Citation Nr: 0318935 Decision Date: 08/04/03 Archive Date: 08/13/03 DOCKET NO. 99-11 748A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric condition, to include post-traumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. L. Wight, Counsel INTRODUCTION The veteran served on active duty from November 1975 to April 1991. This case initially came to the Board of Veterans' Appeals (Board) by means of a January 1999 rating decision rendered by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2001, the veteran testified at hearing in Washington, DC, before the undersigned Member of the Board. A transcript of this hearing has been associated with the claims folder. In September 2001, the Board remanded the case for further development. After further development at the RO, the case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of the claim and has notified him of the information and evidence necessary to substantiate his claim. 2. Service medical records show that the veteran sustained injuries to his hands and face from an in-service fire and was treated for an adjustment disorder. 3. The medical evidence shows that the veteran is presently diagnosed with PTSD and depression secondary to his PTSD. 3. The record does not show that the veteran engaged in combat with the enemy. 4. The veteran's alleged in-service stressors of sexual assault have not been verified by official records or corroborated by service records or other credible evidence. 5. The diagnosis of PTSD is not based on a corroborated stressor. 6. The veteran's depression and major depressive disorder have been attributed to his alleged sexual trauma and PTSD. CONCLUSION OF LAW An acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depression, was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.104, 3.303, 3.304, 3.306 (2002); VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14 (April 30, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board must consider the impact of the Veterans Claims Assistance Act of 2000 (VCAA) on the veteran's claims. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5126 (West 2002). The law provides that VA has a duty to assist veterans and other claimants in developing their claims for VA benefits. The Board notes that the veteran's application for the benefit at issue is complete. The VCAA provides that upon receipt of an application for VA benefits, VA shall notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, not previously provided that is necessary to substantiate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(b). VA must inform the veteran whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West Supp. 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). By various correspondence from the RO as well as Statements of the Case issued during the course of the appeal, the veteran was informed of the provisions of the VCAA including VA's duty to notify him about his claim and its duty to assist him in obtaining evidence for his claim. In particular, by letters dated in March and December 2002, he was informed of the evidence necessary to establish entitlement to the benefits sought, what VA had done to help him with his claim, what evidence was still needed from the veteran, and what the veteran could do to help with his claim. Accordingly, the Board finds that the duty to inform the veteran of required evidence to substantiate his claim has been satisfied. 38 U.S.C.A. § 5103(a). The duty to assist requires VA to make "reasonable efforts to obtain relevant records (including private records)." 38 U.S.C.A. § 5103A. The veteran's service records and post service medical records are presently associated with the claims folder. Accordingly, the Board finds that the RO has made reasonable attempts to obtain medical records referenced by the veteran, and that VA's duty to assist the claimant in obtaining pertinent medical records is satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2002). The duty to assist also requires a medical examination or opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). In this regard, the veteran has been afforded several VA psychiatric examinations in conjunction with his claim for service connection. The reports of these examinations along with the other evidence of record are sufficient to decide the veteran's claim. 38 U.S.C.A. § 5103A(d)(1). VA has completed all development of this claim that is possible without further input by the appellant. The appellant has been duly notified of what is needed to establish entitlement to the benefits sought, what the VA has done and/or was unable to accomplish, and what evidence/information he can obtain/submit himself. Accordingly, the Board finds that the requirements set forth in the VCAA with regard to notice and development of the appellant's claim have been satisfied. Evidentiary Background: Service medical records are silent for any treatment or diagnosis of post-traumatic stress disorder and they do not show any treatment or complaint related to a rape or sexual assault. The evidence reflects that the veteran was hospitalized for treatment of burns to his face and hands sustained in a tent fire in November 1977. In addition, the veteran has a documented in-service history of alcohol dependence with inpatient treatment in August 1986 and November to December 1986. The hospital records from this latter admission reflect that the veteran began drinking at the age of 13. He reported two prior Article 15's related to alcohol problems and he had been arrested for driving under the influence in June 1986. A history of prior drug use was also noted. The veteran reported marital problems and anger toward his wife. A subsequent entry in the veteran's service medical records dated in June 1990 indicates that the veteran was seen for an adjustment disorder and depressed mood. On mental status examination prior to separation, he was found to be normal. Service personnel records show that the veteran voluntarily extended his period of enlistment for three years in June 1983. In July 1984, the veteran was awarded his second of three Good Conduct Medals. He was awarded this decoration based on his "exemplary behavior, efficiency and fidelity from June 1981 to June 1984." Thereafter, in May 1985, he reenlisted for an additional four years. That same month, he also received an Army Achievement Medal based on meritorious service for his period of service from May 1982 to May 1985. While released from an in-service leadership development course for disciplinary reasons in February 1986, the veteran was awarded his third Good Conduct Medal for exemplary conduct, efficiency and fidelity for the period from June 1984 to June 1987. In April 1991, the veteran was separated from active duty as he failed to make significant progress in reversing his past abuse of alcohol and for serious misconduct. It was noted that he received Article 15 non-judicial punishments for assault in February 1989 and driving under the influence (DUI) in January 1991. His punishment included a reduction in grade. Service personnel records indicate that the veteran's January 1991 punishment was initially suspended; however, in February 1991, the suspension was vacated as the veteran had an additional DUI and he had driven with a suspended license. Post-service VA medical records show that the veteran underwent inpatient alcohol and drug rehabilitation from September to October 1991. The discharge summary indicates that the veteran had an 18-year drinking problem. In October 1997, the veteran was afforded a VA psychiatric examination. He reported a history of heavy drinking, shakes, and blackouts. He also had a history of cocaine abuse. He alleged that an officer molested him during active duty; however, no investigation had been conducted. He allegedly reported the incident, but nothing was done about it. Pertinent diagnosis was atypical psychosis associated with substance abuse. In March 1998, the veteran received VA substance abuse treatment. He admitted to cocaine, alcohol, and opioid (heroin) dependencies. A 22-year history of alcohol and drug use was noted. He smoked crack cocaine and drank at least four 40 ounce container of malt liquor daily. Assessments of substance dependence, continuous, alcohol and cocaine and a history of depression and PTSD were rendered. The veteran was on a period of leave without pay from the Postal Service due to excessive tardiness and absenteeism associated with his chemical dependence. In April 1998, the veteran filed a claim for service connection for PTSD. He reported several in-service stressors that he attributed to his claimed PTSD. One stressor was the 1977 tent fire in which his hands were burned. He reported nightmares in which he was trapped in a sleeping bag in the fire. His other stressor involved an alleged rape by an officer while he was serving in Germany in 1984. According to the veteran, this incident was reported to authorities and a full investigation was conducted. He reported nightmares and intrusive thoughts of this assault and that he had homosexual tendencies as a result of it. The veteran was afforded another VA psychiatric examination in September 1998. He reported that, in 1977, he was driving a lieutenant back to camp after being in the field when the lieutenant raped him. The very next morning he was involved in a tent fire and received second-degree burns. He never reported this assault. He also reported he had unconsenting oral sex with another officer from 1983 to 1984. As a result of these traumatic events, he had occasional nightmares about being attacked and frequent intrusive thoughts about being attacked. He reported significant anxiety and flashbacks. He reported that his first marriage broke up as a result of these incidents. Pertinent diagnoses were PTSD; major depressive disorder secondary to PTSD; alcohol dependence, in remission; and cocaine and heroin dependence, in remission. In a June 1999 statement, the veteran provided additional details of his claimed in-service stressors. He reported that his first sexual assault occurred in November 1976 and that he reported the incident to a major, but was told that filing an official complaint would affect his relationship with his peers and his career. He reported that following the tent fire in February 1977 he was hospitalized. As a result of this incident, he has a lasting fear of fire. He thought that the lieutenant that previously assaulted him had started the fire. Between 1982 and 1985, he was sexual assaulted by a captain initially following a party at the captain's house. He never reported this incident; however, another soldier had filed a report that she had seen the veteran and the captain engaged in a sexual act. When questioned about this incident by CID, the veteran reported that he denied everything, as he wanted to protect his family. Based on these accusations, the veteran felt humiliated and ashamed. When his wife eventually learned of the accusation, his marriage broke up. As a result of these assaults, he began drinking and using drugs. The veteran testified at a July 2001 hearing before the undersigned Member of the Board. The veteran indicated that he had informed a battalion major that he had been raped. The major advised the veteran not to pursue this charge. He reported that he was scared to report the later assaults by his captain. At his hearing, the veteran submitted a June 2001 statement from his VA psychologist which attributes the veteran's PTSD to his two separate incidents of sexual assault during his active military service. The veteran was also diagnosed with major depression, recurrent, with psychotic features. In April 2003, the U.S. Armed Services Center for the Research of Unit Records (USASCRUR) provided the results of a U.S. Army Criminal Investigation Command report of alleged Lewd and Lascivious Acts between the veteran and Captain