Citation Nr: 0212498 Decision Date: 09/19/02 Archive Date: 09/26/02 DOCKET NO. 00-09 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a psychiatric disability, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and wife ATTORNEY FOR THE BOARD W. R. Steyn, Counsel INTRODUCTION The veteran had active military service from June 1975 to October 1977. This appeal arises before the Board of Veterans' Appeals (Board) from an October 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which denied the veteran's claim seeking entitlement to service connection for a psychiatric disability, to include PTSD. FINDINGS OF FACT 1. The veteran has a diagnosis of PTSD; the examiner has related the veteran's PTSD to an in-service personal assault during service. 2. The service medical records show that the veteran was seen early in the morning of July 31, 1977, disoriented, and complaining that he was attacked by 3 people; his work performance deteriorated to the point where he was separated from service shortly afterwards. CONCLUSION OF LAW Service connection for PTSD is granted. 38 U.S.C.A. § 1131 (West Supp. 2001); 38 C.F.R. § § 3.303; 3.304(f) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background Service medical records show that on the veteran's report of medical history form from November 1974, the veteran reported that he had sustained a head injury in grade school, but that it had been mild and he was not hospitalized. The veteran was seen for a small contusion on his left leg in June 1975. He was seen for right thigh muscle pain later the same month. He was seen for shin splints in June 1975. He was seen for heat rash in July 1975. He was seen for low back pain in September 1975, and underwent physical therapy for it. He was seen for enuresis in February 1976 and again in November 1976. It was noted that the veteran had a lifelong history of this problem, and that the problem seemed worse when he was under increased stress. He was seen after being struck on the right side of his nose in July 1976. He was seen for possibly fracturing his right foot in April 1977. The veteran was seen in May 1977 complaining of pain and swelling in his left testicle resulting from pulling metal. Assessment was possible mild epididymis, no hernia. The veteran was counseled in July 1977 regarding a problem with bedwetting. He was seen for his enuresis in June and July 1977, and the veteran was given an apparatus to assist with the problem. At an examination in July 1977, the veteran complained of bed-wetting. He indicated that he had been hospitalized at Ft. Leonard Wood for nose straightening. The veteran was brought into the emergency room at the Health Clinic in Kitzingen, on July 31, 1977, at 12:50 A. M., complaining that he got attacked by 3 people. His pupils were dilated, and his ears were clogged. He was disoriented, and the examiner commented that the veteran had possible shock with hysteria. He was seen in the emergency room at the US Army hospital in Wuerzburg, Germany, at 2 A. M. on August 1, 1977, complaining that the index finger on his right hand hurt and that there was a tender spot on the left side of the trunk of his body. The veteran underwent a psychiatric evaluation in August 1977. The examiner opined that the veteran's enuresis was symptomatic of anxiety arousing problems in his developmental years. The examiner concluded that it was noteworthy that the veteran's presenting problem existed prior to his enlistment. He was seen for a sore bruised nose in September 1977. It was noted that the veteran had been drinking and retreated from a fight that had been started by a couple of his buddies. Service personnel records show that a memorandum was issued in September 1977, approving the veteran for separation from service due to unsuitability. Thereafter, the veteran was separated from service on October 17, 1977. A memorandum dated that same day instructed that the reason for the veteran's separation was "unsuitability-apathy defective attitude or inability to expend effort constructively." A hospitalization record from the Mental Health Institute was submitted from May 1979. It shows that the veteran was hospitalized from March 22, 1979, to May 1, 1979. It was noted that the veteran had abused alcohol and marijuana excessively in the past. It was noted that the veteran attempted suicide with an overdose of aspirin in 1976. Initial diagnosis was schizophrenia, latent type; alcohol addiction; and drug abuse, pot. Discharge diagnosis was alcohol and drug abuse, marijuana. The veteran was prescribed Stelazine. At a February 1986 examination by the osteopathic doctor, P.F., it was reported that the veteran had an old injury back in boot camp when he was stomped and kicked while crawling on the ground. At a May 1986 VA psychiatric examination, the veteran reported that while in boot camp in June 1975, the platoon sergeant kicked him in the back. He stated that at another time while in boot camp, he was also hit in the head without any loss of consciousness or any after effects. He reported that because of his bedwetting, he had a medical honorable discharge. He reported that he was hospitalized at the Independence Mental Health Institute in 1979 for marijuana related hallucinations. It was noted that in 1983, Primary Care referred him to psychology for his backache, and he was discharged from that clinic the same day with no further follow-ups. He denied any psychiatric treatment or hospitalizations otherwise. Regarding his bedwetting, he related it to intoxication, because during service he used to binge on alcohol in excess until he blacked out. Diagnostic impression was no major psychiatric illness; drug abuse, in remission; and alcohol dependence, in remission. At a May 1986 VA examination, the veteran stated that in 1975 while in basic training, he was hit with a boot by a drill instructor in the lower back and somewhere on the left side of his head. Service connection for a low back disability was denied in June 1986. In the veteran's June 1999 claim, he alleged that he was beaten and kicked in basic training by the instructors. He stated that he was terrified of them, and was always afraid of what they would do to him if they thought he messed up. He stated that he was abused and beaten. He wrote that he started to drink at this time just to get through the day. He wrote that he was sent to Germany and developed mental problems which caused him to be put out of service. In an August 1999 statement, the veteran wrote that he was kicked and beaten the first day of basic training by the drill sergeants "Douglas" and "Perrins". He stated that this happened about the 4th of June, at the training company that was E Company, at Ft. Leonard Wood, Missouri. He described getting off of trucks, and being forced to crawl on the concrete, and being kicked in the head, and having his back stomped on. He stated that they continued to crawl on the concrete and that when they crawled across the manhole covers, they received burns from the heat of the steel. He indicated that some people went on sick call, but he did not as he was told, he could not. He described an incident where he was hit over the head with an entrenching tool and had to be restrained. He stated that he was made to do pushups, and was not allowed treatment for being hit in the head. He stated that he started to drink in service just to get through it all. Treatment records were submitted from the Gannon Medical Center from 1999. Diagnosis in July 1999 was major depressive disorder, and PTSD, provisional. He was hospitalized in August 1999, and diagnosed with major depression. The veteran was afforded a hearing before the RO in April 2000. He described having to crawl on concrete during basic training when it was extremely hot. He stated that his drill sergeant kicked him in the head and stomped him in the back. He stated that he never wet the bed during boot camp. He stated that he was kicked in the head about 5 times when he would become semi-conscious. He testified that when he went to Germany, there were about 5 men in a dormitory, and they would pick on him for bed-wetting. He described sexual abuse at the hands of someone who spoke Spanish. He stated that he was in and out of blackouts at the time. He indicated that he attempted suicide during service by taking a whole bottle of Aspirin. He testified that he was taking medication from VA for his seizures. He testified that he never was seen for his suicide attempt in service, and that he never reported the sexual abuse to anyone during service. The veteran underwent a VA examination in December 2000. He stated that his PTSD was due to abuse in the military, a motor vehicle accident, the fact that his brother committed suicide, and the fact that when he was growing up, multiple family members were injured on the farm where they lived. He described being beaten up in basic training where he was kicked in the head and back and an officer stomped on his back. He said that this type of treatment happened to all the members of his unit, and that he was not singled out for this treatment. He stated that for disciplinary action, he and other members of his unit were at times required to do pushups until they could not continue or do sit-ups until their abdomens were sore. He also described being sexually abused while he was in Germany. He stated that he had been drinking heavily and blacked out. He indicated that one time he woke up while being sexually abused, and another time woke up just after being sexually abused. He stated that at least one of the episodes was perpetrated by another member of the military whom he did not know, but who spoke Spanish. He stated that he had been out at the service club drinking prior to the episode, but did not report these episodes of sexual abuse until July 1999. It was noted that the veteran had been hospitalized in March 1979 at the Mental Health Institute in Independence, Iowa. The examiner's impression was dysthymia, alcohol abuse in remission, marijuana abuse in remission; borderline and histrionic personality traits; and seizure disorder. The examiner commented that he did not find clear objective evidence to support a diagnosis of PTSD or sexual assault. The examiner commented that while the veteran reported two episodes of sexual assault while in the military, he admitted that both of these episodes were in the context of severe alcohol intoxication. The examiner commented that it was his understanding that these incidents would not "constitute a service connected were it to be founded." Regarding the etiology of the veteran's mental condition, the examiner commented that dysthymia was considered a lifelong, chronic condition and evidence suggested that the veteran exhibited symptoms consistent with dysthymia as early as the age of 13. In an April 2000 decision, the Social Security Administration (SSA) granted the veteran benefits. He was referred to the Gannon Center by Disability Determination Services. After psychological testing, the veteran was diagnosed with major depression, and PTSD. The veteran was afforded a video hearing before a member of the Board in July 2001. He described getting into fights in boot camp about 2-3 times per week. He described having a seizure disorder. He described being kicked and stomped on during boot camp. He stated that his seizures started in 1999. He described an incident of sexual trauma in a service club with a man who did not speak English. He stated that he had a blackout after that. He described another incident where he came out of a blackout and his pants were down. He stated that both incidents happened in Germany, but that he did not report the incidents. The veteran's representative noted the veteran's discharge papers which noted "apathy", and "defective attitude." An incident of sexual abuse prior to service was noted. The representative wondered whether the service medical records were complete. He noted that the veteran was in service until December, but that the last records were from August 31. The chairman noted several incidents of fighting in 1977. The veteran stated that the sexual attacks occurred in June or July of 1977 when he was in Germany. A mental health counselor at the Gannon Center submitted a letter in July 2001 in which he diagnosed the veteran with recurrent major depression, severe without psychotic features, and PTSD. The counselor listed stressors of being kicked in the head, neck, and back while being forced to crawl on concrete during basic training. He stated that he was told not to go to sick call. Another stressor was that the veteran felt he was sexually violated on a couple of occasions while in Germany. He felt that he was sodomized in Germany by the same perpetrator on both occasions. The veteran was seen at a VA Medical Center in June 2002 and diagnosed with a major mood disorder. Analysis As a preliminary matter, the Board notes that on November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), was enacted. Pub. L. No. 106-475, 114 Stat. 2096 (2000); see 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001). Among other things, the VCAA amended 38 U.S.C.A. § 5103 to clarify VA's duty to notify claimants and their representatives of any information that is necessary to substantiate the claim for benefits. The VCAA also created 38 U.S.C.A. § 5103A, which codifies VA's duty to assist, and essentially states that VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. Implementing regulations for the VCAA were subsequently enacted, which were also made effective November 9, 2000, for the most part. 66 Fed. Reg. 45,620 (Aug. 29, 2001) to be codified at 38 C.F.R. §§ 3.102, 3.159). The intended effect of the implementing regulations was to establish clear guidelines consistent with the intent of Congress regarding the timing and scope of assistance VA will provide to claimants who file a claim for benefits. 66 Fed. Reg. 45,620 (Aug. 29, 2001). Both the VCAA and the implementing regulations are applicable in the present case, and will be collectively referred to as "the VCAA." The Board finds that while the VCAA was enacted during the pendency of this appeal, and was not specifically applied by the RO, there is no prejudice to the appellant in proceeding with this appeal, because the requirements under the VCAA have been satisfied. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (when the Board addresses a matter not addressed by the RO, the Board must provide an adequate statement of reasons and bases as to why there is not prejudice to the appellant). In that regard, the Board finds that the RO notified the veteran of the reasons for its decision, as well as the laws and regulations applicable to his claim, in a Statement of the Case, and in several Supplemental Statements of the Case. In June 2002, the RO sent the veteran a statement explaining the provisions of VCAA. He was also asked to provide VA with information about other evidence that might be available, and he was told VA would assist him in obtaining additional evidence, such as private medical reports and reports from federal agencies. Moreover, the RO has satisfied the duty to assist the veteran in obtaining evidence relevant to his claim, and the Board is not aware of any relevant evidence that has not yet been obtained. The veteran has not identified any additional, relevant evidence that has not been requested or obtained. He has been examined by the VA in connection with his claim and he has not identified any additional, relevant evidence that has not been requested or obtained. In view of the extensive development that has been undertaken in this claim over a period of several years, further development is not needed to comply with VCAA. The veteran has been informed of the information and evidence needed to substantiate his claim, he has been made aware of how VA would assist him in obtaining evidence and information, and he has been scheduled for a VA examination. For the aforementioned reasons, there is no reasonable possibility that further assistance would aid in the substantiation of the claim. In short, the Board finds that the requirements under the VCAA have been met, and the Board will proceed with appellate disposition without further delay in the resolution of the claim. Under the applicable law and VA regulations, in order to establish service connection, the evidence must demonstrate that the current disability is the result of a disease or injury that either began in or was aggravated by service. 38 U.S.C.A. § 1131 (West Supp. 2001). 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 that combat, 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. 38 C.F.R. § 3.304 (f) (2001). The veteran has been diagnosed with PTSD by the Gannon Center, most recently in July 2001. His principal claimed stressors are based on personal assault. In this regard, the Court has noted that in claims for service connection for PTSD based on personal assault, VA has established special procedures for evidentiary development. Patton v. West, 12 Vet. App. 272, 277 (1999). 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 claimants face in establishing the occurrence of the stressor through standard evidence, and the need for development of alternate sources of evidence. See VA Adjudication Procedure Manual M21-1 (hereinafter 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). In addition, the Court in Patton stated that in two places, M21-1, Part III, para. 5.14(c)(3) and (9), appeared improperly to require that the existence of an in-service stressor be shown by "the preponderance of the evidence" and held that any such requirement was inconsistent with the benefit of the doubt doctrine found in 38 U.S.C. § 5107(b). Therefore the evidence need only be in relative equipoise to prevail on the question of the existence of the stressor. In addition, effective March 7, 2002, VA amended the regulations concerning the evidence necessary to establish the occurrence of a stressor in claims for service connection for PTSD resulting from personal assault. These new regulations partially divided and expanded 38 C.F.R. § 3.304(f), and require that VA not deny such claims without: (1) first advising claimants that evidence from sources other than a claimant's service medical records, including evidence of behavior changes, may constitute supporting evidence of the stressor; and (2) allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 67 Fed. Reg. 10330-32 (March 7, 2002) (to be codified at 38 C.F.R. § 3.304(f)(3)) . Specifically, this regulation provides the following guidance: If a post-traumatic stress disorder claim is based on in- service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 67 Fed. Reg. 10330-32 (March 7, 2002) (to be codified at 38 C.F.R. § 3.304(f)(3)). In July 2001, a mental health counselor from the Gannon Center diagnosed the veteran with PTSD and attributed it in part to the veteran's having been sexually violated while in Germany in service. Therefore, under 38 C.F.R. § 3.304(f), for the veteran to prevail in his claim of service connection for PTSD, there must only be credible supporting evidence that the claimed in-service stressor occurred. The veteran claims a stressor from an in-service personal assault that occurred in Germany in July 1977. Service medical records show that the veteran was brought into the emergency room on July 31, 1977, at 12:50 in the morning, complaining that he got attacked by 3 people. His pupils were dilated, and his ears were clogged. He was disoriented, and the examiner commented that the veteran had possible shock with hysteria. In September 1977 (less than 2 months after the veteran was seen in the emergency room), the veteran was approved to be separated from service due to "unsuitability-apathy defective attitude or inability to expend effort constructively." Although the medical record from July 31, 1977, is not as detailed as one would like, the evidence does show that the veteran was disoriented, and was noted to have possible shock with hysteria. Furthermore, the new regulation at 38 C.F.R. § 3.304(f)(3) instructs that behavior changes following the claimed assault can constituted credible evidence of the stressor, and deterioration in work performance is specifically listed as an example of a behavior change that may constitute credible evidence of the stressor. The record clearly shows that shortly after the veteran was seen in the emergency room (less than two months later), his work performance deteriorated to the point where it was recommended he be separated from service for among other things, "inability to expend effort constructively." This certainly would seem to qualify as a deterioration in work performance, when compared to the veteran's ability to have successfully served two years in the military prior to that. It is pointed out that there is also evidence against the question of whether the in-service personal assault occurred. For one thing, the medical record does not provide great detail about the attack that allegedly occurred on July 31, 1977. Also, the veteran has not supplied any corroborating versions of the attack, and he waited over 20 years to claim that this attack in particular was the attack that caused his PTSD. Still, for the reasons discussed above, the evidence is deemed to be in equipoise regarding the question of whether the veteran was assaulted while in Germany. Accordingly, the veteran is granted the benefit of the doubt regarding this question. Patton v. West, 12 Vet.App. 272, 277 (1999). Thus, in light of a diagnosis of PTSD, credible supporting evidence that the claimed in-service stressor actually occurred, and medical evidence linking the veteran's PTSD to the stressor, the veteran's claim of service connection for PTSD is granted. 38 C.F.R. § 3.304(f). ORDER Service connection for PTSD is granted. G. H. Shufelt 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.