Citation Nr: 0201919 Decision Date: 02/27/02 Archive Date: 03/05/02 DOCKET NO. 95-14 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Togus, Maine 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 HEARINGS ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran (also referred to as "appellant" or "claimant") served on active duty from December 1974 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 1995 by the Department of Veterans Affairs (VA) Medical and Regional Office Center (RO) in Togus, Maine, which denied service connection for PTSD. The veteran entered notice of disagreement with this decision in April 1995; the RO issued a statement of the case in April 1995; and the veteran entered a substantive appeal, on a VA Form 9, which was received in May 1995. Supplemental statements of the case in March 2000 and August 2001 also included the issue of entitlement to service connection for a personality disorder, including psychiatric disabilities other than PTSD, analyzed as whether new and material evidence had been presented to reopen a previously denied claim for service connection for a personality disorder. However, the Board may only exercise jurisdiction over an issue after an appellant has filed both a timely notice of disagreement to a rating decision denying the benefit sought, and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 1991); Roy v. Brown, 5 Vet. App. 554 (1993). It is unclear from the veteran's representative's submissions received in response to these supplemental statements of the case whether they are expressing disagreement with the RO's denial of any issue other than service connection for PTSD. While two of the representative's written submissions listed as an issue service connection for personality disorder, the references to particular Board decisions and the substantive arguments all pertained to the denial of service connection for PTSD. Accordingly, the Board finds that an issue of entitlement to service connection for a personality disorder or any psychiatric disorder other than PTSD, or whether new and material evidence has been presented to reopen such claim, is not currently on appeal to the Board. FINDINGS OF FACT 1. All evidence necessary to decide the issue on appeal is of record. 2. The veteran did not engage in combat with the enemy. 3. The record includes a medical diagnosis of PTSD, competent evidence which supports the veteran's assertion of in-service incurrence of the stressful event of a personal assault, and medical evidence of a nexus between diagnosed PTSD and the stressful event of personal assault in service. CONCLUSION OF LAW With the resolution of reasonable doubt in the veteran's favor, PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a) (2001); 66 Fed. Reg. 45,630-32 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000), now requires VA to assist a claimant in developing all facts pertinent to a claim for VA benefits, including a medical opinion and notice to the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the VA Secretary, that is necessary to substantiate the claim. VA has issued regulations to implement the Veterans Claims Assistance Act of 2000. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The Board finds that, in this appellant's case, the requirements of the Veterans Claims Assistance Act of 2000 and implementing regulations have been met. The appellant was afforded personal hearings at the RO and before the undersigned acting member of the Board. In the rating decision, statement of the case, and supplemental statements of the case, the RO advised the appellant of what must be demonstrated to establish service connection for PTSD. A personal assault development questionnaire was sent to assist in developing the claim. See Patton v. West, 12 Vet. App. 272 (1999). The Board notes the veteran's contention that further development is required to attempt to locate and obtain a statement from his former commanding officer to whom the veteran reported the personal assault. The Board also notes that the most recent VA examination precluded a diagnosis of PTSD because the examiner was instructed not to consider PTSD. However, in light of the Board's decision herein to grant the appeal, no further notice or assistance to the veteran is necessary in order to decide the claim for service connection for PTSD currently on appeal; there is no reasonable possibility that further assistance in attempting to obtain such verifying information or current examination or medical opinion would aid in substantiating the claim. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001). Accordingly, no further notice to the appellant or assistance in acquiring additional evidence is required by the new statute and regulations. The veteran contends that he currently suffers from PTSD as a direct result of a personal assault, or rape, by two men on September 27, 1975 during his active service. He specifically contends that he sought medical attention two days later and informed the medical provider that he had fallen down stairs and hit his head, but did not tell of the personal assault. The veteran contends that he did tell his commanding officer of the assault, but was told in essence not to mention it again, so he did not tell anyone else about the assault until after service. The veteran further contends that his alcohol problems in service are a manifestation of this assault, and that he experienced other behavioral problems in service and soon after service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2001). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2001). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2001). Service connection for PTSD now requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); 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). Prior to the effective date of 38 C.F.R. § 3.304(f) on June 18, 1999, and at the time of the veteran's claim for service connection for PTSD, the requirements for service connection for PTSD were: medical evidence establishing a clear diagnosis of the condition; credible supporting evidence that the claimed stressor actually occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1998). Generally, when a law or regulation changes while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). In this case, the Board finds that the new regulation is potentially more beneficial in this veteran's case because it only requires medical evidence of a current diagnosis of PTSD in accordance with DSM-IV, but no longer requires a "clear" diagnosis of PTSD (which could include a diagnosis based on a version of DSM prior to the DSM-IV). However, in light of the Board's grant of the appeal, the Board finds that the veteran was not prejudiced by not being notified of the change in the regulation. See Bernard v. Brown, 4 Vet. App. 384 (1993). With regard to the claimed stressor involving allegations of personal assault, VA recognizes that veterans claiming service connection for disability due to an in-service personal assault face unique problems documenting their claims. Personal assault is an event of human design that threatens or inflicts harm. Although these incidents are most often thought of as involving female veterans, male veterans may also be involved. These incidents are often violent and may lead to the development of PTSD secondary to personal assault. VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14 (April 30, 1999) (hereinafter M21-1). Because assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. Therefore, alternative evidence must be sought. The M21-1 includes a sample letter to be sent to the veteran, asking him to provide detail as to any treatment he had received, any family or friends he had communicated with concerning this claimed personal assault, and any law enforcement or medical records pertaining to the alleged assault. M21-1, Part III, 5.14 (April 30, 1999). See also YR v. West, 11 Vet. App. 393 (1998) (5.14 is a substantive rule and the equivalent of a VA regulation). With respect to claims involving personal assault, all available evidence must be carefully evaluated. If the military records do not document that a personal assault occurred, alternative evidence might still establish an in- service stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Examples of behavior changes that might indicate a stressor are (but are not limited to): (a) visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; (b) sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; (c) lay statements indicating increased use or abuse of leave without an apparent reason such as family obligations or family illness; (d) changes in performance and performance evaluations; (e) lay statements describing episodes of depression, panic attacks, or anxiety but no identifiable reasons for the episodes; (f) increased or decreased use of prescription medications; (g) increased use of over-the- counter medications; (h) evidence of substance abuse such as alcohol or drugs; (i) increased disregard for military or civilian authority; (j) obsessive behavior such as overeating or undereating; (k) pregnancy tests around the time of the incident; (l) increased interest in tests for HIV or sexually transmitted diseases; (m) unexplained economic or social behavior changes; (n) treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; and (o) breakup of a primary relationship. M21-1, Part III, 5.14(7). In personal assault claims, secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. M21-1, Part III, 5.14(8). In adjudicating a claim for service connection for PTSD, 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). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b) (West Supp. 2001); 38 C.F.R. § 3.304(d),(f) (2001); Doran v. Brown, 6 Vet. App. 283, 289 (1994). However, if it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In this case, there is no objective evidence that the veteran "engaged in combat with the enemy." See VAOPGCPREC 12-99. The veteran's DD Form 214 does not indicate references to combat, but reflects that the veteran was an administration specialist, was stationed at an Air Force Base in Massachusetts for the entire period of service, and earned no decorations, medals, badges, ribbons, or awards. Moreover, the veteran does not even allege that the claimed in-service stressful event of a personal assault was related to combat with the enemy in service. For these reasons, the Board finds that the veteran did not engage in combat with the enemy and that the reported stressor is not claimed to be related to combat. Because the veteran did not engage in combat with the enemy, his lay testimony alone is not enough to establish the occurrence of the