Citation Nr: 0202159 Decision Date: 03/07/02 Archive Date: 03/15/02 DOCKET NO. 98-05 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. M. Panarella, Associate Counsel INTRODUCTION The veteran served on active duty from August 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The veteran has been diagnosed with PTSD. 3. The veteran did not engage in combat with the enemy while serving in Vietnam. 4. The record contains no credible evidence confirming the veteran's alleged in-service stressors. 5. The diagnosis of PTSD is not considered reliable without credible evidence confirming the veteran's alleged in-service stressors. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.304(f) (2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.159). REASONS AND BASES FOR FINDINGS AND CONCLUSION During the pendency of this appeal, the Veterans Claims Assistance Act of 2000, effective November 9, 2000, was signed into law, and regulations to implement the provisions of the new law were also passed, generally effective as of the same date. See 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159). This law sets forth requirements for assisting a veteran in developing the facts pertinent to her claim. After reviewing the claims file, the Board finds that there has been substantial compliance with the notice and assistance provisions of the new legislation. The veteran and her representative have been adequately notified of the applicable laws and regulations that set forth the criteria for entitlement to service connection for PTSD. The RO sent the veteran several letters informing her of the evidence necessary to substantiate a claim for PTSD, including the specific information necessary to verify a sexual assault stressor. Therefore, the Board concludes that the discussions in the rating decisions, Statement of the Case, Supplemental Statements of the Case, and related letters have informed the veteran and her representative of the information and evidence necessary to warrant entitlement to the benefit sought, and there has therefore been compliance with VA's notification requirement. In addition, the RO acquired service medical and personnel records, and relevant private and VA medical records. The RO also provided the veteran with a VA examination and afforded the veteran personal hearings before the RO and the Board. Finally, the RO requested verification of the veteran's reported stressors with the U.S. Marine Corps. Therefore, the Board also finds that there has been compliance with VA's obligation to assist the veteran. Accordingly, the Board concludes that the record as it stands is complete and adequate for appellate review and that no further action is necessary to meet the requirements of the Veterans Claims Assistance Act of 2000. Service connection for PTSD generally requires (1) medical evidence establishing a diagnosis of the condition, (2) credible supporting evidence that the claimed in-service stressor actually occurred, and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. If the evidence establishes that the veteran engaged in combat with the enemy, and the claimed stressor is related to that combat, the veteran's lay statements alone may establish occurrence of the claimed in- service stressor, in the absence of clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances, conditions or hardships of the veteran's service. See 38 C.F.R. § 3.304(f) (2001). Where, however, VA determines that the veteran did not engage in combat, or was not a POW, or the claimed stressor is not related to combat or POW experiences, the veteran's lay statements, by themselves, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other credible evidence that corroborates the stressor. See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d),(f); Gaines v. West, 11 Vet. App. 353, 357-358 (1998). Any current PTSD diagnosis should comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV), see 38 C.F.R. § 4.130, which reflects a subjective stressor standard. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The sufficiency of a stressor is, accordingly, now a clinical determination for the examining mental health professional. In the present case, the veteran has not claimed that she was involved in combat with the enemy. The veteran believes that she suffers from PTSD due to her experiences on active duty. Specifically, the veteran claims that she was raped while stationed in Vietnam. The veteran's DD 214 (Report of Transfer or Discharge) shows that her military occupational specialty was administrative. She served in Vietnam from October 1967 through March 1968, but received no medals or awards indicative of combat involvement. Therefore, as the veteran's claimed stressors are not related to combat, she must provide credible supporting evidence that they actually occurred and that she presently suffers from PTSD as a result. In various statements to the RO and in testimony presented at personal hearings in September 1998 and August 2001, the veteran alleged the occurrence of several stressful events during service in Vietnam. She testified that she felt unprepared to be in Saigon during the Tet Offensive and that she experienced stress from being in a war zone. However, she also testified that she completed U.S. Marine Corps basic training and that she was well guarded whenever she was transported from her hotel to work and while working at the Headquarters building. Neither her hotel nor the Headquarters building was struck by enemy fire during her tenure in Vietnam. The veteran also claimed that she witnessed a serviceman struck by sniper fire outside the Headquarters building in February or March 1968. She did not know the serviceman and was unable to determine whether he was in the Marine Corps or the Army because of the distance. She believed that she saw blood and she hid under her desk after the incident. The veteran also operated the office machinery that sent out condolence letters to the families of deceased servicemen. In August 2000, the RO attempted to verify the veteran's reported stressor of witnessing the sniper fire. The Department of the Navy responded that anecdotal incidents could not be verified and that the information was insufficient to conduct any meaningful research. Likewise, the Board finds that it is not possible to verify the veteran's report of generalized stress due to being stationed in a war zone and due to her work responsibilities. Finally, the veteran claimed that she was raped in Saigon on February 14, 1968, and that she became pregnant with her first child as a result. The Board observes that this alleged stressor has been the subject of the majority of the veteran's complaints as well as the apparent basis for her diagnoses of PTSD. Therefore, the Board will separately address this claimed stressor. In YR v. West, 11 Vet. App. 393 (1998), the United States Court of Appeals for Veterans Claims (Court) addressed the issue of corroboration of stressors in PTSD cases involving sexual assault. In YR, the Court advised that the portions of the VA Adjudication Procedure Manual M21-1, Part III, paragraph 5.14c, provided "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." YR, 11 Vet. App. at 399. The Manual M21-1 lists evidence that might indicate such a stressor, namely lay statements describing episodes of depression, panic attacks or anxiety, but no identifiable reasons for the episodes, visits to medical clinics without a specific ailment, evidence of substance abuse, and increased disregard for military or civilian authority. The Manual also lists behaviors such as requests for change of military occupational specialty or duty assignment, increased use or abuse of leave, changes in performance and performance evaluations, increased use of over-the-counter medications, unexplained economic or social behavior changes, and breakup of a primary relationship as possibly indicative of a personal assault, provided that such changes occurred at the time of the incident. See Manual M21-1, Part XII, para 11.38b(2) (Change 55). In Patton v. West, 12 Vet. App. 272, 277 (1999), the Court noted that in the particular case of claims of PTSD due to a personal assault, VA has established special procedures for evidentiary development. These procedures, which became effective in February 1996, take into account the fact that since personal assault is an extremely 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. These procedures thus acknowledge the difficulty veterans face in establishing the occurrence of the stressor through standard evidence, and the need for development of alternate sources of evidence. See Manual M21-1, Part III, paragraph 5.14c (Feb. 20, 1996) (substantially enlarging on the former Manual M21-1, Part III, paragraph 7.47c(2) (Oct. 11, 1995)). Alternate sources that may provide credible evidence of an in-service personal assault include medical or counseling treatment records following the incident, military or civilian police reports, reports from crisis intervention or other emergency centers, statements from confidants or family, copies of diaries or journals, or behavior changes documented or observed at the time of the incident, such as obsessive behavior at the time of the incident, pregnancy tests, increased interest in test for sexually transmitted diseases, termination of primary relationships, or alcohol and drug abuse. Evidence that documents any such behavioral changes may require interpretation by a VA neuropsychiatric physician to determine whether such evidence bears a relationship to the medical diagnoses. See M21-1, Part III, para. 5.14(c)(9). Furthermore, these provisions recognize that the standard PTSD stressor letter may be inappropriate for this type of PTSD claim, and thus state that if the claimed stressful incident is a personal assault, a stressor development letter specifically tailored for personal assault cases should be sent to such veterans. See M21-1, Part III, para. 5.14(c)(6). The Court has held that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault are substantive rules which are the equivalent of VA regulations, and are binding on VA. See YR, 11 Vet. App. at 398-99; Patton, 12 Vet. App. at 272. In the present case, the veteran claimed that her rape occurred in February 1968 while she was stationed in Saigon. She described the rape as occurring at either 7:00 a.m. or 7:00 p.m. She was accosted at knifepoint outside of her hotel room and forced into the room. The rapist wore camouflage make-up and was a serviceman. At the time, she believed that he was black, but after seeing her son, she realized that he must have been white. During the rape, her knee was bruised by the rapist's belt buckle. Shortly after the rape, the veteran left Vietnam to visit her dying father. She subsequently was discharged from service due to her pregnancy. The veteran's service medical records verify that she was pregnant at the time of her separation examination in May 1968. The records contain no complaints or findings regarding a rape, assault, or injury. The records also contain no complaint or diagnosis of PTSD, depression, or other psychological symptomatology. The veteran submitted hospital records that verified that her son, M. A. H., was born in November 1968. The father was identified as F. H., her husband. The RO, in compliance with the applicable law and rules, requested that the veteran provide alternative information to verify her claimed sexual assault. However, the veteran stated that she never reported the rape until January 1998 when she told a VA physician. The veteran reported that the day following the rape, a female First Sergeant inquired as to what was wrong with the veteran. Although this woman had also been the veteran's Sergeant during boot camp, the veteran purportedly did not confide in her because of the onset of the Tet Offensive. The veteran never sought medical care or counseling and never confided in close family members or friends. The veteran testified that she still had not told her son or her husband of more than 20 years. Therefore, the record is devoid of medical or counseling treatment records following the incident, military or civilian police reports, reports from crisis intervention or other emergency centers, statements from confidants or family, lay statements, or medical or counseling notes to verify the occurrence of the rape. The veteran further stated that the alleged rape did not affect her work performance, that she was never demoted or disciplined, and that she did not request a change of duty assignment. The veteran's DD 214 and service personnel records confirm that her rank was Sergeant (E-5) when discharged and that she received the Good Conduct Medal and was recommended for reenlistment. The veteran specifically informed the RO that she never suffered alcohol or substance abuse or obsessive behavior. She did not undergo a pregnancy test or testing for sexually transmitted diseases following the rape. She did not develop a disregard for military or civilian authority, and she did not have unexplained economic or social behavior changes. In addition, according to private and VA treatment records, and the October 1998 VA examination, the veteran did not develop PTSD symptomatology until the early 1990's and did not seek any type of psychological treatment until 1997. Finally, a review of the medical evidence shows that Barry Rubin, D.O., submitted letters in August and October 1997, and October 1998. He related that the veteran complained of various symptoms, such as nightmares and flashbacks, that she related to her experiences in Vietnam. Dr. Rubin did not state that the veteran had reported a rape, and he found that she met several diagnostic criteria for depression. The veteran was diagnosed with PTSD in a January 1998 VA clinical note and following an October 1998 VA examination. Letters from Brown County Counseling in March and August 1998, and August 1999, also diagnosed the veteran with PTSD due to her experiences in Vietnam. However, these diagnoses were made entirely upon the self-report of unverified stressors. As discussed above, a diagnosis of PTSD, related to service, which is based on an examination which relied upon an unverified history is inadequate. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Based upon the above findings, the Board must hold that a preponderance of the evidence is against service connection for PTSD. The record contains absolutely no evidence that verifies or corroborates the veteran's alleged rape. As explained above, in noncombat situations, the Board cannot grant service connection for PTSD based solely upon the statements of the veteran. In the present case, the record contains no complaint or report of the rape or of PTSD symptomatology by the veteran until nearly 30 years following the alleged rape. As the veteran told no one about the rape and received no treatment following the rape, there is no possibility of obtaining evidence to substantiate the veteran's claim. Moreover, as the veteran apparently did not suffer any detriments to her career, health, or personal relationships following the alleged rape, verification of the sexual assault can not be accomplished by alternative means. In the absence of evidence which in some way verifies or corroborates the veteran's account of one of her stressors, the Board finds that any diagnosis of PTSD which is based on an unverified stressor is unreliable and will not be accepted as evidence of a current disability that is related to service. As such the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for PTSD. Accordingly, the benefit sought on appeal is denied. ORDER Service connection for PTSD is denied. RAYMOND F. FERNER 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.