Citation Nr: 0332319	
Decision Date: 11/19/03    Archive Date: 11/25/03

DOCKET NO.  98-06 578	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUE

Entitlement to service connection for post-traumatic stress 
disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARINGS ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

Tresa M. Schlecht, Counsel


INTRODUCTION

The veteran had active service from September 1982 to October 
1982.  This matter initially came before the Board of 
Veterans' Appeals (Board) on appeal from a December 1997 
rating decision of the Department of Veterans Affairs (VA) 
Regional Office (RO) in St. Louis, Missouri, which denied a 
claim of entitlement to service connection for PTSD.  In 
August 2001, the Board remanded the claim for further 
development.  The claim now returns to the Board for 
appellate review.


FINDINGS OF FACT

1.  The veteran has been notified of the evidence and 
information needed to substantiate her claim, and all 
identified evidence has been obtained.  

2.  The preponderance of the medical evidence establishes 
that the veteran does not have a current diagnosis of PTSD.


CONCLUSION OF LAW

The criteria for an award of service connection for PTSD due 
to personal assault have not been met.  38 U.S.C.A. §§ 1110, 
1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 
3.159, 3.303, 3.304 (2003).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran alleges that she has a current psychiatric 
disorder as a result of stressors she experienced in service.  
In a statement submitted in December 1997, the veteran 
specifically related that she experienced a strip search the 
evening she arrived for basic training in late September 
1982.  She also reported that, during the portion of basic 
training she completed, the drill instructor made threatening 
comments and she was afraid that he would harm her.  When she 
and the drill instructor were walking between two buildings 
and were cut off from view of others, he assaulted her.  

The veteran further contends that the diagnosis of mixed 
personality disorder assigned in service establishes that she 
incurred a psychiatric disorder during service because she 
did not have psychiatric problems prior to service, and no 
psychiatric disorder was diagnosed prior to service or at the 
time of examination for induction into service.

The Veterans Claims Assistance Act of 2000

The law for processing VA claims changed during this appeal.  
Thus, the Board has given consideration to the provisions of 
the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000) (VCAA), codified as amended at 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002).  This 
law eliminated the former statutory requirement that claims 
be well grounded.  Cf. 38 U.S.C.A. § 5107(a) (West 1991).  
The VCAA includes an enhanced duty on the part of VA to 
notify a claimant as to the information and evidence 
necessary to substantiate a claim for VA benefits.  The VCAA 
also redefines the obligations of VA with respect to its 
statutory duty to assist claimants in the development of 
their claims.  

It appears that the VCAA applies to this case even though the 
claim was filed before enactment of the VCAA in 2000, since 
VA had not finally completed adjudication of the claim before 
the law was passed.  See Kuzma v. Principi, 341 F.3d 1327 
(Fed. Cir. 2003).  Regardless of whether the VCAA applies to 
this claim, the Board finds that there has been compliance 
with the VCAA provisions.  

The current standard of review for all claims requires the 
Board to evaluate the record once all the evidence has been 
brought together.  38 U.S.C.A. § 7104 (West 2002).  When 
there is an approximate balance of the evidence regarding the 
merits of an issue material to the determination of the 
matter, the benefit of the doubt in resolving each issue 
shall be given to the claimant.  38 U.S.C.A. § 5107 (West 
2002); 38 C.F.R. §§ 3.102, 4.3 (2003).  A veteran need only 
demonstrate that there is an approximate balance of positive 
and negative evidence in order to prevail.  To deny a claim 
on its merits, the evidence must preponderate against the 
claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996); 
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

The VCAA also requires VA to notify the claimant and the 
representative of any information and any medical or lay 
evidence not previously provided to the Secretary that is 
necessary to substantiate the claim.  As part of the notice, 
VA must inform the claimant and the claimant's representative 
of which portion, if any, of the evidence is to be provided 
by the claimant and which part, if any, VA will attempt to 
obtain on behalf of the claimant.  See 38 U.S.C.A. § 5103; 
see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) 
(letter from VA to a claimant describing evidence potentially 
helpful to claimant but not mentioning who is responsible for 
obtaining such evidence did not meet the standard set by the 
VCAA).

The RO's December 1997 rating decision advised the veteran 
that entitlement to service connection for PTSD required a 
clear diagnosis of the condition, credible supporting 
evidence of stressors, and a link, established by medical 
evidence, between the claimed disorder and the in-service 
stressors.  The rating decision advised the veteran that 
there was no objective verification of the stressors she 
described as having occurred in service.  The statement also 
advised the veteran that she could provide additional 
evidence, such as information that the stressors had been 
reported to authorities, statements from individuals who 
could support her accounts, and the like.  The rating 
decision described the evidence in the service medical and 
administrative records that the RO considered persuasive in 
making its decision.  In late December 1997, the veteran 
submitted a statement which provided additional information 
about the alleged stressors and disputed the conclusions 
reached by the RO based on service clinical and 
administrative records.  

The statement of the case (SOC) issued in January 1998 
described the principles relating to service connection, 
including the requirement that the claimed disorder be 
established by the evidence and shown as related to service.  
As well, the SOC reiterated the basic requirements for 
service connection for PTSD and regulations pertaining 
specifically to PTSD.  

The veteran furnished additional information about the 
alleged stressors during her testimony at a personal hearing 
in October 1998 at the RO and at a Travel Board hearing 
conducted in March 2001.  All additional information provided 
at those hearings has been considered in development of the 
evidence.  