alleged stressor of personal assault. However, after a review of the evidence, the Board finds that the service records and other evidence of record is sufficient to raise a reasonable doubt as to whether the alleged stressor of a personal assault occurred in September 1975 during the veteran's active duty service. The Board has specifically considered behavior changes that occurred at the time of the incident, or soon thereafter, as indicated by the M21-1, which may indicate the occurrence of an in-service stressor. The M21-1 contemplates that visits to a medical clinic without a specific diagnosis or specific ailment is a behavior change occurring at the time of the incident that might indicate a stressor. In this veteran's case, in service on September 29, 1975, the veteran reported that two nights prior he sustained an injury to the right side of his head and abdomen. His specific complaints included blurred vision, right-sided headache, feeling of pins and needles on the right side of the scalp, and a tight abdominal feeling. No diagnosed disability was entered at that time, while further observation was indicated. About three weeks later, on October 17, 1975, the veteran reported that he felt about the same. Still no diagnosis was rendered to account for the reported symptoms. By November 19, 1975, the veteran also complained of vomiting every other day for the previous month; an assessment regarding this complaint was deferred. While the veteran reported specific ailments, it is of note that he reported complaints affecting both his abdomen and head, and reported several symptoms. These entries are some evidence of initial visits to a medical facility without a specific diagnosis. The record also reflects that by February 1976 the veteran indicated that he was unhappy in service and was anxious to be released. This reflects the veteran's desire not to remain in service, which includes a desire not to remain on the same base or in the same command. This is analogous to the M21-1 behavior change of a sudden request for a change of duty assignment. Changes in performance and performance evaluations are behavior changes contemplated by M21-1 that might indicate a stressor. The only specific or quantified measures of the veteran's performance during the period following the alleged personal assault is a January 1976 Performance Report which reflects that the veteran's self improvement efforts (training accomplishments) and adaptability to military life (personal conduct) were below minimum acceptable standards. While this report is indicated to have been based on the previous one year period ending in December 1975, there is no previous report to provide a baseline for comparison. The February 1976 endorsement to this referral reflects poor progression in on-the-job training, with failure of the end of course test, and continual problems in getting to his duty section on time. Such poor performance is also indicated by the veteran's mother's statement that the veteran's commanding officer and others in service called her to talk about the veteran, and the fact that the veteran's supervisor called to talk to service medical examiners about the veteran. The veteran was discharged from service in July 1976, well before the end of his four year service agreement. While it is unclear when a change in behavior in service occurred, the record reflects that the veteran's personal conduct toward the end of service indicated low adaptability to military life. Evidence of alcohol abuse is also a behavior change indicated by M21-1 as behavior that might indicate a stressor. In this case, the evidence shows that in service in January 1976, three months after the alleged personal assault in September 1975, the veteran reported a history of heavy drinking. While the January 1976 treatment entry indicates that the veteran reported a one year history of heavy drinking, the first evidence of record to indicate alcohol abuse was a December 1975 entry diagnosing probable alcohol gastritis. The abdominal complaints which led to later diagnoses of alcoholism were first noted contemporaneously with the reported injury in September 1975 which the veteran now contends was associated with the in-service rape. The evidence reflects that heavy drinking, alcoholism, and associated blackouts were indicated in the months following the personal assault in service until discharge from service. The fact that the veteran's commanding officer called the veteran's mother during service expressing concern about the veteran's alcohol problems, and the veteran's supervisor contacted service medical personnel about the veteran's drinking problem, also tend to indicate a behavioral change of alcohol abuse consistent with the occurrence of a stressful event in service. Obsessive behavior is a change contemplated by M21-1 that might indicate a stressor. His mother wrote in October 1996 that when she went to visit the veteran in service she found the veteran to be angry and irritable and refused to talk to her. The veteran's mother wrote that after service he seemed distant, incoherent, and shallow, and would stare aimlessly in a corner of a room or in a closet. The veteran's mother also wrote that soon after service the veteran developed the obsessive behavior of washing himself multiple times daily, that he constantly showered and cleaned himself, to the