S. A fellow soldier, Sergeant R had reported that she observed the veteran and Captain S engaged in mutual acts of kissing and caressing during the period from March to April 1983. During the course of a formal investigation, the veteran was interviewed in September 1983. At that time, he reported that the allegations made by Sergeant R were totally false and that he did not have any more than a normal relationship with Captain S. The veteran reported that he was heterosexual and had never engaged in homosexual activity. The veteran reported that Captain S. had propositioned him for sex; however, he refused. The final report concluded that the investigation failed to substantiate that the offense of Lewd and Lascivious Acts with another occurred as reported. Legal Criteria: Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2002). For the showing of 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD now requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); 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) (2002). Prior to the effective date of 38 C.F.R. § 3.304(f) on June 18, 1999, and at the time the veteran filed his claim for service connection for PTSD, the requirements for service connection for PTSD were: medical evidence establishing a clear diagnosis of the condition; credible supporting evidence that the claimed 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) (1998). Generally, when a law or regulation changes while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). In this case, the Board finds that the new regulation is potentially more beneficial in this veteran's case because it only requires medical evidence of a current diagnosis of PTSD in accordance with DSM-IV, but no longer requires a "clear" diagnosis of PTSD (which could include a diagnosis based on a version of DSM prior to the DSM-IV). With regard to the claimed stressor involving allegations of personal assault, VA recognizes that veterans claiming service connection for disability due to an in-service personal assault face unique problems documenting their claims. Personal assault is an event of human design that threatens or inflicts harm. Although these incidents are most often thought of as involving female veterans, male veterans may also be involved. These incidents are often violent and may lead to the development of PTSD secondary to personal assault. VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14 (April 30, 1999) (hereinafter M21-1). Because assault is an extremely personal and 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. Therefore, alternative evidence must be sought. The M21-1 includes a sample letter to be sent to the veteran, asking him to provide details as to any treatment he had received, any family or friends he had communicated with concerning this claimed personal assault, and any law enforcement or medical records pertaining to the alleged assault. M21-1, Part III, 5.14 (April 30, 1999). See also YR v. West, 11 Vet. App. 393 (1998) (5.14 is a substantive rule and the equivalent of a VA regulation). With respect to claims involving personal assault, all available evidence must be carefully evaluated. If the military records do not document that a personal assault occurred, alternative evidence might still establish an in- service stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Examples of behavior changes that might indicate a stressor are (but are not limited to): (a) visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; (b) sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; (c) lay statements indicating increased use or abuse of leave without an apparent reason such as family obligations or family illness; (d) changes in performance and performance evaluations; (e) lay statements describing episodes of depression, panic attacks, or anxiety but no identifiable reasons for the episodes; (f) increased or decreased use of prescription medications; (g) increased use of over-the- counter medications; (h) evidence of substance abuse such as alcohol or drugs; (i) increased disregard for military or civilian authority; (j) obsessive behavior such as overeating or undereating; (k) pregnancy tests around the time of the incident; (l) increased interest in tests for HIV or sexually transmitted diseases; (m) unexplained economic or social behavior changes; (n) treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; and (o) breakup of a primary relationship. M21-1, Part III, 5.14(7). In personal assault claims, secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. M21-1, Part III, 5.14(8). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation 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 accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154 (b) (West 2002); 38 C.F.R. § 3.304(d),(f) (2002); Doran v. Brown, 6 Vet. App. 283, 289 (1994). However, if it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Analysis: In this case, there is no objective evidence that the veteran "engaged in combat with the enemy." See VAOPGCPREC 12-99. The veteran's DD Form 214 and service personnel records do not indicate references to combat. Moreover, the veteran does not allege that his claimed in- service stressors were related to combat with the enemy in service. For these reasons, the Board finds that the veteran did not engage in combat with the enemy and that the reported stressors are not claimed to be related to combat. Because the veteran did not engage in combat with the enemy, his lay testimony alone is not enough to establish the occurrence of the alleged stressor of personal assault. After a review of the evidence, the Board finds that the credible evidence of record does not show that the veteran's alleged stressor of a personal assault actually occurred as required under 38 C.F.R. § 3.304(f). Service medical and personnel records are silent for any complaint of, or treatment for, a personal assault. The Board has specifically