Citation Nr: 0125178 Decision Date: 10/24/01 Archive Date: 10/29/01 DOCKET NO. 00-14 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Non Commissioned Officers Association of the U.S.A. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. A. Seaman, Associate Counsel INTRODUCTION The veteran served on active duty from August 1969 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the veteran's claims of service connection for PTSD with depressive disorder. In July 2001, the veteran appeared for a personal hearing before the undersigned Member of the Board. A transcript of the hearing is of record. FINDINGS OF FACT 1. The veteran has provided credible statements regarding stressful events she experienced during her military service. 2. Mental health professionals and private physicians have diagnosed PTSD and depressive disorder, and have related the veteran's PTSD and depression to the alleged in-service stressful events. 3. The veteran's PTSD and depressive disorder cannot be reasonably dissociated from the stressful events she experienced in service. CONCLUSION OF LAW The veteran's PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.304(f) (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background Essentially, the veteran contends that her PTSD is due to in- service stressors she experienced during her service as a specialist responsible for maintaining nuclear weapons. Service personnel records reflect that she served on active duty in Germany for 10 years and 2 months. The DD Form 214 shows that she served as a Nuclear Weapons Maintenance Specialist for 16 years and 4 months, and as an Ammunition Specialist for 12 years and 11 months. For the sake of clarity regarding gender distinctions that appear in the record and in this decision, it should be noted that the claims file indicates that the veteran underwent a transsexual or sex change operation, from male to female, soon after she separated from service in January 1986. The service medical records include a November 1968 pre- induction medical examination report which is negative for showing that the veteran had a mental disorder prior to her entry onto active duty. On a pre-induction report of her medical history dated in May 1969, the veteran stated that her health was excellent. She did not report any mental disorder that might have existed prior to her service. The service medical records also include an August 1978 psychiatric examination report, showing that the veteran was applying for a compassionate change of orders to avoid being transferred overseas. Mental status evaluation revealed that the veteran's speech was lucid and coherent, although a little rapid. She appeared preoccupied with remaining in the United States. Her affect was normal, and there was no evidence of hallucinations, delusions, or unusual thinking. She was oriented in all spheres, and her memory and sensorium were good. The diagnosis was adult situational reaction, but there was no description of the cause of the diagnosed disorder. On a report of medical history furnished during a May 1980 physical examination, the veteran stated that she felt in "reasonably good health," but she answered affirmatively when asked if she had experienced depression or excessive worry. She described that she saw a mental health care provider in 1978 who diagnosed adult situational reaction. The service examiner noted that the veteran had been depressed since December 1979 due to concerns over a spouse's health. For the sake of background, the Board notes that the service medical records also indicate that, between April 1975 and January 1979, the veteran was examined on several occasions for possible exposure to ionizing radiation. An April 1975 clinic report shows a diagnosis of radiation exposure, "probably minimal exposure." In a September 1978 record, an examiner wrote that "[h]istorically I have determined that [the veteran] has received an unknown amount of radiation." The impression at that time was possible significant exposure. In an October 1978 report, it was noted that she underwent testing for radiation exposure, but that radioactivity was not seen other than "naturally occurring," as it was "at a level commonly seen in most subjects measured in the last six months and presumably results from atmospheric weapons testing." Post-service medical records include medical reports furnished by a private mental health center, dated from February to May 1992. A February 1992 intake interview summarized initial screenings at the facility, and noted that the veteran had PTSD symptoms including flashbacks and dreams, avoidance of associated stimuli, and possible psychogenic amnesia. She also had symptoms of depression, including social withdrawal, low energy, poor concentration, dysphoria, and sleep disturbances. The examining therapist noted that the veteran described a great deal of her personal history, which included a history of domestic physical abuse by her father which began during her childhood. The therapist reported that some the flashbacks concerned her years of service as a nuclear technician. She also described nightmares of mass destruction due to nuclear forces, and of military operations where she would end up in a stand-off with German soldiers. Assessment of her avoidance to trauma revealed avoidance of thoughts and feelings, attachment to others, restricted range of affect, and a sense of no future. Also assessed were symptoms of increase arousal, including outbursts of anger, difficulty concentrating, hyper- vigilance, and exaggerated startle responses. The Axis I diagnosis (under DSM-III) was PTSD, and the Axis II diagnosis was borderline personality disorder. Of record is an October 1995 comprehensive psychological evaluation, conducted pursuant to the veteran's application for disability benefits from the Social Security Administration (SSA). The veteran recounted her in-service experiences for two mental health examiners. She stated that she experienced horrible dreams about her military experience, and that she killed people and had ordered others killed. She reported that she did "horrendous stuff" while on active duty. She also noted that she was estranged from her parents and siblings, and she outlined the alleged physical abuse by her father during her childhood. She complained of chronic anxiety with panic attacks. The Axis I diagnosis (under DSM-IV) was anxiety disorder, not otherwise specified, and panic disorder without agoraphobia. The Axis II diagnosis was personality disorder, not otherwise specified. Also of record is a November 1996 deposition transcript of testimony given by the veteran's private licensed psychologist, relating to the veteran's claim for SSA benefits. In essence, the psychologist explained that the veteran had been diagnosed with PTSD, delayed onset; panic disorder without agoraphobia; and major depression episode, severe and recurrent. The psychologist also outlined the symptoms the veteran exhibited due to her psychological disorders. He further testified that the veteran's psychological disorders stemmed from her military service, and from the physical and emotional abuse inflicted by her father when she was a child. The psychologist reported that the veteran had recurrent and intrusive recollections related to the stressors, that were prominent not only when she was awake (sometimes in the form of flashbacks), but were also prominent in the form of distressing dreams. When questioned about the veteran's military service and its relationship to her psychological disorders, the psychologist testified: Before having left [the military] . . . [the veteran] reports beginning of a breakdown in her ability to perform her job in that she became more and more anxious about that. She said that there were many situations while in the military where she had to confront death or the possibility of death in many situations, including while she was standing as a leader of her squad. This caused her extreme emotional turmoil, and while she was telling me this, she was quite tearful at the taught [sic] of having to shoot innocent civilians, woman and children; it was extremely difficult for her. She reported that she, due to her own duties . . . and responsibilities . . . had to continually confront orders or deal with order[s] of nuclear stand- readiness. And in certain times that there were times when they were just one order away from firing nuclear weapons. She had to be trained in counter terroristic activities, and that included various manners of hurting other people, interrogation people, and finding ways of getting them to tell what data that they had, under coercion. These ideas and beliefs have lead her to become more and more involved in violent rumination in her own mind . . . and continue to plague her thought processes . . . . In an April 1999 letter, the veteran's private psychologist reported that he had followed the veteran since September 1996 "to help her alleviate psychological pain and problems associated with her sixteen years of service in the US Army." It was noted that the veteran had complained of chronic sleep problems, including violent dreams, intrusive and obsessive thoughts regarding the possibility of physical attack and violent military scenarios, depression, appetite disturbances, loss of self-efficacy, loss of ability to deal with any work-related stress, and social isolation. Regarding the stressors described by the veteran, the psychologist noted that they were concurrent with the nature of their traumatic meaning for the veteran because she was anxious, tearful, and under stress as she recounted them. The psychologist gave an Axis I diagnosis (under DSM-IV) of PTSD, chronic, delayed onset; and major depressive disorder. The psychologist expressly noted that the veteran's current psychological condition was "definitely a result of her active duty in the US Army." Specifically, the psychologist stated: The events and conditions that [the veteran] experienced as . . . [a] nuclear weapons technician and a member of the Special Weapons Support Brigade when she was stationed in Europe are definitely the cause of the development of these symptoms although she has also reported physical and emotional abuse by her father. In numerous written letters, and in comments made to her treating physicians, the veteran gave the following descriptions (summarized here for the sake of brevity) of the alleged stressors she experienced while on active duty in Germany: ? She had to clean a nuclear weapon on which troops had urinated (her first assigned duty after having completed her military occupational specialty training). She reported to a private physician that the stress and stench of cleaning the warhead caused her such intense fear and anguish that she vomited into her protective mask (which she could not clear until she completed the duty). ? While stationed with the 96th Ordinance Attachment, she had to inventory, paint, and hammer (with a sledgehammer) identification numbers on the heads of hundreds of nuclear warheads while under military guard. In this regard, she has described a "two-person rule" that applied to anyone inspecting or maintaining nuclear weapons, and stated that a person in violation of the rule was subject to being shot. She has testified and reported in written statements that during one such occasion, a serviceman guarding her at the time "freaked and ran off," while another serviceman "locked-and-loaded on us." She reported that one of the guards was shot in the back of the head for violating the two-person rule. Regarding said incident, the veteran testified at the July 2001 personal hearing: OK, it wasn't the guy getting shot, it was the fact that I was pounding on a nuclear weapon with a four-pound sledge, embossing a serial number in it, because they never had an embossed serial number, and we didn't know if they were war reserve or trainers in the field and we had to check and mark him and the guard saw me hitting the warhead and lock-and- loaded on us, OK, that's stressful. The guy getting shot was a relief; he wasn't pointing a gun at us anymore. Now, I mean, it may have been stressful for him, hitting that warhead, it was stressful for me the first dozen or so until you kind of get used to the idea because it's not what you normally do . . . . We used to invite the battalion commanders down; we had more than one pass out on us. ? She dealt with large numbers of nuclear weapons that were in her unit's custody, and was responsible for training and inspections. She reportedly was responsible for correctly decoding messages from the chain of command in regard to alert and arming of nuclear weapons and the possibility of having to fire the weapons. ? During an inspection of a nuclear missile in 1975, a final assembly test indicated that the weapon was armed (and therefore in danger of exploding). She and her detail had to wait for another testing device for four hours until another one could be delivered. She had to run electrical current through the warhead to ascertain its status, which she knew could also detonate the warhead if it was armed as first indicated. She recalls that she "flipped the switch and I thought I almost saw the blinding light." She reports that this episode was extremely unnerving to her and continued to be played out in her dreams. ? She witnessed numerous officers and enlisted men "lose their minds" and become psychologically disabled while assigned to her unit in Germany. She reports that the stress of working around weapons of mass destruction was apparently a common cause for mental disorders and many individuals could not take it. Several times she witnessed enlisted men and officers removed from her unit because of psychological disability. On one occasion she had to clean up the aftermath of a suicide in the message decoding room after a warrant officer committed suicide. In a June 1999 letter, a private physician, B. B., M.D., reported that she had been following the veteran since 1990. Dr. B. reported diagnoses of PTSD and major depression, and expressly opined that the veteran's military service contributed to her current psychological disability. In a June 2000 letter, the veteran's private psychologist wrote that he continued to follow the veteran in her psychotherapy "to lessen the symptoms and psychological pain which are the result of her service in the US Army Special Weapons Support Brigade." He reported that the veteran's emotional reaction of crying, grimacing, shortness of breath, and long pauses in her verbalizations due to blocking and extreme emotional turmoil when describing the alleged stressors, were manifestations of her disorder which arose after her service. The psychologist stated that the veteran had described her alleged stressors in detail, and had told him that she used compartmentalization and denial in order to function during service, but she finally had to retire from service when she could no longer use such defenses. It was noted that the veteran experienced severe depression after her separation from service, and was unable to get along socially. She became homeless for several months due to her psychological disorders and continued to have severe difficulty in social situations. The psychologist further stated: There is no other explanation for the occurrence of this condition except her time in service. How else would one explain a high functioning, healthy, athletic high school graduate upon entering the service, able to be a top performer in her [military occupational specialty] leaving with such major problems? On VA PTSD examination in October 2000, the VA physician noted that she presented several scenarios and experiences, and it was difficult to get her to focus for clear data. During the examination, the veteran reported the stressors she had previously outlined for the RO and her private medical care providers. She stated that she had intrusive thoughts and dreams about her military experience, and generally did not sleep well. She described feelings of irritability, difficulty standing in line, and difficulty getting along with and trusting people. She had periods when she would become quite verbally