Citation Nr: 0818664 Decision Date: 06/05/08 Archive Date: 06/12/08 DOCKET NO. 05-02 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The veteran had active duty military service from November 1978 to May 1992, with additional service in the reserves. This appeal to the Board of Veterans Appeals (Board) is from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. As support for her claim, the veteran testified at a video-conference hearing in July 2006 before the undersigned Veterans Law Judge (VLJ) of the Board. In a prior December 2006 decision, the Board reopened the veteran's claim on the basis of new and material evidence. The Board then remanded the claim to the RO, via the Appeals Management Center (AMC), for further procedural and evidentiary development before readjudicating the claim on the underlying merits. FINDING OF FACT According to the medical and other evidence of record, it is just as likely as not the veteran has PTSD partly due to a sexual assault while in the military, irrespective of her other claimed combat-related stressors. CONCLUSION OF LAW Resolving all reasonable doubt in her favor, the veteran's PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Here, though, the Board need not discuss whether there has been VCAA compliance because the claim is being granted, regardless. See, e.g., 38 C.F.R. § 20.1102 (2007) (harmless error). Analysis The establishment of service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2007) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in- service stressor. 38 C.F.R. § 3.304(f) (2007). See also Cohen v. Brown, 10 Vet. App. 128 (1997). The evidence necessary to establish the occurrence of a recognizable stressor during service - to support a diagnosis of PTSD - will vary depending upon whether the veteran engaged in "combat with the enemy," as established by recognized military combat citations or other official records. See e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Cohen v. Brown, 10 Vet. App. 128 (1997). If VA determines the veteran engaged in combat with the enemy and her alleged stressor is combat-related, then her lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required - provided her testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." See 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b);; 38 C.F.R. § 3.304(d); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, on the other hand, VA determines either that the veteran did not engage in combat with the enemy or that she did engage in combat, but that the alleged stressor is not combat related, then her lay testimony, by itself, is insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates her testimony or statements. Cohen v. Brown, 10 Vet. App. at 147; Moreau v. Brown, 9 Vet. App. 389, 395 (1996). The Board is not required to accept an appellant's uncorroborated account of his or her active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). Moreover, after-the-fact medical nexus evidence cannot be the sole evidence of the occurrence of the claimed stressor. Moreau, 9 Vet. App. at 396. Corroboration does not require, however, "that there be corroboration of every detail including the appellant's personal participation in the identifying process." Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Rather, an appellant only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure. For example, in Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court held that a veteran need not corroborate his actual physical proximity to (or firsthand experience with), and personal participation in, rocket attacks while stationed in Vietnam. Furthermore, medical opinions in cases of personal assault for PTSD are exceptions to the general rule discussed in Moreau that an opinion by a medical professional based on a post-service examination cannot be used to establish the occurrence of a stressor. See Patton v. West, 12 Vet. App. 272, 277 (1999). See also 38 C.F.R. § 3.304(f)(3); VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section H, part 30(b), (c), (e) (Aug. 1 ,2006). Because personal assault is an extremely personal and sensitive issue, many incidents are not officially reported, which creates a proof problem with respect to the occurrence of the claimed stressor. In these situations, it is not unusual for there to be an absence of service records documenting the events the veteran has alleged. The victims of this type of trauma may not necessarily report the full circumstances of it for many years after it occurred. Thus, when a PTSD claim is based on a personal assault in service, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. 38 C.F.R. § 3.304(f)(3); see also Patton, 12 Vet. App. at 277. 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). 