Citation Nr: 9932113 Decision Date: 11/12/99 Archive Date: 11/19/99 DOCKET NO. 95-23 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The evidence associated with the file, including responses from the National Personnel Records Center (NPRC), service personnel records, and a certified DD214, reflect that the appellant enlisted in a reserve unit on an unverified date in 1973, had active duty for training (ACDUTRA) from November 1974 to February 1975, and was honorably discharged from the reserves in September 1975. The only administrative or personnel record associated with the file is a four-page DA Form 20, Enlisted Qualification Record. No administrative, personnel, or medical records associated with any period of reserve service have been located. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied entitlement to service connection for Graves' disease and for a psychiatric disorder. By a Board decision issued in May 1998, the Board denied the appeal for service connection for Graves' disease. The appellant has not appealed that decision, and no issue as to Graves' disease remains before the Board. The May 1998 Board decision remanded the issue of entitlement to PTSD, and that issue returns to the Board. The appellant requested a Travel Board hearing. That hearing was conducted in February 1998 before the undersigned Board member. FINDINGS OF FACT 1. The appellant has a current psychiatric disorder which has been medically linked to a traumatic event that the appellant alleges occurred during ACDUTRA. 2. Government records which might confirm or contradict the appellant's contentions as to when a traumatic event occurred cannot be located, but the evidence of record is consistent with the appellant's claim. 3. The appellant has established status as a veteran. 4. The veteran has PTSD as a result of a traumatic event that occurred in service. CONCLUSION OF LAW Post-traumatic stress disorder was incurred as a result of service. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.159, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that before becoming entitled to "status" as a claimant for VA benefits, an appellant has first to demonstrate by a preponderance of the evidence that he or she (or the person upon whose military service the claim for VA benefits is predicated) is/was a "veteran." See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). Only after "veteran" status is established does title 38, and the implementing regulations thereunder, become applicable to the claimant and the claim for benefits. See Laruan v. West, 11 Vet. App. 80, 83-85 (1998). The term "veteran" means "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2) (West 1991). Compensation is payable to a veteran "[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service . . .." 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may also be established for a disability that is diagnosed after separation from active service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999); see Savage v. Gober, 10 Vet. App. 488 (1997). Active military, naval, or air service, includes active duty, a period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(22), (23), (24) (West 1991 & Supp. 1999); 38 C.F.R. § 3.6(a) (1999). Active duty for training includes full-time duty performed by members of the National Guard of any State. 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, performed by a member of the National Guard of any State. 38 C.F.R. § 3.6(d). The determinative question, therefore, as to whether this appellant served in the "active military, naval, or air service" is whether during any period of ACDUTRA she was disabled from a disease or injury incurred in or aggravated in line of duty, or whether during any period of INACDUTRA she was disabled from an injury incurred in or aggravated in line of duty. The appellant must establish her status as a veteran by a preponderance of the evidence. Laruan, supra, 84-86. In order to determine whether the appellant has, by a preponderance of the evidence, established her status as a "veteran," the Board must evaluate as a whole her claim that she has a current disability due to an injury (sexual assault) incurred during service. Thus, the appellant must show, by a preponderance of the evidence, that she has a current disability (a medical diagnosis), that she incurred an injury (traumatic incident claimed as sexual assault) during service, and that there is a nexus or relationship between the in-service injury and the current disorder, as shown through medical evidence. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Laruan v. West, 11 Vet. App. at 85. As to whether the appellant has a medical diagnosis of the claimed disability, PTSD, the preponderance of the evidence supports the appellant's contention that she has this disorder. A statement from a VA clinical psychologist, Janet Willer, Ph.D., dated in March 1996, discloses a diagnosis of PTSD. Following remand by the Board in May 1998, the appellant was examined by a VA psychiatrist who had not previously treated her, and that examiner also concluded that the appellant had PTSD. There is no conflicting medical evidence suggesting that the appellant does not have a current psychiatric disorder or assigning a different diagnosis. The Board therefore concludes that the appellant has shown, by a preponderance of the evidence, that the appellant has PTSD. The medical evidence further reflects medical opinion linking the current diagnosis of PTSD to a traumatic incident. Both Dr. Willer and the psychiatrist who examined the appellant in May 1998 reported that the appellant has described a sexual assault, avoidance of situations or locations similar to those of the alleged assault, and that her descriptions and behavior are consistent with such an occurrence. The only medical evidence of an alternate explanation for the appellant's current psychiatric disorder is a statement, in Dr. Willer's report, that the appellant also has schizotypal personal disorder. However, Dr. Willer concluded that there was an original, traumatic event, and that the appellant has PTSD. Thus, the preponderance of the evidence establishes that the appellant incurred injury due to a traumatic incident. The appellant must also establish, by a