abusive. She stated that she had tried medications, including Paxil and Zoloft, but they had not been effective. War movies caused her increased stress. She described prior self-inflicted injuries, including tearing her toenails off. On mental status evaluation, the VA examiner noted that the veteran was upset and very tearful. She was alert and oriented times four. She was extremely talkative, and her thought process was coherent, but filled with extensive and somewhat irrelevant details to the matter at hand. Her higher cognitive functions were intact. The Axis I diagnosis was generalized anxiety disorder, and the Axis II diagnosis was personality disorder, not otherwise specified. A Global Assessment of Functioning (GAF) score was 55. The VA examiner did not offer a specific opinion as to the etiology of the diagnoses, but provided the following summary: [The veteran] . . . has generalized anxiety disorder and personality disorder, [not otherwise specified]. [She] has only features of post-traumatic stress disorder. [She] did not meet the DSM-IV criteria for post-traumatic stress disorder on examination today. Further, [she] has a generalized anxiety disorder, as well as personality psychopathology. In a May 2001 letter, the veteran's private psychologist wrote that he had read, and wished to respond to, a supplemental statement of the case (SSOC) issued by the RO in April 2001. He stated that the veteran informed him that the VA examiner who performed the October 2000 examination had interviewed the veteran for fifteen minutes, and the veteran did not have the opportunity to fully detail her symptoms. He further noted that the VA physician's diagnosis of generalized anxiety disorder and unspecified personality disorder did not negate the presence of [PTSD], and "[i]ndeed, anxiety is one of the most prominent of symptoms that is present in PTSD." At the July 2001 personal hearing before the undersigned, the veteran recounted the stressors she allegedly experienced during active duty. She stated that the first time she really felt she had developed a psychiatric problem was in 1989, and that her symptoms had persisted since that time. II. Legal Criteria On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 et seq. (West Supp. 2001)) became law. VA has also revised the provisions of 38 C.F.R. § 3.159 effective November 9, 2000, in view of the new statutory changes. See 66 Fed. Reg. 45620-45632 (August 29, 2001). This law redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminated the concept of a well-grounded claim and superseded the decision of the United States Court of Appeals for Veterans Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA could not assist in the development of a claim that was not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, § 7(a), 114 Stat. at 2099-2100. In the instant case, the Board finds that VA's duty to assist and duty to notify under the VCAA and its implementing regulations have been fulfilled. A review of the claims file shows that the veteran was afforded a VA PTSD examination in October 2000. The RO has obtained her service records, the report generated on VA examination in October 2000, as well as pertinent records from private health care providers. The claims file shows that no medical care provider has indicated that pertinent records exist which have not already been furnished. The record indicates that she has been informed of the evidence needed to substantiate her claim and the RO has complied with VA's notification requirements. Thus, the record indicates, and the Board concludes, that the veteran was adequately informed of the evidence necessary to support her claim, all relevant records identified were obtained, and sufficient medical evidence for a determination of the issue on appeal has been furnished. Therefore, the Board is satisfied that all relevant facts have been properly developed and no further assistance is required in order to satisfy the duty to assist. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. On June 18, 1999, VA published a final rule in the Federal Register which amended 38 C.F.R. § 3.304(f) to bring that regulation into compliance with the U.S. Court of Appeals for Veterans Claims holding in Cohen v. Brown, 10 Vet. App. 128 (1997). Pursuant to the amendment, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2000); 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. 64 Fed. Reg. 32,807-32,808 (June 18, 1999) (codified at 38 C.F.R. § 3.304(f) effective March 7, 1997, the date of the Court's decision in Cohen). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f) (2000); Doran v. Brown, 6 Vet. App. 283 (1994). Service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). However, if it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). On the facts of this case, the Board finds it prudent to discuss the VA Adjudication Manual M21-1 (M21-1) provisions on PTSD claims, which generally require that in cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence. M21-1, Part III, 5.14(b)(3). The Board finds that the provisions of M21-1 are appropriate in this case, inasmuch as the in-service trauma described by the veteran in this case reasonably appears to include stressors based on duty assignments that are not necessarily productive of symptoms requiring immediate medical attention. In this regard, the Board finds that the facts of the