Citation Nr: 0916076 Decision Date: 04/29/09 Archive Date: 05/07/09 DOCKET NO. 06-32 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD), claimed as secondary to military sexual trauma (MST). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from February 1977 to May 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The case was brought before the Board in October 2007, at which time it was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The Veteran had a hearing before the Board in July 2008 and the transcript is of record. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDING OF FACT The preponderance of the competent and probative evidence does not support a finding that the Veteran's PTSD can be attributed to a verified, in-service stressful incident, to include MST. CONCLUSION OF LAW The Veteran's PTSD was not incurred in or aggravated by a verified, in-service stressful incident, to include MST. 38 U.S.C.A. §§ 1110, 5103A, and 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2008). 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). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in November 2004 and November 2007. Those letters advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The 2007 letter included a PTSD/MST questionnaire and advised the Veteran of the various types of evidence he could submit to verify the alleged MST. The 2007 letter also explained how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Ideally, the notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran was sent a duty-to-assist letter prior to the initial rating decision in the case, but complete notice was not effectuated until November 2007. The Veteran still has the right to VCAA content complying notice and proper subsequent VA process, and that has been done, as discussed above. Any defect with respect to the timing of the VCAA notice requirement was harmless error. See Mayfield, supra. Although the notice provided to the Veteran in 2007 was not given prior to the first adjudication of the claim, the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and, after the notice was provided, the claim was readjudicated and an additional SSOC was provided to the Veteran in October 2008. Not only has he been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. Social Security Administration (SSA) disability records are in the file. The Veteran indicated he received Worker's Compensation relevant to the claim at hand. The claim was previously remanded, in part, to obtain the records, but the Veteran did not respond to VA's request for a signed release. Accordingly, VA could not obtain the records. The Veteran since that time has not indicated or otherwise referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was afforded medical examination to obtain an opinion as to whether the Veteran has PTSD related to any incident of service, to include MST. Cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004). Further examination or opinion is not needed because, at a minimum, there is no persuasive and competent evidence that the claimed condition may be associated with the Veteran's military service. This is discussed in more detail below. Thus, the Board finds that VA has satisfied the duty to assist the Veteran. In the circumstances of this case, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Therefore, the Board may proceed to consider the merits of the claim. Service Connection 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 he was raped by a male nurse while in the military seeking treatment for an injured ankle. The Veteran admits that he never formally reported the MST and, in fact, had no memory of the incident until his memory was triggered by a VA medical questionnaire he filled out sometime in 2004, nearly three decades after service. Accordingly, there is no objective verification of the assault. The Board finds noteworthy that the Veteran testified before the Board in July 2007 that the male nurse, Specialist P., is currently a convicted sexual predator. No such documentation is currently of record. 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 alleges he was an exemplary soldier prior to the incident, allegedly occurring in February 1978. After the incident, the Veteran alleges his attitude turned "sour" and he was ultimately dishonorably discharged a few short months later. The Veteran's personnel records confirm the Veteran was discharged "under honorable conditions" for "failure to maintain acceptable standards for retention." The Veteran was originally enlisted to serve through 1980, but received disciplinary action for going AWOL in May 1978 and was discharged shortly thereafter for, among other reasons, a poor attitude. The notion that the Veteran's problems were limited in time to after the February 1978 incident, however, is simply not credible. That is, prior to entering the military, the Veteran's personnel records note the Veteran had a troubled childhood. He was charged with "purse snatching" at the age of 15 and admitted to experimenting with marijuana and alcohol. The Veteran, at the time of enlistment, was in a foster home because of familial alcohol problems as well as child abuse. As will be explained more thoroughly below, the claim is further complicated because for decades the Veteran alleged a close family member sexually abused him as a child. He later alleged he was mistaken and now has full memory of the 1978 military sexual abuse by the male nurse. The first pertinent inquiry is whether psychiatric problems were shown in service. The Board concludes they were not. The Veteran's service treatment records indicate the Veteran had psychiatric consultations in February 1977 and again in April 1978, which were normal but noted a history of psychiatric care predating the military. The service treatment records also confirm on February 19, 1978, Specialist P. called for an ambulance on behalf of the Veteran for a possible fractured ankle. The records indicate that prior to that time, Specialist P. had treated the Veteran for other, unrelated conditions. The Veteran's May 1978 separation examination indicated no abnormalities. The alleged MST is not confirmed by the service treatment records. In short, the service treatment records are devoid of any findings consistent with the alleged rape or any psychiatric problems. 