point of leaving scratches and marks on his body. In a September 1996 letter, a private psychologist wrote that the veteran was a compulsive cleaner and showered 5 to 6 times a day to the point that he had a skin condition. Another of the behavior changes indicated by the M21-1 is treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma. Service medical records reflect that on September 29, 1975 the veteran reported injury to the head and abdomen, but did not report a personal sexual assault which he later alleged was the source of such complaints. The Board also finds it significant that at the first examination after service (the veteran filed his claim for service connection for alcoholism and a "nervous condition" within one month of service separation), at a VA examination in November 1976, the veteran, apparently reluctantly and after breaking down and crying, reported an incident of being "jumped" and raped by fellow soldiers in service while walking back from a club on base. The veteran has testified under oath at two personal hearings regarding the incurrence of a rape in service in September 1975. The Board finds that, although the veteran does not consistently recall dates of occurrence of events, including the in-service rape, his essential testimony regarding this event, as well as other significant facts he reported, are consistent with the service medical record evidence and other corroborative evidence. The veteran's testimony includes that he did not have a problem with alcohol prior to service, that he was raped in service on September 27, 1975, that he reported for medical treatment two days later but did not mention the assault, that his behavior changed in service, including development of an alcohol problem in service prior to discharge, that he mentioned the assault at a VA examination in 1976. The other evidence of record does not otherwise demonstrate that the veteran's essential testimony is not credible. The post-service medical evidence of record tends to corroborate the veteran's testimony as it reflects that from 1987 the veteran has reported the occurrence of an in-service rape on numerous occasions, including solely for treatment purposes. Based on this evidence, the Board finds that the service records and other evidence of record is sufficient to raise a reasonable doubt as to whether the alleged stressor of a personal assault occurred in September 1975 during the veteran's active duty service. Resolving reasonable doubt on this question in the veteran's favor, the Board finds that the reported stressor of a personal assault occurred in September 1975. 38 C.F.R. § 3.102. The record includes a medical diagnosis of PTSD and medical evidence of a nexus between diagnosed PTSD and the stressful event of personal assault in service, the two additional elements required to establish a claim for service connection for PTSD. 38 C.F.R. § 3.304(f). For example, a February 1987 VA progress note records the veteran's reported history of a rape during active service by two military police, with a diagnosis of post-traumatic reaction to rape, with depression. A VA hospital summary in June 1994 reflects a history which included the report of in-service rape, and resulted in diagnoses which included a history of non-combat PTSD. The progress notes reflect consideration of PTSD as the primary diagnosis. VA outpatient treatment records from 1987 to 1994 reflect a continued diagnosis of PTSD based on reports of a rape in service. An August 1995 entry reflects a diagnosis of PTSD based on reported symptomatology and report of a rape in service in 1976. A VA physician's memorandum and a physician statement in November 1994, and a private psychologist's letter in January 1995, reflect diagnoses of PTSD as the primary disabling condition, but do not specify whether the diagnoses are based on the reported in-service personal assault or a post-service assault reported to have occurred in 1986. However, in a September 1996 letter, the same private psychologist wrote that the veteran was suffering from PTSD as a result of being raped while in service. Again in July 1997 this psychologist wrote that he had treated the veteran since 1994 for symptoms suggestive of PTSD, based on the report of the veteran having been raped in service by military police. Records from the U.S. Social Security Administration dated in 1995 reflect that the veteran was awarded disability benefits based on several disabilities, one of which was an anxiety-related disorder (the history included the diagnosis of non-combat PTSD). As indicated, the record includes a medical diagnosis of PTSD, competent evidence which supports the veteran's assertion of in-service incurrence of the stressful event of a personal assault, and medical evidence of a nexus between diagnosed PTSD and the stressful event of personal assault in service. For these reasons, and with the resolution of reasonable doubt in the veteran's favor, the Board finds that the veteran's diagnosed PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107, 5103, 5103A (West 1991 & West Supp. 2001); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a); 66 Fed. Reg. 45,630-32 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159). ORDER The appeal for service connection for PTSD is granted. MICHAEL A. PAPPAS Acting Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.