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. Id. The Court has set a relatively low bar for interpreting a claim for PTSD as one involving a personal assault stressor for which the provisions of 38 C.F.R. § 3.304(f)(3) are applicable. See, e.g., Bradford v. Nicholson, 20 Vet. App. 200 (2006) (veteran alleged that his sergeant kicked him down a set of stairs). The Court advised that the portions of the VA Adjudication Procedure Manual M21-1, Part III, paragraph 5.14c, provide "guidance on the types of evidence that may serve as 'credible supporting evidence' for establishing service connection of PTSD which allegedly was precipitated by a personal assault during military service." Patton, 12 Vet. App. at 277. The Court held that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations [indeed, this is now codified at 38 C.F.R. § 3.304(f)(3)], and therefore, they bind VA decisions. YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton, 12 Vet. App. at 272. Moreover, VA itself has defined personal assault very broadly to include an event of human design that threatens or inflicts harm. Examples of personal assault include rape, physical assault, domestic battery, robbery, mugging, stalking, and harassment. See VA Adjudication Procedure Manual M21-1MR, Part III, Subpart iv., Ch. 4, Section H, part 30(a) (Aug. 1, 2006); VA Adjudication Procedure Manual M21- 1MR, Part IV, Subpart ii., Ch. 1, Section D, part 17(a), (c) (Dec. 13, 2005). As a consequence, it is important to address and consider the applicability, or at least the potential applicability, of 38 C.F.R. § 3.304(f)(3) in claims of entitlement to service connection for PTSD where the appellant describes any type of action or occurrence that could generally be described as constituting an "assault" or "harassment" during service, even if it is unclear whether the appellant is actually claiming PTSD based on that alleged assault or harassment. The veteran has received the required DSM-IV diagnosis of PTSD. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); See also 38 C.F.R. § 3.304(f). Her recent VA treatment records reveal ongoing therapy for this condition. See, for example, her January to March 2007 VA treatment records. In addition, a May 2007 letter from a VA staff psychiatrist reiterates the veteran has been diagnosed with PTSD and indicates she is receiving mental health care for disabling symptoms of "traumatic re-experience, nightmares, flashbacks, chronic insomnia, hyper vigilance, startled response and social avoidance," low frustration tolerance, and memory and concentration problems. See also July and October 2004 Social Security Administration (SSA) examination reports. The PTSD diagnosis is further supported by Global Assessment of Functioning (GAF) scores as low as 40. The GAF score, incidentally, is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th Ed.) (DSM-IV), p. 32). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and unable to work, etc.) The determinative issue, then, is whether there is sufficient evidence for concluding that any of the veteran's alleged stressors in service actually occurred and, if there is, whether there also is medical evidence linking her PTSD diagnosis to at least one of the confirmed stressors. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The veteran has asserted several stressors occurred during her military service, some in combat and others related to military sexual trauma (MST). She says that she observed missiles flying overhead, witnessed casualties to a jeep in her convoy from hitting a land mine, and participated in burying dead enemy Iraqi soldiers. She also reports observing a decapitated body in a mortuary. Her MST stressor involves purportedly being gang raped by three white male assailants when dragged into some nearby woods around her base. After attempting to further develop the claim as directed in the Board's December 2006 remand, including trying to obtain some corroborating evidence concerning these alleged stressors, the U. S. Army and Joint Services Records Research Center (JSRRC) indicated in July 2007 that it was unable to verify these claimed stressors due to insufficient information. And the veteran has since indicated in August 2007, on a VA Form 21-4138, that she has no additional information or evidence to provide to substantiate these claimed stressors, such as concerning specific names of casualties and definitely not the names of the soldiers that assaulted her. So for the most part these incidents remain unverified and, therefore, an insufficient basis to grant service connection. 