Citation Nr: 0216343 Decision Date: 11/14/02 Archive Date: 11/25/02 DOCKET NO. 02-06 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. M. Panarella, Counsel INTRODUCTION The veteran served on active duty from August 1968 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the January 1999 and October 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The record contains no credible supporting evidence that confirms the veteran's claimed stressor. 3. The record contains no diagnosis of PTSD related to a verified stressor. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303, 3.304 (2002); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) became law. The VCAA applies to all pending claims for VA benefits, and redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant of the information and evidence necessary to substantiate a claim for VA benefits. See 38 U.S.C. §§ 5103, 5103A (West Supp. 2002); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.159). In this case, VA's duties have been fulfilled to the extent possible. First, VA must notify the veteran of evidence and information necessary to substantiate his claim and inform him whether he or VA bears the burden of producing or obtaining that information or evidence. See 38 U.S.C. § 5103A (West Supp. 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In the present case, the veteran was informed of the evidence needed to substantiate his claim by means of the discussions in the January 1999 and October 2000 rating decisions. In addition, a Statement of the Case was issued in April 2002 and a Supplemental Statement of the Case was issued in August 2002. In the rating decisions, the veteran was informed of the basis for the denial of his claim and of the type of evidence that he needed to submit to substantiate that claim. In the Statement of the Case and Supplemental Statement of the Case, the RO notified the veteran of all regulations pertinent to his claim, informed him of the reasons for the denial, and provided him with additional opportunity to present evidence and argument in support of his claim. Moreover, the RO sent a letter to the veteran in December 2001 that informed him of the provisions of the VCAA. This letter clearly informed the veteran of the actions that the RO would take to substantiate his claim, as well as the information required of the veteran. That same month, the RO sent to the veteran a letter that specifically addressed claims for PTSD due to personal assault. This letter informed the veteran of the pertinent types of information and evidence that would substantiate such a claim. In response, the veteran wrote that he had no additional evidence. In addition, the claims file contains memoranda written by the Decision Review Officer that reflect that the veteran was informed of the evidence needed to substantiate his claim. Therefore, the Board finds that the rating decisions, Statement of the Case, Supplemental Statement of the Case, and related letters provided to the veteran specifically satisfy the notice requirements of 38 U.S.C.A. § 5103 of the new statute. VA must also make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West Supp. 2002). Here, the RO considered the service medical and personnel records, lay statements, a private psychiatric report, and personal hearing testimony. The veteran testified before the RO that he had received no treatment for PTSD; accordingly, no treatment records are for consideration. In addition, as discussed further below, the veteran did not relate sufficient information to permit verification of his claimed stressor or to warrant a VA examination. Therefore, the Board finds that no further action is necessary to meet the requirements of the VCAA. Generally, to establish service connection for a particular disability, the evidence of record must demonstrate that a disease or injury resulting in a current disability was incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303 (2002). With regard to PTSD, however, VA regulations reflect that symptoms attributable to PTSD are often not manifested in service. Accordingly, service connection for PTSD requires current medical evidence establishing a diagnosis of the condition, presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor; 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. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The evidence necessary to establish the occurrence of a stressor during service to support a claim for PTSD will vary depending on whether the veteran was "engaged in combat with the enemy." See Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993). If it is determined through military citations or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be established as conclusive evidence as to their actual occurrence. No further development or corroborative evidence will be necessary if the veteran's testimony is found to be satisfactory. Such testimony must be credible and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f). Where the veteran did not engage in combat with the enemy or the claimed stressor is unrelated to combat, the veteran's lay testimony alone is insufficient to establish the occurrence of the alleged stressor. In such cases, the record must include some corroborative evidence that substantiates or verifies the veteran's testimony or statements as to the occurrence of the alleged stressor. In an October 1999 opinion, the General Counsel held that the ordinary meaning of "engaged in combat with the enemy" requires that the veteran have taken part in a fight or encounter with a military foe or hostile unit or instrumentality. It did not apply to veterans who served in a general "combat area" or "combat zone". The absence from a veteran's service records of any ordinary indicators of combat may support a reasonable inference that he did not engage in combat. See VAOPGCPREC 12-99. When the veteran initially filed a claim of entitlement to service connection for PTSD, he submitted a February 1999 psychiatric assessment performed by Theresa Garton, M.D. Dr. Garton diagnosed the veteran with several psychiatric disorders, including PTSD. The veteran had informed Dr. Garton that he served as a helicopter mechanic and door gunner in Thailand and Korea and that he flew helicopter patrol missions. The veteran subsequently submitted a September 2000 statement to the RO and presented testimony at a personal hearing before the RO in July 2002. On those occasions, the veteran alleged that his PTSD was due to a sexual assault in service. Accordingly, the Board will proceed to consider the veteran's claim based upon the reported stressor of a sexual assault. However, as a preliminary matter, the Board observes that the evidence of record is against a finding that the veteran participated in combat with the enemy. The service personnel records reveal that the veteran served in Thailand and Korea from October 1969 through November 1970 as an aircraft maintenance apprentice. The veteran's DD 214 identified the veteran's military occupational specialty as armorer and documented that he completed helicopter door gunner training in March 1969. The DD 214 does not reflect combat service or injury and the service medical records do not document any injuries received in combat. The veteran did not receive any medals or citations that are necessarily indicative of combat experience. With the absence of these ordinary indicators of combat, the Board finds that the veteran's service in Thailand and Korea is insufficient to establish combat involvement. In his September 2000 statement to the RO, the veteran alleged that a Sergeant had raped him while in service. The veteran did not provide the Sergeant's name or a specific date or location. He claimed that the rape occurred prior to his completion of door gunner training, and that he reported the attack to no one. At his personal hearing in July 2002, the veteran stated that the rape occurred at Fort Rucker, Alabama. The veteran had been unsuccessful in his attempts to contact two men who had known of the assault, and he could not remember the name of the Sergeant who committed the assault. The veteran had not reported the rape to family members, fellow servicemen, or clergy, and had only recently told his wife. The veteran testified that he was constantly in trouble and drank a lot after the rape. He had received no psychiatric treatment. 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. 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. YR, 11 Vet. App. at 398-99; Patton, 12 Vet. App. at 272. Applying the above criteria to the facts of this case, the Board finds that a preponderance of the evidence is against service connection for PTSD. The veteran's alleged stressor of a sexual assault has not been verified by any independent sources. The service medical records contain no indication of a sexual or physical assault. In addition, the veteran has neither submitted nor identified any relevant treatment records. The veteran has testified that he told no one of the alleged rape until he recently told his wife. He also testified that two men knew of the rape but that he had been unable to contact them. In short, the record contains no lay or professional statements in support of the veteran's allegations. In addition, the record contains no other corroborating evidence, such as unexplained change of behavior at the time of the incident. The veteran's service personnel records document that the veteran was disciplined in December 1969, January and February 1970, and May 1972 for various offenses such as not reporting to his appointed place of duty and for altering a DD 214. However, the records show that the veteran was stationed at Fort Rucker from November 1968 to April 1969. Therefore, these incidents did not occur near the time of the alleged rape. In the absence of any independent verification of the alleged rape, the Board must find that a preponderance of the evidence is against service connection for PTSD. Finally, the Board observes that the stressor letter sent by the RO was specifically tailored for personal assault cases and complied with M21-1, Part III, para. 5.14(c)(6). In the absence of additional information from the veteran, the Board finds that the RO accomplished all development possible. The veteran testified that no one could verify the assault, that he had never received treatment, and that he could provide no more detailed information. Accordingly, the appeal is denied. ORDER Service connection for PTSD is denied. WARREN W. RICE, JR. 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.