considered whether behavior changes occurred at the time of the incident, or soon thereafter, as indicated by the M21-1, which may indicate the occurrence of an in-service stressor. The M21-1 contemplates that visits to a medical clinic without a specific diagnosis or specific ailment is a behavior change occurring at the time of the incident that might indicate a stressor. In this case, the veteran's service medical records do not show that he sought any medical treatment at the time of the alleged ongoing in- service sexual assaults. Subsequent in-service medical records, with the exception of a June 1990 notation of an adjustment disorder, are silent for any complaints, treatment, or diagnoses of an acquired psychiatric disorder or residuals of a personal assault. On the contrary, no acquired psychiatric disorders were noted at the time of his separation from active duty. Changes in performance and performance evaluations are behavior changes contemplated by M21-1 that might indicate a stressor. The evidence does not show any changes in performance that would evidence a behavior change at the time of the alleged in-service sexual assaults in November 1976 and from 1982 to 1985. On the contrary, the veteran received Good Conduct Medals and an Army Achievement Medal during that time based on his exceptional service. The Board notes that following the alleged sexual assaults, the veteran reenlisted in June 1983 and May 1985. Evidence of alcohol abuse is also a behavior change indicated by M21-1 as behavior that might indicate a stressor. While the veteran had a history of alcohol dependence, he veteran did not receive any treatment for this until some time following his alleged in-service sexual assaults. It is noted that the veteran's alcohol related offenses occurred several years following his alleged sexual trauma. While the veteran has reported that he started drinking as and using drugs as a result of his alleged in-service sexual assaults, the Board notes that service medical records show that he started drinking at the age of 13, long before his entry into the Army. The Board can find no competent evidence of record to substantiate the veteran's contention that he began drinking or abusing alcohol or drugs as a result of his alleged in-service assaults. Obsessive behavior is also a change contemplated by M21-1 that might indicate a stressor. However, the contemporaneous service records do not evidence an obsessive behavior. The first evidence of a diagnosis of PTSD is the report of a March 1998 VA examination nearly seven years following his separation from active service. The veteran has testified under oath at a personal hearing regarding the incurrence of in-service sexual assaults in 1976 and from 1982 to 1985. The Board finds that his testimony regarding this event, as well as other significant facts he reported, are not consistent with the service medical evidence and other corroborative evidence. On the contrary, during an in- service investigation, the veteran denied having sexual relations with Captain S. The Board notes that the record is devoid of medical or counseling treatment records following the incidents, military or civilian police reports, reports from crisis intervention or other emergency centers, or any medical or counseling notes to corroborate the occurrence of the rape. The Board finds that the evidence contemporaneous to the veteran's active service to include service personnel and medical records is more probative than the lay statements proffered years after his separation from active duty. Based on this evidence, the Board finds that the evidence of record is not sufficient to establish that the alleged stressor of a personal assault occurred either in 1976 or from 1982 to 1985. Thus, the Board finds that the reported stressor of a personal assault is not supported by the evidence. 38 C.F.R. § 3.102. The Board notes that the veteran also alleged in his initial claim for service connection that his PTSD resulted from his exposure to an in-service fire. This stressor is verified by the service medical record. However, the evidence does not show that the veteran's PTSD resulted from this stressor. While PTSD was diagnosed during VA examination in September 1998, the diagnosis was based on the veteran's alleged sexual assaults rather than the in-service fire. The examination report indicates that that his PTSD symptomatology was related to his alleged attacks. Similarly, the veteran's treating psychologist, in her June 2001 statement, related the veteran's PTSD to his stressors of military sexual trauma, which as set forth above, is not verified. The competent medical evidence of record does not show a diagnosis of PTSD based on the in-service fire that injured the veteran. Based on the discussion above, the Board finds that service connection for PTSD is not warranted. 38 C.F.R. § 3.304(f). Having determined that service connection for PTSD is not warranted, it is necessary to determine whether the veteran has an acquired psychiatric disorder, other than PTSD, that would warrant a grant of service connection. In this regard, the Board notes that the evidence shows that the veteran also presently diagnosed with depression and a major depressive disorder. While the veteran's service medical records show treatment for an adjustment disorder, the veteran's present psychiatric condition, other than PTSD, has been attributed by the medical examiners to his PTSD and in-service history of sexual assault. As the evidence does not show that either condition was incurred in active service or is due to a service-connected disability, service connection for an acquired psychiatric condition, other than PTSD, is not warranted. 38 C.F.R. §§ 3.303, 3.310. ORDER Service connection for an acquired psychiatric condition, to include PTSD, is denied. ______________________________________________ MARK W. GREENSTREET 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.