veteran's PTSD claim can be reasonably analogized to M21-1 provisions regarding personal-assault claims, which consist of requirements regarding the development of "alternative sources" of information, as service records "may be devoid of evidence because many victims of personal assault, especially sexual assault . . . do not file official reports either with military or civilian authorities." Id. at 5.14(c)(5). Of particular pertinence to the veteran's claim in this case are the provisions of subparagraphs (8) and (9) which, respectively, indicate that behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor, and that secondary evidence may require interpretation by a clinician, especially if it involves behavior changes; and that evidence which documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. Examples of behavioral changes that might indicate a stressor are (but are not limited to): visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; lay statements describing episodes of depression, panic attacks, or anxiety but no identifiable reasons for the episodes; evidence of substance abuse such as alcohol or drugs; and increased disregard for military or civilian authority. See M21-1, Part III, 5.14(c)(8)(a - o). Initially, the Board finds that the veteran's statements and July 2001 testimony regarding the in-service stressors she encountered while working with and maintaining nuclear weapons, in conjunction with the medical evidence which reflects current psychiatric pathology and which tends to link such pathology to her military service, are sufficient to establish that her current psychiatric disorders cannot be reasonably dissociated from her service. Her hearing testimony, along with several detailed written accounts she has submitted in support of her claim, are consistent and compelling as to the in-service stressors claimed by the veteran. By the consistency of her descriptions of the alleged stressors, the Board finds that she is a mostly reliable and competent historian. In view of her hearing testimony, in conjunction with the service medical records showing that she complained of depression and worry in service, and underwent psychiatric examination in service with a diagnosis of adult situational disorder, the Board finds that the record contains details which offer competent medical evidence in support for the veteran's account of her in-service stressors. Significantly, there is no evidence of record which tends to rebut the veteran's account of the detailed stressors she has described. Additionally, the Board finds that the record in this case, consisting of service records and service medical reports, post-service VA psychiatric examination, and mental status evaluations by private health care providers, support the veteran's contentions regarding the in-service stressors and the effects of those stressors on her behavior. Competent medical evidence is of record which establishes a diagnosis of PTSD, and there is medical evidence expressly relating the veteran's PTSD to the in-service stressors. As noted above, several thorough and comprehensive psychiatric examination reports have provided a diagnosis of PTSD dating from 1992. Those diagnoses of PTSD were substantially based upon the veteran's account of the in-service stressors outlined above, and the majority of the reports relate the diagnosis of PTSD at least in part to the veteran's in-service stressors. In sum, there is competent medical evidence which establishes a diagnosis of PTSD in accordance with DSM-IV and medical evidence which relates the veteran's PTSD to the in-service stressors. Her private mental health care providers have performed examinations which reveal Axis I diagnoses of PTSD and depression, and said diagnoses have been expressly attributed to the veteran's history of unusual psychological trauma; a history noted as related in part to the described in-service stressors. The diagnoses provided by her private health care providers appear clearly based upon the veteran's detailed accounts of her experiences of in-service trauma related to her work with nuclear weapons; an account which has been consistent with the facts she has alleged since the initiation of her claim in July 1999. Therefore, on the circumstances of this case, the Board finds that such a determination of medical diagnosis and causation provides the "nexus" between the diagnosis and the stressor that is necessary to warrant service connection for PTSD. The Board recognizes the medical evidence of record which is arguably unfavorable to the veteran's claim, inasmuch as said evidence is negative in providing the etiological findings necessary to establish a link between the current diagnosis of PTSD and the in-service stressors. However, the Board finds that such evidence does not preponderate against the evidence favorable to the veteran's claim, and thus the benefit of the doubt in resolving the issue of service connection for PTSD is given to the veteran. See 38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet. App. 518 (1996) (citing Gilbert v. Derwinski, 1 Vet. App. 49 (1990)). In view of the above, the Board concludes that the veteran has PTSD as a result of service. Therefore, service connection for PTSD is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304(f). ORDER Service connection for PTSD is granted. R. F. WILLIAMS Member, Board of Veterans' Appeals