38 C.F.R. § 3.304(f); Cohen, 10 Vet. App. at 147; Moreau, 9 Vet. App. at 395. There is, however, sufficient evidence to grant the claim to the extent it is predicated on MST. As already alluded to, the veteran claims that she was gang raped by three white males, just outside a military base in Hanover, Germany. She says she was grabbed from behind while standing at the base's gate waiting for a taxi and dragged into a nearby wooded area, where she was assaulted and then left. See her July 2005 personal assault questionnaire and January 2007 supporting statement (VA Form 21-4138); see also her statements in a December 2004 VA treatment record. During her July 2006 video-conference hearing, she testified that when she attempted to report the incident to her superiors, she was harassed and her complaints ignored. As for the date of the incident, she said the assault occurred between July 1990 and May 1992. See her July 2005 personal assault questionnaire. Notably, she contends that she cannot narrow down the assault date to within a three-month time frame because her PTSD makes it stressful merely to think about the incident. See her November 2005 and August 2007 supporting statements on VA Form 21-4138. Although she has been unable to provide more specific details concerning this alleged MST, the veteran has provided several corroborating lay statements. Individually and especially cumulatively, they provide highly probative evidence corroborating her changes in behavior since service due to this MST. See 38 C.F.R. § 3.304(f)(3). First, there is a June 2005 statement from a childhood friend and co-worker in the military, who the veteran reported the sexual assault to and whose letter corroborates the claim in great detail by noting behavioral changes in the form of emotional withdrawal, reduced energy, apprehensiveness of crowds and leaving her room, crying spells, and general anger. Second, a July 2005 statement and an undated statement from her older sister also account her confiding in a trusted friend about the sexual assault in Germany by three men. Her sister noted that, before military service, her sister was energetic, fun, good spirited, and outgoing, but after being assaulted, became isolated, depressed, and suicidal. Third, a July 2006 statement from her long-time friend and roommate also states that the veteran told her of the sexual assault by three Caucasian men. This friend added that the veteran became a "shell of who she once was," reluctant to leave her home to do basic tasks such as shopping for groceries and driving long distances. Fourth and finally, a July 2006 statement from her father reaffirms that she became depressed after service, though she was fun and active when younger. The Board finds these statements to be credible because of their consistency in reporting the facts and details of them. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). The veteran's service medical records are mostly unremarkable for indications of a sexual-assault stressor, except for two potentially highly probative records. In the time frame alleged for the rape (July 1990 to May 1992), a January 1992 gynecologic cytology record notes a small tear in her vaginal wall and associated complaints of bleeding after intercourse. This is suggestive of prior sexual trauma. There is also a conspicuous stamp on a radiologic consultation report indicating she denied being pregnant in March 1992, also contemporaneous to when her MST allegedly occurred, prompting the question of why she had to make that declaration unless she had that concern. Resolving this doubt in her favor, it is possibly the result of a pregnancy test, providing further probative evidence supporting the occurrence of MST. 38 C.F.R. § 3.304(f)(3). And perhaps most significantly, a July 2005 nexus opinion of record is provided by a VA staff psychologist, who indicated the veteran has PTSD that is MST related. This same VA licensed psychologist more recently submitted another supporting statement in November 2006 reiterating this opinion. Moreover, a March 2006 VA treatment record by a staff psychiatrist also provided an assessment of PTSD arising from MST (rape), indicating as well that the veteran has a life-long disability resulting from that trauma. So while, in general, credible evidence of the occurrence of a claimed stressor cannot consist solely of medical evidence obtained after the fact (such as a VA physician's opinion after separation from service), the Court held in Patton that this general rule in Moreau does not apply to sexual-assault based cases, especially where, as here, there is other probative evidence supporting the claim. Furthermore, there is no specific information suggesting the alleged incident of MST did not occur. Concerning this, a stressor need not be corroborated in every detail. Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (quoting Suozzi v. Brown, 10 Vet. App. 307 (1997)). While the evidence that has been obtained is not necessarily of the specificity that it would corroborate all details associated with this incident, there nonetheless is sufficient corroboration of the veteran's change in behavior and demeanor, consistent with what she has alleged. Thus, considered in the aggregate and resolving all reasonable doubt in her favor, the Board finds that the evidence supports the veteran's claim of entitlement to service connection for PTSD - at least to the extent it is predicated on MST. See 38 C.F.R. §§ 3.102, 3.304(f)(3); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for PTSD is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs