Citation Nr: 0209943 Decision Date: 08/15/02 Archive Date: 08/21/02 DOCKET NO. 97-28 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Dillon, Associate Counsel INTRODUCTION The veteran served on active duty from November 1970 to November 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained, and the veteran has been properly notified of the elements necessary to grant his claim for the benefits sought. 2. The evidence of record does not show the incurrence of any in-service stressor to support PTSD related to military service. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's service medical records show no complaints or findings of psychiatric abnormality at the time of enlistment, during service, or at the time of discharge. These records reflect diagnoses and treatment of physical injuries. Physicians did not document the veteran's mental state or behavior during these treatment sessions. In July 1996, the veteran filed a claim for entitlement to service connection for PTSD based on in-service assault and sexual abuse. VA medical records from 1986 to 1999 show diagnosis and treatment for depression, anxiety, and alcohol dependence. Assessments revealed unemployment, divorce, family relations, lack of independent housing, and recovery from alcohol dependence as contributing psychosocial and environmental factors related to the diagnosed mental disorders. There is no mention by either the veteran or his examining physicians of PTSD or a history of sexual abuse or assault. A December 1996 statement from the veteran alleges that from November 1970 to February 1971 his drill sergeant constantly harassed him beyond the scope of the drill sergeant's normal duties, such as locking the veteran in the nude into a gear locker for hours at a time. The veteran also alleged that the drill sergeant frequently initiated forced sexual contact during the three-month period of boot camp training. In the December 1996 statement, the veteran also reported a history of VA treatment in Houston dating back to February 1986. He stated that the drill sergeant was eventually imprisoned for sexual misconduct as a result of an incident report filed by a fellow boot camp recruit. The veteran stated he testified at the drill sergeant's court martial. In a June 1998 administrative decision, the RO determined the veteran's service records were unavailable. In October 2000, the Office of the Staff Judge Advocate General (JAG) at Camp Pendleton, California verified that they did not have evidence of the drill sergeant's court martial and that such information, if it exists, would have been archived in Washington, DC by the Department of the Navy. In February 2001, the Department of the Navy informed the RO that a search of archived records revealed no court martial resulting in punitive discharge for a sergeant as named by the veteran. The Department of the Navy further noted that if the drill sergeant in question was in fact tried by court martial but did not receive a punitive discharge, then no court martial records would be available because military instruction provides that such documents will be retained for only 15 years and then destroyed. Criteria The United States will pay compensation to any veteran disabled by disease or injury incurred in or aggravated by active military service, who was discharged or released under conditions other than dishonorable from the period of service in which the disease or injury was incurred, provided the disability is not the result of the person's own willful misconduct. 38 U.S.C.A. § 1110 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303. The CAVC has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for disease that is diagnosed after discharge from military service, when all of the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d) (2001); see Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2001). To show 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The CAVC has also reiterated that, alternatively, either or both of the second and third elements can be satisfied, under 38 C.F.R. § 3.303(b) (2001), by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. McManaway v. West, 13 Vet. App. 60, 65 (1999) (citing Savage v. Gober, 10 Vet. App. 488, 495-97). The CAVC has further determined chronicity was not demonstrated when the sole evidentiary basis for the asserted continuous symptomatology was the sworn testimony of the appellant himself and when "no" medical evidence indicated continuous symptomatology. McManaway, 13 Vet. App. at 66. In Voerth v. West, 13 Vet. App. 117 (1999), the CAVC held that the appellant had not submitted medical evidence providing a nexus between an in-service injury and a current disability. The CAVC held that where a claimant's personal belief, no matter how sincere, was unsupported by medical evidence, the personal belief cannot form the basis of a claim. The CAVC stated that it clearly held in Savage that Section 3.303 does not relieve a claimant of the burden of providing a medical nexus. Rather, a claimant diagnosed with a chronic condition must still provide a medical nexus between the current condition and the putative continuous symptomatology. Until the claimant presents competent medical evidence to provide a relationship between a current disability and either an in-service injury or continuous symptomatology, the claimant cannot succeed on the merits of the claim. Voerth, 13 Vet. App. at 120. The regulation pertaining to claims for service connection for PTSD was revised during the course of this appeal. See 64 Fed. Reg. 32807-32808 (1999). Pursuant to Karnas, supra, where a law or regulation changes after the claim has been filed or reopened and before administrative or judicial review has been concluded, the version more favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. Prior to March 7, 1997, governing regulations provided that service connection for PTSD required medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). On June 18, 1999, and retroactive to March 7, 1997, that regulation was amended to read as follows: Service connection for PTSD requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter, a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. If the diagnosis of a mental disorder does not conform to American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. 38 C.F.R. § 4.125(a). In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b); 38 C.F.R. §§ 3.303(a), 3.304; see Hayes v. Brown, 5 Vet. App. 60, 66 (1993). Where the claimed stressor is not related to combat, "credible supporting evidence" is required and "the appellant's testimony, by itself, cannot as a matter of law, establish the occurrence of a noncombat stressor." See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The requisite additional evidence may be obtained from sources other than the veteran's service records. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996), aff'd, 124 F.3d 228 (Fed. Cir. 1997) (table). In Cohen v. Brown, 10 Vet. App. 128 (1997), the CAVC clarified the analysis to be followed in adjudicating a claim for service connection for PTSD. The CAVC pointed out that VA has adopted the fourth edition of DSM-IV in amending 38 C.F.R. §§ 4.125 and 4.126. See 61 Fed. Reg. 52695-52702 (1996). Therefore, the CAVC took judicial notice of the effect of the shift in diagnostic criteria. The major effect is that the criteria have changed from an objective ("would evoke ... in almost anyone") standard in assessing whether a stressor is sufficient to trigger PTSD, to a subjective standard. The criteria now require exposure to a traumatic event and response involving intense fear, helplessness, or horror. The question of whether a claimed stressor was severe enough to cause PTSD in a particular individual is now a clinical determination for the examining mental health professional. See Cohen, supra. Nothing in Cohen, however, negates the need for a noncombat veteran to produce credible corroborating and supporting evidence of any claimed stressor used in supporting a diagnosis of PTSD. Id.; Moreau v. Brown, 9 Vet. App. 389, 395 (1996). The corroboration may be by service records or other satisfactory evidence. See Doran v. Brown, 6 Vet. App. 283, 289 (1994). In Doran, a veteran's service records had been lost due to fire; however, his account of in-service stressors was corroborated by statements from fellow servicemen. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2001). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West Supp. 2002). Analysis Preliminary Matter: Duty to Assist There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims (CAVC) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. Judicial case law is inconsistent as to whether the new law is to be given retroactive effect. The CAVC has held that the entire VCAA potentially affects claims pending on or filed after the date of enactment (as well as certain claims that were finally denied during the period from July 14, 1999, to November 9, 2000). See generally Holliday v. Principi, 14 Vet. App. 280 (2001); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). That analysis would include cases that had been decided by the Board before the VCAA, but were pending in the CAVC at the time of its enactment. However, the United States Court of Appeals for the Federal Circuit (CAFC) has recently held that only section 4 of the VCAA (which eliminated the well-grounded claim requirement) is retroactively applicable to decisions of the Board entered before the enactment date of the VCAA, and that section 3(a) of the VCAA (covering duty-to-notify and duty-to-assist provisions) is not retroactively applicable to pre-VCAA decisions of the Board. Bernklau v. Principi, No. 00-7122 (Fed. Cir. May 20, 2002); See also Dyment v. Principi, No. 00-7075 (Fed. Cir. April 24, 2002). Although the CAFC appears to have reasoned that the VCAA may not retroactively apply to claims or appeals pending on the date of its enactment, the CAFC stated that it was not deciding that question at this time. In this regard, the Board notes that VAOPGCPREC 11-00 appears to hold that the VCAA is retroactively applicable to claims pending on the date of its enactment. Further, the regulations issued to implement the VCAA are expressly applicable to "any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). Precedent opinions of the chief legal officer of the Department, and regulations of the Department, are binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991). Therefore, for purposes of the present case, the Board will assume that the VCAA is applicable to claims or appeals pending before the RO or the Board on the date of its enactment. VCAA, Pub. L. No. 106-475, §7(b), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions). On August 29, 2001, the final regulations implementing the VCAA were published in the Federal Register. The portion of these regulations pertaining to the duty to notify and the duty to assist are also effective as of the date of the enactment of the VCAA, November 9, 2000. 66 Fed. Reg. 45,620, 45,630-45,632 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159). Where the law and regulations change while a case is pending, the version more favorable to the appellant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Board is of the opinion that the new duty to assist law has expanded VA's duty to assist (e.g., by providing specific and expanded provisions pertaining to the duty to notify), and is therefore more favorable to the veteran. Accordingly, the amended duty to assist law applies. See Holliday v. Principi, 14 Vet. App. 280 (2001). The Board has also taken into account the heightened duty in cases such as this where the veteran's service personnel records were either lost or destroyed while in the government's possession. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The CAVC has stressed the necessity of complete development of the evidence if a PTSD claim is based on an alleged personal assault. See Patton v. West, 12 Vet. App. 272, 276 (1999). In Patton, the CAVC 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 CAVC 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 CAVC qualified prior statements contained in other CAVC 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 CAVC stated that these quoted categorical statements were made in the context of discussing PTSD diagnoses other than those arising from personal assault. See Cohen, supra; Moreau v. Brown, 9 Vet. App. 389 (1996). To that extent, the CAVC 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 CAVC 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 CAVC clearly stated that any such requirement would be inconsistent with the benefit of the doubt doctrine applicable where the evidence is in equipoise. Patton, 12 Vet. App. at 280. The Board concludes VA has met its duty to assist in light of the heightened requirements in this case triggered by the lost personnel records and nature of the PTSD stressor. O'Hare, supra; Patton, supra. The veteran's service medical records are in the claims file, and his service personnel records have been administratively determined to be lost or destroyed. He identified VA treatment, and pursuant to the Board's September 2000 remand, VA has obtained and associated with the claims file a copy of all relevant and identified records. The RO sent an initial development letter in December 1996. Beginning in March 1997, the RO began its search for court martial records, which purportedly would assist in verifying the veteran's in-service stressor. Ultimately, a negative response was received in the form of a letter from JAG headquarters stating that no such record exists of a court martial of the veteran's drill sergeant. Aside from the alleged court martial of his drill sergeant, the claims file contains no additional information that would allow for further development of alternative sources of information regarding the claimed history of assault and sexual abuse. The veteran has only provided the name of the original complainant in the case against the drill sergeant, and the RO's search for evidence with this reported service member's name was unproductive. The RO's October 2000 request for names, dates, or other pertinent information has yielded no additional information from the veteran. Further attempts to verify the claimed stressor would be futile. The Board stresses that the Board's September 2000 remand and subsequent RO development has advised the veteran of evidence from sources other than the veteran's service records that may help prove the stressor occurred. See 67 Fed. Reg. 10,330, 10,332 (March 7, 2002). At this point, the claim hinges on whether there is credible supporting evidence that the claimed in-service stressor occurred, and this question cannot be resolved by a VA examination, which would potentially provide nothing more than a current finding of PTSD. This would have no probative value in the absence of a verified stressor. See Moreau, supra. By virtue of the various development letters, as well as the information provided in the April 1997 rating decision and supplemental statements of the case dated in February 1998, October 1999, and March 2002, the veteran has been informed of the information necessary to substantiate the claim, as well as what information was specifically needed from him. The veteran has similarly been notified of his procedural and appellate rights. During the appeal process, he has exercised several of these rights. For instance, he has been afforded the opportunity to present information and arguments in favor of his claim, and he and his representative have in fact done so. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). A videoconference hearing was also scheduled, but the veteran subsequently withdrew his request for a hearing. This is not a case in which the Board has considered the VCAA in the first instance. By virtue of the March 2002 supplemental statement of the case, the RO has readjudicated the current claim since the enactment of the VCAA. The CAVC has stated, "[t]he VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims." Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). In the circumstances of this case, a remand 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). Service Connection The evidence of record does not establish that the veteran was exposed to a stressor in service. In the present case, he has reported his claimed stressor as a three-month period of abuse; however, he has provided no corroborating evidence to support the assertion that he was ever sexually abused or assaulted by his drill sergeant. In light of Dizoglio, supra, and based on the evidence received, the occurrence of this alleged stressor is not supported by credible evidence and cannot form the foundation of his claim for PTSD. The veteran has contended that there is official documentation of his claimed in-service stressor in the form of legal records of the drill sergeant's court martial for sexual abuse and assault. As explained above in the discussion of the duty to assist, there is no competent evidence that his drill sergeant was tried by court martial, let alone that the drill sergeant was convicted for sexual abuse and assault of the veteran. In Doran, supra, the veteran's service records had been lost by fire, but in that case the account of in-service stressors was corroborated by statements from fellow servicemen. In this case, the RO determined the veteran's personnel records had been lost or destroyed, but the veteran has not provided any corroborating evidence in its place, to include statements from fellow servicemen. The veteran's statements indicate he was one of seven recruits named as "defendants" in the trial against his drill sergeant. The claims file, however, contains no corroborating statements from the other six named recruits. As discussed above, the veteran has only provided the name of one other involved service member, and that named failed to assist in developing the claim. There is no corroborating statement in the evidentiary record from this individual. The record contains significant VA treatment for depression, anxiety, and alcohol dependence. Despite the documented 13- year history of post-service treatment for mental disorders, these records fail to mention a history of sexual abuse or assault. Instead, his diminished psychiatric functioning has been attributed to a variety of other factors, such as alcoholism, unemployment, and divorce. Likewise, the service medical records show no complaints of sexual abuse or assault, nor do they note any behavioral changes in the veteran during the period in which the stressor is claimed to have occurred. See MANUAL M21-1, Part III, 5.14(c). In sum, the only reported in-service stressor - that the veteran was assaulted and sexually abused by his drill sergeant during boot camp - is uncorroborated by the evidence of record. There is no credible evidence to support the assertion that he was assaulted or sexually abused, and the limited information provided by him failed to even establish that his drill sergeant was convicted for any crime. Parenthetically, the Board notes that the post-service medical records, in addition to not showing any history of sexual abuse or assault, fail to document any PTSD findings or treatment. A preponderance of the evidence is against the veteran's claim of entitlement to service connection for PTSD. Gilbert, supra; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for PTSD is denied. RONALD R. BOSCH 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.