preponderance of the evidence, that a traumatic incident etiologically linked to PTSD was incurred during active military service; that is, during her period of ACDUTRA from November 1974 to February 1975. During her hearing in February 1998, the appellant testified under oath that she had been sexually assaulted in service. She provided an approximate date, location, and name of the servicemember who she alleged committed the assault. Records obtained by the RO reflect that an individual with that name was stationed at the location where the appellant testified that the assault occurred during the relevant time period. The appellant's testimony and the objective evidence are consistent, but this evidence does not confirm or contradict the appellant's testimony. In addition to the appellant's testimony, a statement on the appellant's behalf was submitted by a former fellow servicemember, D.J., who supported the appellant's testimony that the appellant had confided that she had been sexually assaulted during service. The "buddy" statement of the former fellow servicemember does not confirm that the traumatic incident which is etiologically related to the appellant's current diagnosis of PTSD, because the former fellow servicemember does not state that the appellant related confidences about the alleged traumatic event during ACDUTRA. Rather, the fellow servicemember states that the appellant told her of the incident "years ago," without stating any definite period of time. The appellant testified that she went to a medical facility about 48 hours after the assault occurred, but that the facility "did not want to put anything down" as there was a period of time between the assault and when she sought medical care. Since no service medical records are available, the appellant's testimony is the only evidence of her medical condition during this period of time. The appellant testified that "Beverly" and "Diane Cravens" were among the fellow servicemembers who were aware of the assault. A service administrative record associated with the file confirms that the appellant's unit included Beverly Craven and Diane Cravens. The evidence of record includes the names and Social Security numbers of these individuals. However, no statement has been obtained from either of these individuals, either by the appellant or by the RO. These two former fellow servicemembers might be able to support or contradict the appellant's statements. However, the absence of information from these individuals is not a factor which may be weighed against the appellant in determining whether the preponderance of the evidence favors or is against her claim. The examiner who conducted the 1998 VA examination specifically noted that he could not confirm that the appellant had suffered a traumatic incident in service, but did provide an opinion that the appellant's examination was consistent with such an incident in service. The evidence of record clearly establishes that the appellant had reserve service of more than two years and had ACDUTA from November 1974 to February 1975. However, no service induction examination, periodic examinations, or separation examination reports have been located, either for the appellant's reserve service or as to her period of ACDUTRA. No service medical records of any type are associated with the file, although NPRC has indicated that service medical records were sent to VA. The appellant has supplied a DD214 which is partially handwritten, and apparently issued at the conclusion of ACDUTRA, but has been certified as official. No administrative records as to the appellant's reserve service have been located. The Board notes that the available service records are consistent with an interpretation that the appellant's psychiatric condition underwent a change during her period of ACDUTRA, as she has alleged. Other available evidence, such as the appellant's DA Form 20 and the information obtained as to the alleged assailant, is consistent with the appellant's statements and testimony, but does not clearly confirm that the claimed incident occurred. Service medical records or administrative records which might confirm or contradict the appellant's statements and testimony regarding the traumatic incident cannot now be located, although NPRC has indicated that service medical records were sent to VA. This evidence was not within the appellant's control, and thus the lack of this evidence does not weigh against the veteran in determining the preponderance of the evidence. The sworn testimony of a veteran is generally accepted as credible unless it is "inherently incredulous." King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the appellant has offered sworn testimony which is essentially consistent with the other testimony and facts of record and is consistent with the appellant's prior statements of record. Moreover, there is no evidence of record which suggests that the appellant incurred a traumatic incident which led to PTSD after her period of active duty for training. There is no evidence of record which weighs against the claim. The Board notes that, although some of the testimony that the appellant provided during her hearing as to other matters cannot be substantiated, the testimony as to an alleged traumatic incident is internally consistent, and is consistent with the appellant's statements to health care providers and to VA. The evidence of record is either favorable to or, at a minimum, consistent with the appellant's claim that she suffered a traumatic incident in service. As there is no evidence which weighs against the claim, the Board concludes that the preponderance of the evidence establishes that a traumatic incident which has been medically related to a diagnosis of PTSD was incurred in service. The Board therefore finds that the appellant is a veteran, and, as a veteran is a benefits-eligible claimant. Since the Board has concluded, as part of the review of the veteran's status, that she has established, by a preponderance of the evidence, that she has PTSD which was incurred as a result of a traumatic event in service, the appeal for service connection for that disability must be granted. Epps, supra. ORDER Service connection for PTSD is granted. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals