Citation Nr: 0724223 Decision Date: 08/06/07 Archive Date: 08/20/07 DOCKET NO. 06-07 397 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD), claimed as due to military sexual trauma (MST). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from October 1966 to October 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Ft. Harrison, Montana. The veteran had a hearing before the Board in May 2006 and the transcript is of record. FINDING OF FACT The veteran's PTSD has been medically attributed to an in- service stressful incident. CONCLUSION OF LAW The veteran's PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 1154(b), 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). 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. § 3.303(d). 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 that his PTSD is a result of being sexually assaulted by his commanding sergeant for a three month period from April 1967 to June 1967. Specifically, the veteran alleges that the commanding sergeant would routinely force himself on him in the shower and threatened to physically injure him if the matter was ever reported. The veteran further testified he never reported the incident, but attempted to escape the base in various different ways, to include requesting a formal transfer, proposing to a woman he knew for one day, stealing a military vehicle, and suicide. The Board acknowledges that the veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He 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 v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The veteran admits that he never formally reported the MST and, in fact, never admitted the MST to a health care provider until 2004, nearly forty years after service. Accordingly, there is no objective verification of the assault. 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's service medical and personnel records do show some of the above listed types of evidence. That is, in May 2007 the veteran volunteered for an assignment requiring transport in a military vehicle. Prior to receiving clearance, however, the veteran fled in the vehicle with his girlfriend and got into a serious motor vehicle accident. The veteran, during his May 2006 Board hearing, alleged he was attempting to escape the military base away from the sergeant who was sexually abusing him. Upon his return, also in May 1967, the veteran was hospitalized for attempted suicide after taking a large amount of aspirin. Although he left a suicide note, the veteran denied he was trying to kill himself, but rather said the whole thing was a "joke." During his May 2006 Board hearing, the veteran explained that he was afraid and ashamed to admit the truth at that time. The psychiatrist at the time attributed the suicide attempt to girlfriend troubles and an emotionally unstable personality disorder. Thereafter, in July 1967, the veteran formally requested a transfer off the base citing "familial problems" and a desire to be closer to home. The request was not formally processed because two days later he requested permission to marry a seventeen year old girl he had known for only 30 hours. The veteran testified at his May 2006 Board hearing that he was trying anything he could think of to find a way off the base. There is also an August 1967 notation in his record that the veteran admitted to trying to get the girl pregnant in order to obtain permission to marry her. An August 1967 medical board determination ultimately found the veteran unfit for active duty due to an emotionally unstable personality disorder and he was separated from the military in October 1967. The first pertinent inquiry is whether a chronic psychiatric condition, to include PTSD, is shown in service. The Board concludes it is not. The veteran's September 1966 enlistment examination indicates the veteran exhibited "substantial anxiety at one time, recurring." Such behavior is noted throughout the veteran's military service, particularly in May 1967. The veteran, at that time, was diagnosed with a personality disorder, but personality disorders are considered congenital or developmental defects and not a "disability" for compensation purposes. See VAOPGCPREC 82- 90, 55 Fed. Reg. 45,711 (1990) [a reissue of General Counsel Opinion 01-85 (March 5, 1985)]; see also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514- 15 (1993). The Board notes, however, that personality disorders may be service-connected if they are shown to have been permanently aggravated beyond the natural progression of the disorder due to some incident of service. Id. In this case, the veteran alleges he has PTSD as a result of MST. The veteran was not diagnosed with this condition or any other chronic psychiatric condition in service. 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. After service, the medical records indicate treatment for various psychiatric conditions as early as 1998, over twenty years after service. At that time, the veteran was diagnosed with bipolar disorder, depression, alcohol dependence and anxiety disorder. He also diagnosed with PTSD due to childhood trauma in April 2000. The veteran's treatment records indicate his father physically abused him and his siblings as children and indeed, he reported his father killed his sister and then himself in one of these abusive episodes. The veteran first reported MST in a July 2004 VA psychiatric consultation. At that time, he was diagnosed with PTSD, due to the MST. Since that time, the veteran has been diagnosed with PTSD attributed to MST by various VA psychiatrists at various times. The veteran was afforded a VA examination in March 2005 where the examiner diagnosed the veteran with PTSD due to MST specifically opining as follows: It is felt that a diagnosis of posttraumatic stress disorder is warranted. It is felt that his PTSD is caused by, or is the result of trauma experienced while in the military. I would note that while his sexual trauma is not well documented prior to his admission to Fort Meade VA, his presentation was consistent with PTSD. [The veteran] did describe significant behavioral changes after the sexual assault. He reported that he frequently would go to sick bay in order to avoid contact with the offender. He also received an early out from the Air Force following a suicide attempt. Accordingly, the veteran has a competent medical diagnosis of PTSD linked to the alleged in-service stressful incident. The crucial inquiry, then, is whether the alleged incident can be verified. Resolving all reasonable doubt in favor of the veteran, the Board concludes it can. Again, there is no objective evidence confirming the MST. However, the veteran's service and personnel records confirm the veteran's frequent visits to sick bay, especially during the months of April, May and June 1967. The records confirm the veteran got in a car accident in May 1967 after taking a military vehicle without proper clearance and the subsequent suicide attempt. The veteran's request for a transfer and attempt to marry are also well documented all within or slightly after the timeframe of the alleged MST. It is clear, however, that the veteran has a history of personal trauma unrelated to the alleged MST. His family history of child abuse, for example, is well documented in his medical records as is his anxiety, noted on his 1966 entrance examination. The veteran was diagnosed with a wide range of psychiatric conditions prior to PTSD and his PTSD was previously associated with childhood trauma, not MST. The RO sought clarification from the March 2005 examiner on whether the stressor could be verified given the evidence in the record. The examiner opined as follows in a December 2005 statement: [The veteran] carries a diagnosis of post-traumatic stress disorder as made by several sources. Again, he reported to various sources that he had been sexually abused but confirmed that he did not report this while in the military. Records indicate that [the veteran] likely had psychological difficulties in the form of a personality disorder prior to entering the military. It was his personality disorder that significantly impacted his ability to remain in the military. He entered the military at age 17 and was discharged at age 18. Records do not confirm that [the veteran's] allegation that he had been sexually assaulted can be supported through record review. Thus there is no supporting evidence apart from the veteran's own statement which would confirm that there was a sexual assault that occurred while in the military. I could find no evidence in the records that [the veteran's] behavior changed significantly after the alleged sexual assault. It would appear he had adjustment difficulties while in the military throughout his military career. Thus, it must be concluded that records do not support that a sexual assault occurred. I would comment that this does not mean that [the veteran's] self report of being sexually assaulted by a sergeant while in the military is not true but only that this could not be verified through documentation reviewed. (Emphasis added). The examiner correctly indicates that, regrettably, there simply is no objective evidence of the veteran's alleged sexual assault. The examiner correctly indicated the veteran entered the military with adjustment difficulties and exhibited those difficulties throughout his military service. There is also evidence the veteran suffered through pre- military childhood trauma as well as post-service loss of his son and wife. The Board finds compelling, however, the various chain of events confirmed in the veteran's service and personnel records all occurring in the spring of 1967 or shortly thereafter, the timeframe of the alleged sexual assault. The veteran's testimony, moreover, is consistent with the veteran's service and personnel records indicating the veteran's frequent trips to sick bay, the May 1967 automobile accident and reprimand, the May 1967 suicide attempt, a subsequent request for a transfer and an attempt to marry. In short, there is some objective evidence that the veteran was trying to escape his Air Force base in various ways on and around May 1967. The only evidence, however, that the alleged stressful incident occurred is his statement. The veteran's testimony appears to be credible and consistent with the record. The veteran alleges, for example, that he began abusing alcohol as a means of medicating himself. The veteran's post-service medical records show hospitalizations and treatment for alcohol abuse as early as 1998. Again, while the veteran may have entered the military with "anxiety" problems, his only reprimands and other formal action noted in his personnel records are all around the May 1967 timeframe. Although there is a lack of objective verification of the in- service stressful incident, the Board finds the evidence to be at the very least in equipoise. Thus, the veteran is entitled to the benefit of the doubt. This is especially true in light of the PTSD medical diagnosis linking his condition to service made by various treating psychiatrists at various times, the objective evidence indicating the veteran's car accident, suicide attempt, request to be transferred of the base and marriage proposal all on or around May 1967 and his consistent statements regarding the in-service MST. Even the VA examiner acknowledged in his December 2005 statement that the MST may be true despite objective verification given the diagnosis rendered by various physicians at various times. The Board, therefore, concludes that service connection is warranted for PTSD. As this decision represents a complete allowance of the benefit sought on appeal, it is not necessary for the Board to discuss the Veterans Claims Assistance Act of 2000 and whether the duties to notify and assist have been properly discharged by VA. Upon return of this case to the RO, it will be making a decision regarding disability rating and effective date. If the veteran disagrees with either as assigned by the RO, he may file a notice of disagreement and appeal the determination(s). The veteran is not prejudiced by the Board's decision on the merits of this appeal. ORDER Entitlement to service connection for post-traumatic stress disorder (PTSD) is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs