Citation Nr: 0624342 Decision Date: 08/11/06 Archive Date: 08/18/06 DOCKET NO. 03-18 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran had active service from October 1970 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas, which denied the veteran's claim of entitlement to service connection for post-traumatic stress disorder (PTSD). In September 2005, the veteran was afforded a hearing before Holly E. Moehlmann, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). FINDINGS OF FACT 1. The veteran did not engage in combat. 2. The veteran does not have PTSD attributable to military service or to any incident of active duty. CONCLUSION OF LAW PTSD was not incurred or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.304(f) (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection The veteran asserts that she has PTSD as a result of her service. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter; 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). 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, 66 (1993). The veteran does not assert, and her service records do not show, that she participated in combat. The Board therefore finds that the veteran did not participate in combat. See Cohen v. Brown, 10 Vet. App. 128, 145 (1997). In reaching this determination, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against a finding of participation in combat, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); VAOPGCPREC 12-99, 65 Fed. Reg. 6256-6258 (2000). The veteran asserts that she has PTSD as a result of a personal assault and sexual harassment. In Patton v. West, 12 Vet. App. 272 (1999), the Court emphasized that statements contained in prior decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'", of a claimed stressor and that "[a]n opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of the stressor," were made in the context of discussing PTSD diagnoses other than those arising from personal assault. Id. at 280; see also Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). With regard to personal assault cases, the Court pointed out that "VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." Id. (citing VA Adjudication Procedure Manual M21-1 (M21-1) (now M21-1MR). The Court has also held that these provisions of the VA Adjudication Procedure Manual, which provide special evidentiary procedures for PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations. See YR v. West, 11 Vet. App. 393 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). The Court in Patton noted that the manual improperly appeared to require that the existence of the in-service stressor be shown by a preponderance of evidence. Any such requirement would be inconsistent with the so-called equipoise doctrine where the benefit of the doubt is given to the claimant unless the evidence preponderates against the claim. In addition, 38 C.F.R. § 3.304(f)(3) provides: 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). In this case, the veteran's claimed stressor is that she was verbally and sexually harassed by a supervisor (hereinafter identified as "Sergeant M") during her service at Ft. Bragg. More specifically, she asserts that she was repeatedly propositioned to perform sexual acts by Sergeant M, who offered to give her lighter duties in return, and who alternatively threatened to have her transferred to Germany. She states that on several occasions she was subject to unwanted physical contact by Sergeant M, specifically, that he placed his hands on several areas of her body. She reports that she complained to her first sergeant and commanding officer, but that nothing was done. A lay statement from the veteran's husband, received in June 2003, states the following: he married the veteran in February 1971; she reported that she was being sexually harassed by Sergeant M during her service at Ft. Bragg; his commanding officer ordered him not to confront Sergeant M or he could lose his security clearance and ruin his career; the veteran lost a promotion due to her refusal to give in to Sergeant M's demands; the veteran left the service due to Sergeant M's harassment, although they went the "'recent marriage' route." The Board initially notes that the veteran has not asserted that she ever filed a written complaint or police report, or that any other written records exist of her complaints. It therefore appears that corroboration is not feasible, and that the claimed stressor cannot be documented. Therefore, referral to the U.S. Army and Joint Services Records Research Center (JSRRC) is not warranted. See M21-1MR, Part IV.ii.1.D.15.a. The claims file includes the veteran's discharge, service medical records, and personnel records. The veteran's personnel record (DA 20) indicates that she began serving at Ft. Bragg on May 6, 1971, where she remained until her discharge, and that her principal duties while at Ft. Bragg were dental specialist and dental hygienist. The service records include a copy of her marriage certificate, which shows that she was married in February 1971. Her personnel file indicates that she was incrementally promoted from E1 to E4, with no demotions, and that her promotion to E4 took place in July 1971. Her efficiency during this time is characterized as "excellent." An April 1972 memo regarding her efficiency rating also characterizes her efficiency as "excellent." Another April 1972 memo, as well as associated documents, shows that the veteran requested "separation for reason of marriage," and that her requested was approved. The veteran has not asserted that she ever received any relevant medical treatment, and her service medical records do not show treatment for psychiatric symptoms. Her separation examination report, dated in April 1972, indicates that her psychiatric condition was "NE" (presumably "not examined"). In summary, the service and service medical records do not mention treatment for an assault, nor do they contain any indication that the veteran was the victim of an assault or harassment. There is no other contemporaneously dated evidence to show that the claimed stressor occurred. The Board therefore finds that the evidence is insufficient to show that the claimed stressor is verified. See M21-1MR, Part III.iv.4.H.29.e; and Part IV.ii.1.D.17.b. The non-service medical evidence includes VA and non-VA reports, dated between 1999 and 2005. This evidence shows that the veteran first received treatment for psychiatric symptoms no earlier than 1999, at which time she complained of problems with her son. See reports from Evelyn Cintron, M.D., dated between 1999 and 2001. Dr. Cintron's reports contain assessments of situational anxiety and depression. There were no complaints or reports of sexual harassment or assault at that time. The earliest diagnosis of PTSD is found in VA progress notes, dated in 2001, with competing Axis I diagnoses of major depressive disorder and alcohol abuse in remission. See e.g., July 2001 VA progress note; see also report from Michael H. Brophy, M.D, dated in July 2003. Reports from a social worker at the Vet Center, dated in July 2003 and September 2005, essentially assert that the veteran has PTSD that is related to her service. To the extent that a social worker from the Vet Center may have concluded that the veteran has PTSD due to personal or sexual assault during service, her opinion was based on an oral history as provided by the veteran, without any other detailed, corroborating and reliable medical history, and it is unaccompanied by a rationalized explanation or citation to clinical findings during service or to evidence of verified behavioral changes during and reasonably after service. In this regard, as previously noted, the veteran was not treated for any psychiatric symptoms during service, and her first post-service treatment for psychiatric symptoms is dated in 1999, which is approximately 26 years after separation from service. In addition, although the Board has searched the claims file for the various types of evidence which may be evidence of sexual harassment, such as evidence of behavioral changes or difficulties in service, there is no objective evidence dated contemporaneously with service to support her claim. The Board therefore finds that this report does not outweigh the evidence, particularly the lack of corroborating evidence of inservice stressor, which shows that the veteran does not have PTSD due to sexual harassment or assault during her service. Although the Board has considered the veteran's oral and written testimony submitted in support of the arguments that she has PTSD as a result of her service, the Board has determined that all of the elements required for service connection for PTSD have not been met. See 38 C.F.R. § 3.304(f). Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim, and that the claim for PTSD must be denied. In reaching this decision, the Board has considered the oral and written testimony of the appellant, and the lay statement. However, lay statements are not competent evidence of a diagnosis, nor are they competent evidence of a nexus between the claimed condition and the veteran's service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Accordingly, the veteran's claim for service connection for PTSD must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. VCAA On November 9, 2000, the President signed into the law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). The VCAA imposes obligations on VA on its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Court also held that VA must request that the claimant provide any evidence in his possession that pertains to the claim. Id. This "fourth element" comes from the language of 38 C.F.R. § 3.159(b)(1). The Board finds that the VCAA notice requirements have been satisfied. In this case, in January 2002, the RO sent the veteran a notice letter (hereinafter "VCAA notification letter") that informed her of the type of information and evidence necessary to support her claim. The RO's letter also informed the veteran of her and VA's respective responsibilities for obtaining information and evidence under the VCAA and contained a specific request for the veteran to provide additional evidence in support of her claim. She was asked to identify all relevant evidence that she desired VA to attempt to obtain. The VCAA letter was mailed to the appellant prior to the initial RO adjudication of her claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). No further notice is needed as to any disability rating or effective date matters. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Since the claim for service connection for PTSD is being denied, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. VA is not required, therefore, to provide this notice. The Board further notes that in June 2002, the veteran was provided with notice regarding additional sources of evidence for assault claims in accordance with 38 C.F.R. § 3.304(f)(3). VA also has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. The Board is satisfied that its duty has been met and that all reasonable efforts to develop the record have been made. The RO requested and obtained the veteran's service and service medical records, and has obtained VA and non-VA medical records. Although the veteran has not been afforded an examination and an etiological opinion has not been obtained, as previously noted, there is no probative objective evidence dated contemporaneously with service for an examiner to review. Under the circumstances, the Board has determined that the evidence does not warrant further development. See Bradford v. Nicholson, No. 03-1204 (July 20, 2006), silp-op at 10 (holding that the decision to obtain a professional opinion under 38 C.F.R. § 3.304(f) is wholly within VA's discretion); see also Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for PTSD is denied. ____________________________________________ HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs