Citation Nr: 0207102 Decision Date: 07/01/02 Archive Date: 07/10/02 DOCKET NO. 99-09 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active service from November 1945 to March 1947. This appeal arises from an April 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, that denied entitlement to service connection for posttraumatic stress disorder (PTSD). The veteran has appealed to the Board of Veterans' Appeals (Board) for favorable resolution. The RO issued the above-mentioned appealed rating decision on April 9, 1996. On April 14, 1997, the RO received and date- stamped a VA Form 21-4138, Statement in Support of Claim, which was treated as a notice of disagreement (NOD). The postmark of the NOD is not of record; however, the NOD itself is dated April 9, 1997. The RO subsequently sent a letter to the veteran explaining that his NOD was untimely as it was received more than one year from April 9, 1996. See 38 C.F.R. § 20.302. An RO decision that has become final is not appealable to the Board. Finality is determined according to when the decision is no longer appealable. 38 U.S.C.A.§ 7105(c). An NOD postmarked before the expiration of the one year appeal period will be accepted as timely. 38 U.S.C.A. § 7105(b); 38 C.F.R. § 20.305. According to 38 C.F.R. § 20.305, where no postmark is of record, it is assumed to be 5 days prior to the date of receipt. In counting this 5-day period, Saturday, Sunday, and holidays are excluded. The Board notes that April 14, 1997, fell on a Monday. Therefore, excluding Saturday and Sunday, April 12 and 13, the presumed postmark date of the NOD could be Monday, April 7, 1997; however, because the NOD itself is dated April 9, 1997, the Board will accept that date as the date of mailing. Because April 9, 1997 is the last day on which the NOD could accepted as timely, it was timely and the Board has jurisdiction over the April 1996 RO rating decision. The RO issued a statement of the case in March 1999 and the veteran submitted a timely substantive appeal in April 1999. The veteran testified before the undersigned member of the Board in January 2002. FINDINGS OF FACT 1. The veteran did not participate in combat. 2. A diagnosis of PTSD related to noncombat stressors has been given. 3. The record includes competent evidence that supports the veteran's assertion of the occurrence of a stressful event of a personal assault, and medical evidence of a nexus between 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 active military 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, (VCAA) Pub. L. No. 106- 475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5103, 5103A, 5107 (West Supp 2001), requires VA to assist a claimant in developing all facts pertinent to a claim for VA benefits, including obtaining a medical opinion and providing notice of the need to submit any information, and any medical or lay evidence that is necessary to substantiate the claim. VA has issued regulations to implement the VCAA (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board finds that, in this case, the requirements of the VCAA and implementing regulations have been met. The appellant was afforded a personal hearing before the undersigned member of the Board and the transcript is of record. The RO has issued a statement of the case, and supplemental statement advising the veteran of what must be demonstrated to establish service connection for PTSD. A development questionnaire was sent to assist in developing the claim. See Patton v. West, 12 Vet. App. 272, 279 (1999) (where the Court noted that VA's use of certain PTSD questionnaires might be inappropriate for this type of PTSD claim). In light of the assistance provided thus far and because the Board will grant the appeal, no further notice or assistance in acquiring additional evidence is required by the new statute and regulations. I. Factual Background The veteran's service medical records (SMRs) are negative for any psychiatric disorder. A medical report notes that he was admitted to Fort Leonard Wood's Hospital on December 20, 1945, for treatment for tear gas poisoning during training. The report notes that the veteran entered a tear gas chamber on that date. He had slight lacrimation and irritation of nasal mucosa with resultant mild rhinitis. He returned to duty on December 22, 1945. Another report notes that he had failed to adjust his gas mask properly and received two to three minutes' exposure. Another report notes that the diagnosis was gas poisoning. His separation examination report is negative for any relevant abnormality. In August 1965, the veteran submitted a claim for benefit for head, body and leg injuries that reportedly occurred in January 1946. In October 1965, the RO established service connection for a small cyst on the abdomen. In October 1967, VA hospitalized the veteran for complaints of joint and muscle pains that reportedly had been occurring since 1947. Nothing definitive was detected during examination and an orthopedist felt that the symptoms represented a psychophysiological musculoskeletal reaction. A March 1968 VA hospital report notes that the veteran was admitted for a swollen left ankle. He seemed rather hostile and reported that he had been gassed at basic training in 1945. He claimed that pain in all joints began at basic training and had continued to the present. A rheumatologist felt that the veteran had recurring synovitis of unknown cause with a great deal of emotional overlay. The veteran continued to complain of pain in multiple joints at the time of discharge. The veteran submitted a claim for service connection for PTSD in October 1995. He reported both physical and mental abuse during active service. In a reply letter dated in October 1995, the RO requested that the veteran submit evidence that his PTSD had existed continuously since the date of his discharge from active service. The RO also requested additional details of his claimed stressors. A March 1996 VA general medical examination report reflects hearing loss, dizzy spells, indigestion, prostate problems, knee, shoulder, and neck pain, and vision loss. A March 1996 VA PTSD examination report reflects that the veteran reported several stressful incident that occurred at Fort Bliss, Texas. First, he felt that he was treated prejudicially for being a Mexican. Second, he was gassed and assaulted in a gas chamber, by unknown individuals who ripped off his gas mask and kicked him in the groin. He reportedly was left in the chamber for several hours and had to be hospitalized because of the incident. Third, he was harassed by a supervisor and had to salute a flag 1,000 times. Fourth, he was attacked by two individuals who held him and bent his thumb backwards. He also reported that later, while stationed in France, he witnessed the murder of prisoners-of- war (POWs), although that incident was not overly traumatic. Overall, while at basic training, he reportedly felt helpless, hopeless, and locked in. Upon discharge from active service, he began having disturbing dreams about being trapped in the gas chamber and being held captive by that supervisor. He had night sweats and feared that he was going to die. He worked as a laborer for several years following active service. During the PTSD examination, he reported several somatic complaints, such as neck pain, that had no apparent etiology. The examiner noted that the veteran could not talk about the traumatic events without becoming very tearful. The examiner noted increased arousal, difficulty sleeping, poor concentration, and hypervigilance around other people. The examiner gave two Axis I diagnoses: first, PTSD, mild to moderate; and, second, depressive disorder, not otherwise specified. Rheumatoid arthritis was given as an Axis III diagnosis. In a letter to the RO dated in December 1995, the veteran gave additional details of his stressors. He reported altercations with his supervisor during basic training, such as being refused permission to go to sick call and being forced to pick cigarette butts from the graveled areas for three hours, which caused bruised knees. He reported that three men in the barracks assaulted him and that while being held down, his thumb was twisted backwards. He reported that he had to salute a flagpole a thousand times while a corporal stood by and counted. His arm hurt for days afterwards. He had to fill a bucket with gravel and run around the barracks one hundred times. He felt he was discriminated against at basic training because he was of Mexican descent. He reported that while in the gas chamber, someone ripped off his gas mask and kicked him in the crotch, causing him to pass out on the floor. He was left inside for about 45 minutes. He reported that he currently received psychiatric care from a Dr. Nguyen, in Amarillo. He attached a copy of his service medical records. One medical record bears a date stamp as having been received at the RO in December 1995. The veteran's former spouse reported that he had flashbacks from the time that she first knew him in the 1960's. In April 1996, the RO denied service connection for PTSD on the basis that the record did not show the required stressors and that the PTSD diagnosis was not supported by the evidence of record. The decision notes that the veteran had not responded to an October 1995 request for more information about his claimed stressors. The decision also notes that the Army had reported that the veteran's official personnel file was not available. In April 1997, the veteran submitted an NOD and sent a duplicate copy of his stressors that he had submitted in December 1995. In July 1997, the RO received VA outpatient treatment reports dated in the 1990s from Amarillo. In August 1997, the RO determined that new and material evidence to reopen the claim had not been submitted. In response, in April 1998, the veteran submitted two VA mental health treatment reports, dated in 1997 and 1998, from Amarillo, signed by a Dr. Nguyen. Each reflects a diagnosis of PTSD. The veteran underwent a VA PTSD examination in May 1998. The report notes that the previous VA PTSD examination report described the stressful incident in the gas chamber. He also described an incident in France where some POW's had been killed or injured in an explosion. Other history and symptoms were described. The Axis I diagnosis was PTSD, chronic. In March 1999, the RO sent a letter and a PTSD development questionnaire to the veteran requesting additional information concerning the personal assault that had precipitated his PTSD. The veteran responded with some additional details concerning his stressors. He also reported that during the winter in France, he saw hungry women and children picking through Army garbage for food. He reported that in France, a truck carrying welding gas exploded, killing three of four POWs, and that he caught a boot with a foot in it. He later indicated that the explosion occurred in Leon, France, during the summer of 1946. In July 2000, the Department of the Army reported that the reported stressors could not be verified due to a lack of specific information concerning the veteran's unit of assignment in France. In January 2002, a 24-year acquaintance of the veteran reported that on at least 30 occasion over the past 24 years the veteran reported extreme joint pain, nightmares of a beating suffered during active service, and a gas chamber incident. In January 2002, a Vet Center counselor reported that the veteran had related those stressful incidents, which had occurred in France. In January 2002, the veteran testified before the undersigned member of the Board that he was gassed at Fort Leonard Wood and also kicked and abused by a Sergeant while there. He testified concerning stressful incidents that occurred in France. He gave accounts of his current symptoms and noted that his own cousin witnessed the gassing, but that his cousin was deceased. II. Legal Analysis In general, service connection may be awarded for disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "Direct" service connection may be established for a current disability when the evidence shows affirmatively that the disability resulted from injury or disease incurred (or aggravated) during active service. Id. "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The provisions of 38 C.F.R. § 3.304(f) govern service connection for PTSD. This regulation was revised effective March 7, 1997. See 64 Fed. Reg. 32, 807 (June 18, 1999). The veteran's current claim was filed prior to that time, thus, both versions are potentially applicable; however, either version appears to be sufficient in this case, as there is no question that the veteran suffers from PTSD. Therefore, the Board will focus on the revised version. Under the revised version of 38 C.F.R. § 3.304(f), 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. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to combat, then, 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, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See also 38 U.S.C.A. § 1154(b); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Court has stressed the necessity of complete development of the evidence if a PTSD claim is based on an alleged personal assault. Patton, 12 Vet. App. at 276. In Patton, the Court pointed out that there are special evidentiary development procedures for PTSD claims based on personal assault contained in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c) (Feb. 20, 1996), and former MANUAL M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). The general M21-1 provisions on PTSD claims in 5.14 require that in cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence. MANUAL M21-1, Part III, 5.14(b)(2). As to personal-assault PTSD claims, more particularized requirements are established regarding the development of "alternative sources" of information as service records may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. MANUAL M21-1, Part III, 5.14(c). Further, the provisions of subparagraphs (7) and (8) indicate that "[b]ehavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor", and that "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes" and that "[e]vidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." When read together, the Court states that the subparagraphs show that in personal-assault cases the Secretary has undertaken a special obligation to assist a claimant in producing corroborating evidence of an in-service stressor. Also in Patton, the Court qualified prior statements contained in other Court decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'," and that "[a]n opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of the stressor." The Court stated that these quoted categorical statements were made in the context of discussing PTSD diagnoses other than those arising from personal assault. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). To that extent, the Court found that the above categorical statements in Cohen and Moreau, and other cases where that may have been in accordance, are not operative. In addition, the Court noted that in two places MANUAL M21-1, Part III, 5.14, appeared improperly to require that the existence of an in- service stressor be shown by "the preponderance of the evidence." The Court clearly stated that any such requirement would be inconsistent with the benefit of the doubt doctrine which is applicable where the evidence is in equipoise. Patton, 12 Vet. App. at 280. In this case, the veteran has not claimed that he participated in combat and the record does not otherwise indicate such service. The Board finds that the veteran is a noncombat veteran. The record in this case shows that a PTSD diagnosis was first rendered in March 1996. That and subsequent PTSD diagnoses assume that the veteran's reported personal assault occurred. The issue to be resolved is whether there is credible supporting evidence of the personal assault or other non-combat-related stressors alleged by the veteran. 38 C.F.R. § 3.304(f). The question is one of fact to be resolved by VA adjudicators alone. Wilson v. Derwinski, 2 Vet. App. 614 (1992); Wood v. Derwinski, 1 Vet. App. 190 (1991). The veteran's often mentioned personal assault allegedly occurred in a gas chamber while receiving gas mask training and tear gas orientation. Another assault allegedly occurred in the barracks; however it does not appear to be necessary that we verify that it occurred. Official records certainly corroborate the gas chamber training, as a service medical record indicates that the veteran was admitted shortly thereafter to the Fort Leonard Wood hospital for gas poisoning. Although this does not corroborate the assault, the Board concludes that the medical reports certainly indicate that something irregular occurred in the gas- training chamber. The Board makes this conclusion on the assumption that gas chamber training, even with an improperly adjusted mask, does not result in two days of hospitalization for gas poisoning. Again, because the veteran certainly was hospitalized for two days for gas poisoning, this appears to be more than a minor tear gas reaction. That a training incident could results in two days hospitalization for gas poisoning indicates to the Board that something went seriously wrong in there and thus, the veteran's account of being assaulted becomes more credible. Although the veteran's accounts of how much time he spent in the gas chamber appear to vary, the Board recognizes no one was timing this incident and therefore the veteran's sense of time might have been distorted. What seemed like hours might have been minutes. Therefore, the Board does not find the veteran's credibility to be in question. The Board also notes that the PTSD examiner might have mis-recorded certain details. An example of such is the fact that the 1996 PTSD examination report reflects that the incident occurred at Fort Bliss, when, in fact, the veteran and the service medical records both indicate that the incident occurred at Fort Leonard Wood. The Board also notes that lay witnesses have reported that the veteran repeated this incident to them as well. In fact, according to the lay witnesses, it appears that he had mentioned the incident decades before he ever submitted a PTSD claim for it. Moreover, a 1968 VA hospital report even mentions the gassing event, albeit without the personal assault details. Although the veteran reported other stressors, the Board finds that there is corroborating evidence that an incident did occur in the gas chamber in 1945. Also, considering that the VA PTSD examiner noted that the veteran could not speak of the incident without crying, and considering the tenets of the Patton case regarding the special emphasis to be placed on the examiner's opinion, the Board finds that the veteran has submitted sufficient evidence to place the claim in equipoise. Applying the benefit of the doubt doctrine, the Board will resolve the issue in favor of the veteran. See 38 U.S.C.A. § 5107(b) (West 1991); § 5107(b) (West Supp 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). Thus, the Board finds that the regulatory requirements for service connection for PTSD based on personal assault are met in this case. The claim must therefore be granted. ORDER Service connection for PTSD is granted. LAWRENCE M. SULLIVAN 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.