the
military seeking treatment for an injured ankle. The Veteran
admits that he never formally reported the MST and, in fact,
had no memory of the incident until his memory was triggered
by a VA medical questionnaire he filled out sometime in 2004,
nearly three decades after service. Accordingly, there is no
objective verification of the assault.
The Board finds noteworthy that the Veteran testified before
the Board in July 2007 that the male nurse, Specialist P., is
currently a convicted sexual predator. No such documentation
is currently of record.
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. 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. 38
C.F.R. § 3.304(f)(3).
Additionally, evidence of behavior changes following the
claimed assault is relevant evidence that may be found in the
mentioned sources. Examples of behavior changes that may
constitute credible evidence of a 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. Id.
In this case, the Veteran alleges he was an exemplary soldier
prior to the incident, allegedly occurring in February 1978.
After the incident, the Veteran alleges his attitude turned
"sour" and he was ultimately dishonorably discharged a few
short months later.
The Veteran's personnel records confirm the Veteran was
discharged "under honorable conditions" for "failure to
maintain acceptable standards for retention." The Veteran
was originally enlisted to serve through 1980, but received
disciplinary action for going AWOL in May 1978 and was
discharged shortly thereafter for, among other reasons, a
The notion that the Veteran's problems were limited in time
to after the February 1978 incident, however, is simply not
credible. That is, prior to entering the military, the
Veteran's personnel records note the Veteran had a troubled
childhood. He was charged with "purse snatching" at the
age of 15 and admitted to experimenting with marijuana and
alcohol. The Veteran, at the time of enlistment, was in a
foster home because of familial alcohol problems as well as
As will be explained more thoroughly below, the claim is
further complicated because for decades the Veteran alleged a
close family member sexually abused him as a child. He later
alleged he was mistaken and now has full memory of the 1978
military sexual abuse by the male nurse.
The first pertinent inquiry is whether psychiatric problems
were shown in service. The Board concludes they were not.
The Veteran's service treatment records indicate the Veteran
had psychiatric consultations in February 1977 and again in
April 1978, which were normal but noted a history of
psychiatric care predating the military.
The service treatment records also confirm on February 19, 1978,
Specialist P. called for an ambulance on behalf of the
Veteran for a possible fractured ankle. The records indicate
that prior to that time, Specialist P. had treated the
Veteran for other, unrelated conditions. The Veteran's May
1978 separation examination indicated no abnormalities. The
alleged MST is not confirmed by the service treatment
records. In short, the service treatment records are devoid
of any findings consistent with the alleged rape or any
Even if a chronic condition was not shown during service,
service connection may be established under 38 C.F.R. §
3.303(b) by evidence of continuity of symptomatology or under
38 C.F.R. § 3.303(d) if the evidence shows a disease first
diagnosed after service was incurred in service. The
pertinent inquiry then is whether the Veteran has a current
diagnosis of PTSD attributed to a verified in-service
incident. The Board concludes, based on the evidence, he
After service, the medical records indicate extensive
treatment for various psychiatric conditions as early as the
1990s, over twenty years after service. At that time, the
Veteran was diagnosed with bipolar disorder, depression and
poly-substance abuse. The Veteran was also hospitalized
multiple times for various suicide attempts. In 2002, the
Veteran was diagnosed with PTSD.
At that time, the Veteran's PTSD was attributed by both private and VA physicians to his
other health conditions and a serious work-related injury.
Due to the injury, the Veteran filed for worker's
compensation, which according to medical professionals at the
time, deepened his depression.
As indicated above, this claim is further complicated because
prior to 2004, psychiatric treatment records indicate the
Veteran was sexually abused by a family member (his father).
Although there is no formal confirmation of the sexual abuse,
there is paperwork and medical records confirming the Veteran
was placed in foster care as a child due to familial alcohol
addiction and child abuse.
The Veteran also clearly had a troubled youth, evidenced by his petty theft charges, alcohol
and poly-drug abuse at a very early age. All of these events
are evidenced in the record and predate his military service.
In October 2004, the Veteran alleges his memory was refreshed
by a VA health questionnaire asking if he had ever been
sexually assaulted. The Veteran alleges at that moment he
first recalled the events in the military. He believes the
military nurse drugged him for the ankle pain prior to the
rape, which is why he had no memory of the event for years.
The Veteran now claims he was mistaken about accusing a close
family member of sexual abuse and believes the military event
is really the source of his current PTSD.
VA outpatient treatment records from October 2004 confirm the
Veteran for the first time "recalled" in-service sexual
assault. As indicated above, however, the diagnosis PTSD is
noted in his medical records since 2002, two years prior to
the Veteran's "revelation." The diagnosis, moreover, was
attributed to the Veteran's other health conditions and his
serious work-related injury. It is also evident from the
decades' worth of medical records that the Veteran has a
lengthy psychiatric treatment history of bipolar disorder and
poly-drug abuse. Within those decades worth of psychiatric
treatment, medical professionals consistently note the
Veteran's history of child abuse and poly-drug abuse, but are
silent as to any military-related incident responsible for
any psychiatric diagnoses.
The Veteran was afforded a VA examination in July 2005 where
the examiner diagnosed the Veteran with PTSD, bipolar
disorder, poly-substance abuse and personality disorder. The
examiner attributed the Veteran's PTSD to his self-reported
in-service sexual assault, but did not comment on the
Veteran's prior allegation that a close family member
sexually assaulted him. Other than noting the Veteran's
childhood alcohol abuse, it is unclear if the examiner was
aware of the Veteran's relevant childhood social and
psychiatric history. Based on the likelihood the examiner's
opinion was based on incomplete facts, the Board finds the
opinion not probative. See Reonal v. Brown, 5 Vet. App. 458,
460-61 (1993) (A medical opinion based on incorrect factual
premise is not probative).
Even if probative, however, the Veteran's diagnosis must be
attributed to a verified stressor, which is not the case
here. That is, the July 2005 examination as well as other VA
outpatient treatment records provides medical evidence of a
current, competent medical diagnosis of PTSD. The diagnosis,
however, must be attributed to a verified in-service
stressor. Regrettably, the Board concludes the preponderance
of the evidence simply does not verify the alleged MST
That is, the Veteran's first diagnosis of PTSD predates the
Veteran's recollection of the alleged MST by two years. The
Veteran alleges he was an exemplary soldier prior to February
1978, but his personnel records and pre-service records cut
against such a theory. Indeed, it is indisputably evident
the Veteran had disciplinary and legal problems prior to
entering the service. Also compelling, the Veteran alleged a
close family member sexually abused him for decades prior to
alleging MST. The Veteran was placed in foster care, again
prior to entering the military, due to alcohol and child
abuse. It is also well-documented the Veteran's poly-
substance abuse began while he was a child. Also noteworthy,
the Veteran is currently receiving Social Security
Administration (SSA) disability benefits based, in part, to
psychiatric treatment records indicative of his troubled
The Board does not doubt that the Veteran believes he was a
victim of MST. As indicated above, the Veteran is not,
however, competent to diagnose any medical disorder or render
an opinion as to the cause or etiology of any current
disorder because he does not have the requisite medical
knowledge or training. See Rucker, 10 Vet. App. at 74.
Regrettably, the most probative and competent evidence simply
does not support a finding the Veteran's current PTSD is
related to the alleged MST. The most probative and competent
evidence, moreover, simply does not verify the MST.
In summary, the Board finds that the preponderance of the
evidence of record does not show that the Veteran has PTSD
related to alleged MST and, therefore, service-connection is
not warranted. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000); see also, Hickson, supra. In light of the foregoing,
the Board finds that the preponderance of the evidence is
against the claim, and the benefit of the doubt doctrine is
not for application. See generally Gilbert v. Derwinski, 1
Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed
Entitlement to service connection for PTSD, claimed as
secondary to MST, is denied
Posted 13 July 2009 - 08:37 PM
Posted 14 July 2009 - 08:09 AM
Posted 14 July 2009 - 11:31 AM
Posted 24 July 2009 - 07:35 AM
I have overwhelming evidence that points toward severe memory impairment on a neuropsychological exam given after the in service injury.
I have evidence of a traumatic brain injury on 2 different occasions in service. But go figure VA is going to try to use this as an out.
I am really not sure what they did. I got rated at 40%, so the gave me the service connection at a reduced rating is the best I can figure. I am in the process of getting an IMO to correct all of this. So I would recommend to everyone to be careful of this sort of problem. I have about 200-250 pages(hold your thumb and pointer finger far apart) of medical records in my claim and they found a single page that referenced this learning disability from 17 years ago.
I will be able to overcome this, just more of a fight and involvement of lawyers and doctors then I anticipated.
Posted 24 July 2009 - 08:57 AM
If you tell them you experimented with drugs as a teenager you get a personality disorder diagnosis, regardless of what happend in the military. I told them I got kicked out of school for three days for getting into a fight in junior high and they said I had anti-social personality. They were asking leading questions, and I was young and did not know they were laying a trap. I have never been in any kind of trouble with the law, and have a college degree, but there it is from the VA. It took a few IMO's to kill that anti-social PD VA creation. They just put that on you with no real proof, and it stays with you like a stain.