Citation Nr: 0303569 Decision Date: 03/03/03 Archive Date: 03/18/03 DOCKET NO. 02-00 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. J. Janec, Counsel INTRODUCTION The veteran had active naval service from March 1991 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) from a June 2001 rating decision of the Boise, Idaho, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for PTSD. The Board notes that in his brief in support of the veteran's appeal, the veteran's representative characterized the issue as entitlement to service connection for an "acquired psychiatric disorder(s) that is variously diagnosed." In the June 2001 rating decision, the RO only addressed the issue of entitlement to service connection for PTSD. However, a review of the veteran's August 1999 claim reveals that she requested service connection for a "nervous condition." Service connection for a chronic anxiety disorder had previously been denied by the RO in an October 1993 rating decision. Accordingly, the issue of whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disorder (other than PTSD) is referred to the RO for appropriate development. Service connection for PTSD is the only issue that will be addressed in this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the duties to inform and assist have been met. 2. The preponderance of the evidence is against a finding that the veteran was sexually harassed and/or raped during her period of active duty; she did not engage in combat with the enemy. 3. The veteran has not been diagnosed with PTSD based on a verified stressor. CONCLUSION OF LAW PTSD was not incurred in the veteran's active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.159, 3.304(f)(3) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) , Pub. L. No. 106-475, 114 Stat. 2096 (2000). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002). This law eliminated the former statutory requirement that claims be well grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment but not yet final as of that date. Except for provisions pertaining to claims to reopen based on the submission of new and material evidence, which are not applicable in the instant case, the implementing regulations are also effective November 9, 2000. In this case, the provisions of the VCAA and the implementing regulations are applicable. See Holliday v. Principi, 14 Vet. App. 282-83 (2001) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. VA issued regulations to implement the VCAA in August 2001. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), which were effective August 29, 2001. VA has stated that the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA. 66 Fed. Reg. 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The rating decision, statement of the case, supplemental statement of the case, and VA letters to the veteran, apprised her of the information and evidence needed to substantiate the claim, the law applicable in adjudicating the appeal, and the reasons and bases for VA's decision. Furthermore, these documents outline the specific medical and lay evidence that was considered when the determination was made. In a January 2003 letter, the veteran was informed of the enactment of the VCAA and it was explained that she was responsible for submitting private treatment reports, although with the appropriate release forms they would be requested on her behalf. VA treatment reports and records from Federal agencies would be obtained by VA. In particular, she was also provided a copy of a June 2000 letter which described the types of alternative evidence she could submit to provide corroborating evidence related to her claimed stressor. There is no indication that any of the correspondence was returned as undeliverable. Accordingly, under the circumstances presented in this case, the veteran has been accorded ample notice as required by the VCAA. As such, the Board finds that the documents clearly satisfied VA's duty to notify the veteran of the information and evidence necessary to substantiate her claim and identified the evidence that VA was to acquire on her behalf as required by Quartuccio v. Principi, 16 Vet. App. 183 (2002). Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate her claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. Service medical records, service personnel records, and VA treatment records were associated with the file and the veteran was afforded two VA examinations. In June 2000, she was sent a letter asking that she provide evidence to support her claimed in-service stressor. The Naval Criminal Investigative Service was contacted and it was reported that no records pertaining to the veteran's claimed incident existed. She was provided another opportunity to identify or provide corroborating evidence of her stressor in January 2003. She submitted a statement similar to the one she provided in July 2000. There is no indication that there exists any evidence which has a bearing on this case that has not been obtained. The veteran has been accorded ample opportunity to present evidence and argument in support of this appeal and has not identified any additional pertinent evidence that has not been associated with the record. Service Connection Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2002). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2002). 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(d) (2002). To establish service connection for a disability, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden may not be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f) (2002); Cohen v. Brown, 10 Vet. App. 128 (1997). The Court of Appeals for Veterans Claims has emphasized that - "eligibility for a PTSD service-connection award requires" . . . specifically, "(1) [a] current . . . medical diagnosis of PTSD . . . ; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor." Gaines v. West, 11 Vet. App. 353, 357 (1998), citing Cohen, supra, and Suozzi v. Brown, 10 Vet. App. 307 (1997) (emphasis in original). If the claimant did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the claimant's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen, supra; Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet. App. 70, 76 (1994). The question of whether the veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). In sum, whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators, and whether any stressors that occurred were of sufficient gravity to cause or to support a diagnosis of PTSD is a question of fact for medical professionals. Cohen, supra. The veteran's principal claimed stressors are that she was sexually assaulted during her period of active duty. In this regard, the Court has noted that in claims for service connection for PTSD based on personal assault, VA has established special procedures for evidentiary development. Patton v. West, 12 Vet. App. 272, 277 (1999). These procedures, which became effective in February 1996, take into account the fact that since personal assault is an extremely sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in- service trauma may find it difficult to produce evidence to support the occurrence of the stressor. These procedures thus acknowledge the difficulty claimants face in establishing the occurrence of the stressor through standard evidence, and the need for development of alternate sources of evidence. See VA Adjudication Procedure Manual M21-1 (hereinafter M21-1), Part III, paragraph 5.14c (Feb. 20, 1996) (substantially enlarging on the former Manual M21-1, Part III, paragraph 7.47c(2) (Oct. 11, 1995)). Alternate sources that may provide credible evidence of an in-service personal assault include medical or counseling treatment records following the incident, military or civilian police reports, reports from crisis intervention or other emergency centers, statements from confidants or family, copies of diaries or journals, or behavior changes documented or observed at the time of the incident, such as obsessive behavior at the time of the incident, pregnancy tests, increased interest in test for sexually transmitted diseases, termination of primary relationships, or alcohol and drug abuse. Evidence that documents any such behavioral changes may require interpretation by a VA neuropsychiatric physician to determine whether such evidence bears a relationship to the medical diagnoses. See M21-1, Part III, para. 5.14(c)(9). Furthermore, these provisions recognize that the standard PTSD stressor letter may be inappropriate for this type of PTSD claim, and thus state that if the claimed stressful incident is a personal assault, a stressor development letter specifically tailored for personal assault cases should be sent to such veterans. See M21-1, Part III, para. 5.14(c)(6). In addition, the Court in Patton stated that in two places M21-1, Part III, para. 5.14(c)(3) and (9), appeared improperly to require that the existence of an in-service stressor be shown by "the preponderance of the evidence" and held that any such requirement was inconsistent with the benefit of the doubt doctrine found in 38 U.S.C. § 5107(b). Therefore the evidence need only be in relative equipoise to prevail on the question of the existence of the stressor. Finally, effective March 7, 2002, VA amended the regulations concerning the evidence necessary to establish the occurrence of a stressor in claims for service connection for PTSD resulting from personal assault. These new regulations partially divided and expanded 38 C.F.R. § 3.304(f), and require that VA not deny such claims without: (1) first advising claimants that evidence from sources other than a claimant's service medical records, including evidence of behavior changes, may constitute supporting evidence of the stressor; and (2) allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(3)) . Specifically, this regulation provides the following guidance: If a post-traumatic stress disorder claim is based on 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. VA will not deny a post- traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes 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 may 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 occurred. 38 C.F.R. § 3.304(f)(3)) Analysis The veteran has not contended that she engaged in combat with the enemy. Her claim for service connection for PTSD is based solely on the allegation that she was sexually assaulted/raped while she was on active duty. In June 2000, the RO sent the veteran a letter requesting that she provide any additional evidence related to the stressor. In a July 2000 statement, she responded that when she was stationed aboard the USS Yellowstone, a petty officer inappropriately touched her and talked "sexy" to her. Sometime later, after returning from a deployment to Cuba, she went to a hotel in Norfolk for a weekend. The same petty officer came to her room and raped her. She could not recall the name of the petty officer. However, she indicated the event affected her performance and her health, eventually leading to her discharge from service in March 1992. She reported having nightmares and flashbacks of the incident; an inability to establish intimate relationships since that time, and that she has since become paranoid and lives in fear. In January 2003, the veteran provided a similar statement regarding the incident with the petty officer. She remarked that following this event, her first evaluation was low and she suffered worse depression and severe anxiety. She reported she did not take any medications at the time, she did not abuse alcohol or other substances, she did not experience any obsessive behaviour, she did not take a pregnancy test or request tests for HIV or sexually transmitted diseases, and she did not display any disregard for military or civilian authority. She stated that she was afraid of men and becoming a loner after the incident. Service personnel records and service medical records do not document any evidence that the veteran reported that she was sexually assaulted during her active military service. Service medical records do confirm, however, that the veteran was hospitalized in October 1991, (prior to her deployment to Cuba) for complaints of increased depression and suicidal thoughts, and in this regard, it was noted that her past medical history included child abuse and a pre-service rape. (She was abused by both parents in a foster home and raped at the age of 14.) It was also indicated that she did well in counseling until entering the Navy, but had since attempted suicide by choking. After seven months of active duty, she was concerned about her upcoming deployment to Cuba and was unsure that she would be able to handle the stress. She also complained of increased depression over the weekends because she did not have any family present, and admitted to a poor work performance and poor self-esteem. Upon discharge from the hospital, she was diagnosed with avoidant personality disorder with dependent borderline traits, and it was concluded that, although she was not mentally ill, she manifested long-standing character behaviors of such severity as to interfere with her ability to perform her duties. It was recommended that she be processed for administrative separation from the service. She also was encouraged to seek counseling and enroll in a sexual assault abuse group. She was tested for gonococcus, Chlamydia, fecal occult blood, fecal leukocytes, and parasites in October 1991. All tests were negative. A chronological record for HIV testing indicated that an HIV test in October 1990 was negative. No further HIV test results were listed. Service medical records also showed that the veteran was seen in March 1991, for complaints of a history of diarrhea on and off over the past year. She was diagnosed with irritable bowel syndrome. At a Physical Evaluation Board in January 1992, it was determined that the veteran was unfit for duty due to her functional gastrointestinal symptoms. Upon VA examination in October 1994, the veteran reported that she was raped when she was 13 years old. She was also sexually harassed twice while in the Navy. She stated that she reported the incidents but was not believed. After she was discharged from service, she reported she shot a man who had raped her, served jail time and was then placed on three years probation. It was noted that the alleged assailant was not convicted of anything. During her active service, she related she became depressed while she was on the ship. However, when she was off the ship she would feel fine and have fun. The diagnoses were adjustment disorder with depressed and anxious mood; and mixed personality disorder. The psychiatrist noted that the veteran had a difficult time adjusting to service; however, she did not have a psychiatric disorder that was related to her military service. VA hospitalization records indicate that the veteran was hospitalized in February 1999, July 1999 and January 2000. In the February 1999 discharge summary, it was noted that the veteran had been in psychiatric treatment on and off since she was nine years old, and had been adopted and physically abused by her adoptive parents. She reported being raped by a security guard when was nine years old. She also indicated she was raped twice in the Navy, but she did not report it. After she was discharged from the service, she indicated she joined a religious cult and was raped by one of the members. She claimed she shot the man, was arrested and eventually convicted for assault with a deadly weapon. After the shooting, she had nightmares and intrusive thoughts of the event. She also experienced panic attacks. These symptoms gradually went away. The immediate cause for her current hospitalization was she took an overdose of melatonin. She was diagnosed with PTSD. In the July 1999 VA discharge summary, the discharge diagnoses were depression, PTSD by history, and adult attention deficit disorder by history. This was a one day hospitalization, but information obtained from the veteran was she had an argument with her boyfriend and was unable to sleep. She also reported ruminations about being served with a restraining order, stemming from an argument she had with another woman. She felt that she had been normal prior to February 1999, but had been unable to get back to being the person she was. She also felt suicidal and decided to take an overdose of melatonin, but she suffered no sequelae. In the January 2000 VA discharge summary, the discharge diagnoses were depression, not otherwise specified, with borderline traits. This hospitalization was occasioned by behavior indicating the veteran might harm herself, but there was no mention in the summary of any claimed assaults in service. A review of the evidence discloses that the veteran initially reported in October 1994 that she was sexually harassed while she was in the military. In subsequent years, the allegations escalated and included assertions that she was raped by a petty officer. She was unable to recall his name. The Naval Criminal Investigative Service was contacted and it was reported that no records pertaining to the veteran's claimed incident existed. The veteran and her representative were advised to submit corroborating evidence regarding her claimed sexual harassment and/or rape, and she was sent the appropriate forms for reporting this information in accordance with VA provisions and current case law. However, she has not provided any significant secondary evidence to support her assertion. The record is void of medical or counseling records which document treatment directly related to the claimed incident(s), military or civilian police reports, or reports from crisis intervention or other emergency centers. Her service medical records document that she received treatment for complaints of depression and suicidal thoughts, but at that time, she related that she had been raped prior to service and had been abused by her foster parents. She did not report any harassment or sexual assaults during her service. The post-service treatment records do not show a consistent reporting or recollection of the alleged incidents, or any other incidents claimed by the veteran after her military service. She has not provided any statements from family members or confidantes, and there are no documented reports regarding behavior changes at the time of the claimed incident. Her increased depression in service was attributed to her pre-service trauma and upcoming deployment. The Board acknowledges that the veteran's service medical records indicate that she was tested for gonococcus and Chlamydia in October 1991. However, there was no indication that the tests were done in conjunction with any reports of sexual trauma. Furthermore, her HIV test reporting sheet did not indicate that she was given additional HIV tests after her entrance into active military service. Consequently, the Board finds that the evidence of these two tests alone does not bring all the evidence of record into equipoise such that the existence of the stressor may be conceded. The Board concludes that the veteran's claimed in-service sexual assault stressors may not be accepted as fact. Accordingly, any diagnoses of PTSD based on this reported history would be lacking probative value and rendered insufficient to support an award of service connection. Without a diagnosis of PTSD based on a verified stressor, service connection for that disorder may not be granted. Cohen, supra. Consequently, service connection for PTSD is denied. ORDER Service connection for PTSD is denied. MICHAEL E. KILCOYNE Acting Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.