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. The pertinent inquiry then is whether the Veteran has a current diagnosis of PTSD attributed to a verified in-service incident. The Board concludes, based on the evidence, he does not. After service, the medical records indicate extensive treatment for various psychiatric conditions as early as the 1990s, over twenty years after service. At that time, the Veteran was diagnosed with bipolar disorder, depression and poly-substance abuse. The Veteran was also hospitalized multiple times for various suicide attempts. In 2002, the Veteran was diagnosed with PTSD. At that time, the Veteran's PTSD was attributed by both private and VA physicians to his other health conditions and a serious work-related injury. Due to the injury, the Veteran filed for worker's compensation, which according to medical professionals at the time, deepened his depression. As indicated above, this claim is further complicated because prior to 2004, psychiatric treatment records indicate the Veteran was sexually abused by a family member (his father). Although there is no formal confirmation of the sexual abuse, there is paperwork and medical records confirming the Veteran was placed in foster care as a child due to familial alcohol addiction and child abuse. The Veteran also clearly had a troubled youth, evidenced by his petty theft charges, alcohol and poly-drug abuse at a very early age. All of these events are evidenced in the record and predate his military service. In October 2004, the Veteran alleges his memory was refreshed by a VA health questionnaire asking if he had ever been sexually assaulted. The Veteran alleges at that moment he first recalled the events in the military. He believes the military nurse drugged him for the ankle pain prior to the rape, which is why he had no memory of the event for years. The Veteran now claims he was mistaken about accusing a close family member of sexual abuse and believes the military event is really the source of his current PTSD. VA outpatient treatment records from October 2004 confirm the Veteran for the first time "recalled" in-service sexual assault. As indicated above, however, the diagnosis PTSD is noted in his medical records since 2002, two years prior to the Veteran's "revelation." The diagnosis, moreover, was attributed to the Veteran's other health conditions and his serious work-related injury. It is also evident from the decades' worth of medical records that the Veteran has a lengthy psychiatric treatment history of bipolar disorder and poly-drug abuse. Within those decades worth of psychiatric treatment, medical professionals consistently note the Veteran's history of child abuse and poly-drug abuse, but are silent as to any military-related incident responsible for any psychiatric diagnoses. The Veteran was afforded a VA examination in July 2005 where the examiner diagnosed the Veteran with PTSD, bipolar disorder, poly-substance abuse and personality disorder. The examiner attributed the Veteran's PTSD to his self-reported in-service sexual assault, but did not comment on the Veteran's prior allegation that a close family member sexually assaulted him. Other than noting the Veteran's childhood alcohol abuse, it is unclear if the examiner was aware of the Veteran's relevant childhood social and psychiatric history. Based on the likelihood the examiner's opinion was based on incomplete facts, the Board finds the opinion not probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (A medical opinion based on incorrect factual premise is not probative). Even if probative, however, the Veteran's diagnosis must be attributed to a verified stressor, which is not the case here. That is, the July 2005 examination as well as other VA outpatient treatment records provides medical evidence of a current, competent medical diagnosis of PTSD. The diagnosis, however, must be attributed to a verified in-service stressor. Regrettably, the Board concludes the preponderance of the evidence simply does not verify the alleged MST occurred. That is, the Veteran's first diagnosis of PTSD predates the Veteran's recollection of the alleged MST by two years. The Veteran alleges he was an exemplary soldier prior to February 1978, but his personnel records and pre-service records cut against such a theory. Indeed, it is indisputably evident the Veteran had disciplinary and legal problems prior to entering the service. Also compelling, the Veteran alleged a close family member sexually abused him for decades prior to alleging MST. The Veteran was placed in foster care, again prior to entering the military, due to alcohol and child abuse. It is also well-documented the Veteran's poly- substance abuse began while he was a child. Also noteworthy, the Veteran is currently receiving Social Security Administration (SSA) disability benefits based, in part, to psychiatric treatment records indicative of his troubled childhood. The Board does not doubt that the Veteran believes he was a victim of MST. As indicated above, the Veteran 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, 10 Vet. App. at 74. Regrettably, the most probative and competent evidence simply does not support a finding the Veteran's current PTSD is related to the alleged MST. The most probative and competent evidence, moreover, simply does not verify the MST. In summary, the Board finds that the preponderance of the evidence of record does not show that the Veteran has PTSD related to alleged MST and, therefore, service-connection is not warranted. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); see also, Hickson, supra. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for PTSD, claimed as secondary to MST, is denied ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs