Citation Nr: 0315685 Decision Date: 07/11/03 Archive Date: 07/17/03 DOCKET NO. 99-13 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The veteran served on active duty from May 1972 to November 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The case was the subject of a January 2001 Board remand, for the purpose of further development of the evidence. The purposes of that remand were met to the extent possible. FINDING OF FACT There is no credible supporting evidence to establish that the claimed in-service stressor, sexual harassment, upon which the veteran's PTSD claim and diagnosis are premised, occurred. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (the VCAA), Pub. L. No. 106- 475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). VA has issued final regulations to implement these statutory changes. See C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). These new provisions redefine the obligations of VA with respect to the duty to assist and include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change in law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, the Board finds that VA's duties to the veteran under the VCAA have been fulfilled. First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103. The Board concludes that the discussions in the February 1998 rating decision, the May 1999 statement of the case, the September 1999 RO hearing, the July 2000 and February 2003 supplemental statements of the case, letters sent to the veteran by the RO, and the Board's January 2001 remand, adequately informed her of the information and evidence needed to substantiate her claim and complied with VA's notification requirements. A March 2001 letter from the RO informed the veteran that she "must clearly state whether or not you are claiming that PTSD is due in full or in part to personal or sexual assault in service." She has not responded to this request. The letter further informed the veteran of the steps she could take in identifying medical records, so that the RO could assist her in obtaining them, or that she could obtain any pertinent records herself. The letter requested that the veteran tell the RO about any additional information or evidence that she wanted the RO to try to get for her. The letter listed the evidence obtained by the RO in developing her claim. She was further notified of the types of evidence required to substantiate a claim for service connection. A May 2002 letter further informed the veteran of the specific regulations pertaining to development of claims for service connection for PTSD based on sexual or personal assault, and requested any information that may corroborate the occurrence of the stressful events to which she attributed the onset of her psychiatric condition. The RO once again requested clarification from her as to whether there was any personal or sexual assault involved. The RO informed the veteran that it could assist here if she thought of any additional sources that may be able to corroborate the incidents of sexual assault or sexual harassment which she previously reported. The only response to these RO inquiries was a written statement from the veteran in June 2002, identifying VA and Vet Center records of post-service treatment and counseling. Based on the foregoing, the Board concludes that the veteran was notified and aware of the evidence needed to substantiate her claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. As discussed in a February 2003 supplemental statement of the case, the RO has obtained the veteran's service medical records, service personnel records, records of treatment at the Vet Center, and VA treatment records. In addition, as noted above, the RO contacted the veteran by letter in March 2001 and May 2002 and asked her to identify all medical providers who treated her for PTSD, and to identify any additional sources of information which could substantiate her claim or corroborate her claimed stressors. The RO has obtained all information and evidence identified by the veteran. In addition, the case was remanded by the Board in January 2001 for additional development of the evidence, including obtaining a medical opinion if warranted by the evidence of record. A review of the record shows that the RO has complied with all remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Moreover, as is reflected in the analysis section of this decision, the Board concludes that the RO was correct in determining that a medical opinion was not necessary in adjudication of the claim. The veteran has not provided information which could lead to corroboration of her claimed stressor, despite specific and clear requests for such information from the RO and offers to assist her in obtaining such information. Without corroboration of the claimed stressor, the claim for service connection for PTSD must be denied. 38 C.F.R. § 3.304(f). Because this necessary criterion is not met, a VA examiner's opinion, which by law may not operate to corroborate her claimed stressor, could not be sufficient to substantiate her claim for service connection for PTSD. The Board acknowledges that under certain circumstances, a clinician's "nexus" opinion may contain language that is corroborative of an in-service personal assault or sexual assault stressor but here, the initial diagnosis of PTSD was made over 21 years after service and there are no antecedent medical records or lay evidence, to include evidence of a change in behavior during or proximate to service or at any time prior to March 1997. Thus, while clinicians have noted PTSD linked to in-service sexual harassment the diagnosis was based entirely upon the veteran's history. That is, no examiner pointed to something in the record that supported the contended causal link. As is discussed in the analysis section of this decision, the medical evidence and September 1999 RO hearing testimony from the veteran indicates that the claimed stressor is in-service sexual harassment. The RO advised the veteran of the regulations and special VA procedures applying to cases involving personal assault or sexual assault. In the absence of any verification of the claimed in-service stressor, or of any of the characteristics listed in the special provisions that apply to such cases in M21-1, Part III, 5.14c, there is no duty to provide an examination or opinion with regard to the claim on appeal. As VA has fulfilled the duty to assist, and because the change in law has no material effect on adjudication of her claim, the Board finds that it can consider the merits of this appeal without prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Background The veteran served on active duty from May 1972 to November 1975. She received an honorable discharge. Service medical records reveal no complaints or treatment for psychiatric disability. Service personnel records contain no evidence or description of psychiatric difficulties or of behavior or performance declines which could intimate ongoing unreported sexual harassment while in Germany. Psychiatric evaluation at her October 1975 service discharge examination was normal. At a January 1981 VA general medical examination, the veteran's psychiatric condition and personality were evaluated as normal. Records of treatment from the Vet Center in February and March 1997 describe the veteran as seeking counseling based on her history of being subjected to severe in-service sexual harassment. Her treatment with the Vet Center was closed in March 1997. She was unable to participate in group therapy due to a conflicting work schedule. She was referred to a therapist for one-to-one therapy. VA records of treatment in March 1997 indicate that the veteran had just started treatment at the Vet Center. She denied any anxiety or depressed symptoms, but had increased anger. In April 1997, the veteran submitted a claim for service connection for "sexual harassment." VA records of treatment in June 1997 show that the veteran was "requesting individual therapy for sequelae of sexual trauma suffered in 1974." VA records of psychiatric intake and treatment in October 1997 include a diagnosis of PTSD. The veteran was experiencing intrusive thoughts about sexual harassment in the Army. It was noted that she described extensive sexual harassment from two married sergeants during her 2-year assignment in Germany. She indicated that she had planned to make the Army here career, but left after four years because of fear of more harassment. The psychiatric diagnoses also included major depression, recurrent, moderate to severe. Records of treatment through April 1999 show continuing diagnoses of PTSD and repeatedly include the history of in- service sexual harassment. At her September 1999 RO hearing, the veteran said she worked in medical supply during service. She described recent treatment for PTSD. She recounted a period of sexual harassment during service, during which two sergeants were interested in having sex with her and she became very afraid. She recalled that she did not want to talk about it for many years after it happened. She testified that she told the men that if she only knew their wives, she would tell them about the harassment. She stated that she moved off base to avoid these two men, and that she was still able to perform her duties well during service despite the harassment. She said the first person she told about the harassment was her mother, in approximately 1995. VA records of treatment from October 1999 to August 2002 include recounting of the history of in-service sexual harassment, and diagnosis and treatment for PTSD, diagnosed as attributable to the history in-service sexual harassment. Law and Regulations Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§, 1110, 1131; 38 C.F.R. § 3.303. When a disability is not initially manifested during service or within an applicable presumptive period, service connection may nevertheless be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires: 1) medical evidence diagnosing the condition; 2) a link, established by medical evidence, between current symptoms and an in-service stressor; and 3) 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). If the claimed stressor is not combat related, the veteran's lay testimony regarding the in-service stressor is insufficient, standing alone, to establish service connection and must be corroborated by credible evidence. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); Doran v. Brown, 6 Vet. App. 283, 289 (1994). The Court of Appeals for Veterans Claims has held that there is no requirement that such corroboration must be found in the service records. However, the credible supporting evidence cannot consist solely of after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio, 9 Vet. App. at 166. Service connection for PTSD generally requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125; 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. 38 C.F.R. § 3.304(f). The veteran has never contended that she engaged in combat with the enemy as defined within 38 U.S.C.A. § 1154(b). As a result, as a matter of law, a medical provider cannot provide supporting evidence that the claimed in-service event actually occurred based on a post-service medical examination. Moreau v. Brown, 9 Vet. App. 389, 395-6 (1996). In addition, the veteran's own testimony, standing alone, will not be sufficient. Id. The special provisions of VA Adjudication Procedure Manual M21-1 (M21-1), Part III, regarding personal assault have also been considered. M21-1 notes that: "Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking." M21-1, Part III, 5.14c. M21-1 identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1, Part III, 5.14c(4)(a). When there is no indication in the military record that a personal assault occurred, alternative evidence, such as behavior changes that occurred at the time of the incident, might still establish that an in-service stressor incident occurred. Examples of behavior changes that might indicate a stressor include: visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; lay statements indicating increased use or abuse of leave without apparent reason; changes in performance or performance evaluations; lay statements describing episodes of depression, panic attacks or anxiety with no identifiable reasons for the episodes; increased or decreased use of prescription medication; evidence of substance abuse; obsessive behavior such as overeating or under eating; pregnancy tests around the time of the incident; increased interest in tests for HIV or sexually transmitted diseases; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; breakup of a primary relationship. M21-1, Part III, 5.14c(7)(a)-(o). See also 38 C.F.R. § 3.304(f)(3) (2002) (effective March 7, 2002, essentially codifying these M21 manual provisions); Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21 manual evidentiary procedures apply in PTSD personal assault cases). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also, 38 C.F.R. § 3.102 (2002). When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The medical histories and the veteran's September 1999 RO hearing testimony describe a pattern of sexual harassment upon the veteran by two fellow servicemen, consisting of unwelcome and unsuccessful requests to have sex with the veteran. The Board has considered, as did the RO, the special evidentiary provisions of M21-1, Part III, 5.14c(7)(a)-(o), and 38 C.F.R. § 3.304(f)(3) (2002), which create a special evidentiary exception to the rule that after-the-fact medical "nexus" evidence of occurrence of the in-service stressor may not serve to corroborate the stressor. The Board notes that there are many diagnoses of PTSD of record, and that there are numerous records of treatment linking the diagnosis of PTSD to the veteran's claimed stressor, in-service sexual harassment. However, the initial diagnosis was made more than 21 years after service and many years after the veteran filed her original VA compensation claim (service connection for an ankle disability). The separation examination and a post-service VA examination in January 1981 was entirely negative for any pertinent findings. More importantly, the record contains no medical or lay evidence of psychiatric symptoms or any of the characteristics or behavioral changes indicative of sexual trauma as listed in M21-1, Part III, 5.14c, until the veteran filed her original claim for service connection for a psychiatric disorder in 1997. Thus, no examiner was able to point to anything in the record to support the contended causal link; it was based entirely upon the veteran's history. Moreover, these clinicians did not even specifically cite in the histories obtained beginning in 1997 any current characteristics or behavioral changes. Under these circumstances, it is the Board's judgment that the veterans' claimed in-service stressor requires some corroboration, to include a lay statement, or a medical rationale as to why the veteran's history is suggestive of such in-service trauma. There is no supporting evidence, credible or otherwise, to establish that the claimed non-combat in-service stressor, sexual harassment, upon which the veteran's PTSD claim and diagnosis are premised, occurred. The veteran has been requested to provide evidence corroborating the stressor, most recently in an RO letter dated in May 2002, but the veteran has not responded to such inquiries. VA is left with no avenue for development in attempting to corroborate the in-service sexual harassment. As the veteran was notified in the Board's January 2001 remand of this claim, while the duty to assist is neither optional nor discretionary (see Littke v. Derwinski, 1 Vet. App. 90, 92 (1991)), the duty is not always a one-way street; nor is it a "blind alley." Olson v. Principi, 3 Vet. App. 480, 483 (1992). "The VA's 'duty' is just what it states, a duty to assist, not a duty to prove a claim with the veteran only in a passive role." Gober v. Derwinski, 2 Vet. App. 470, 472 (1992) (citations omitted). Because the veteran has failed to provide requested information vitally necessary to substantiate her claim with respect to her alleged stressor events, there is no "reasonable possibility" that other development actions could substantiate her claim. Because there is no credible supporting evidence to establish that the claimed non-combat in-service stressor occurred, service connection for PTSD is not warranted. 38 C.F.R. § 3.304(f). There being no supporting evidence, credible or otherwise, to establish that the claimed in-service stressor occurred, the preponderance of the evidence is against the claim for service connection for PTSD, so that the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for post-traumatic stress disorder is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, 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.