Also, during the pendency of the claim, the procedures used 
by VA in developing compensation claims based on allegations 
of personal or sexual assault were changed, and the veteran 
was so notified in the Board's August 2001 Remand.  In 
addition, the Board's August 2001 Remand informed the veteran 
of the enactment of the VCAA and summarized the effects of 
that Act.  The Remand advised the veteran that VA would seek 
evidence from government sources (the U.S. Armed Services 
Center for Research of Unit Records (USASCRUR) and the U.S. 
Army Crime Records Unit) to support her contention that there 
was an ongoing investigation of personal assaults at the base 
where she was stationed for basic training.  

The Remand advised the veteran that she and her husband could 
submit telephone records to support the contention that the 
veteran's spouse discussed the allegations of personal 
assault with individuals in the service's chain of command.  
The veteran was advised that she should submit any evidence 
she had which might assist to substantiate her claim.  The 
Board advised the veteran that she would be notified when VA 
completed its development of the evidence.   

The discussion during the Travel Board hearing also advised 
the veteran and her spouse that they should submit any 
records they had, such as letters written by the veteran 
during her basic training, describing the stressor events in 
service that the veteran's spouse testified he had received.  
(Transcript at 36-39).  The veteran's spouse testified that 
the letters written by the veteran were not available, and 
the veteran testified that she did not discuss the stressors 
with any one other than her husband prior to her medical 
treatment for psychiatric problems beginning in 1997.  

The veteran's testimony disclosed that she had been awarded 
benefits from the Social Security Administration (SSA) 
because of her disability, and the Board Remand notified the 
veteran that VA would seek to obtain the clinical and 
administrative records underlying the SSA decision.  VA 
obtained those records, and the veteran was so notified in 
July 2003.   

The RO furnished the veteran a letter in November 2001, 
affording her the opportunity to submit additional evidence 
as discussed in the Board's August 2001 Remand.  The veteran 
identified an additional source of mental health services, 
and authorized VA to seek information from USASCRUR and the 
Army Crime Records Center.  A statement received from the 
veteran in mid-November 2001 reflects that the veteran 
intended to attempt to obtain telephone records to support 
her husband's testimony, although no such evidence has been 
received.  

By a supplemental statement of the case (SSOC) issued in July 
2003, the veteran was informed that efforts of the USASCRUR 
and Army Criminal Investigations Unit had failed to find any 
objective evidence corroborating the stressors she described.  
The cover letter to the SSOC advised the veteran that she had 
60 days to submit additional comment.  

The Board notes that, even though the RO's November 2001 
letter requested a response within 60 days, it also expressly 
notified the veteran that she had one year to submit the 
requested information and/or evidence, in compliance with 
38 U.S.C.A. § 5103(b).  The August 2001 Remand also advised 
the veteran of specific evidence that VA would seek, 
including records of service department criminal 
investigations, and advised the veteran that she would be 
notified when this development was completed.  Nearly two 
years expired from the issuance of the August 2001 Board 
Remand before the veteran was notified, in a July 2003 SSOC, 
that VA had completed development of the evidence for which 
it was responsible.  The record, including correspondence 
from the veteran, reflects that the veteran was aware during 
this period of nearly two years that her appeal was open and 
that evidence was under development.  

The Board concludes that the VCAA notification letter sent to 
the veteran in November 2001, together with the Board's 
discussions at the Travel Board hearing and in the Board's 
Remand advising the veteran and her spouse of the types of 
evidence which might provide objective corroboration of the 
described stressors, were legally sufficient to meet the 
VCAA's requirements as to notice.  The veteran was advised of 
the evidence required to substantiate the claim, and was 
advised as to what evidence she was responsible to submit or 
identify and what VA would be responsible to attempt to 
obtain.  See Paralyzed Veterans of America, et. al. v. 
Secretary of Department of Veterans Affairs (PVA), 345 F.3d 
1334 (Fed. Cir. 2003); Disabled American Veterans, et. al. v. 
Secretary of Department of Veterans Affairs (DAV), 327 F.3d 
1339 (Fed. Cir. 2003).  

Although the analysis in this decision differs somewhat from 
the analysis in the SOC and SSOC, inasmuch as the Board 
concludes that the veteran does not have a current medical 
diagnosis of PTSD, the various notifications to the veteran 
beginning with the December 1997 rating decision have 
included information to the veteran that an award of service 
connection for PTSD requires a current medical diagnosis of 
that disorder.  The SSOC advised the veteran that the medical 
evidence from the veteran's current provider had been 
received.  The Board notes that, in the authorization for 
that release, the veteran herself indicated that she was 
being treated for "stress" rather than PTSD.  

The Board also realizes that the regulations that provided a 
claimant one year to submit evidence, 38 C.F.R. 
§§ 3.159(b)(1) and 19.9(a)(2)(ii), have been held to be 
invalid to the extent they provide a claimant "not less than 
30 days" to respond to a VCAA notification letter contrary 
to 38 U.S.C.A. § 5103(b).  In this case, the discussion with 
the veteran at her March 2001 Travel Board hearing, and the 
discussion in the August 2001 Board Remand essentially 
advised the veteran that she could submit additional evidence 
while her claim was in development.  The discussion in the 
RO's November 2001 letter advised the veteran that the claim 
was in development, and that evidence could be submitted for 
one year, even if VA made a decision on the claim.  The July 
2003 SSOC advised the veteran that VA had completed 
development of the evidence for which it was responsible and 
had made a decision on her claim.  Thus, the notifications to 
the veteran were sufficient to advise her that she was being 
afforded one year or more to submit the requested information 
and/or evidence, in compliance with 38 U.S.C.A. § 5103(b).  
Therefore, she was notified properly of her statutory rights.

Moreover, the factual situation in the PVA case, which 
involved a VCAA notification letter provided by the RO, is 
distinguishable from the circumstances of this case.  In the 
PVA case, the court was concerned with the "premature 
denial" of a claim before the one-year period for submitting 
evidence had expired to ensure that a claimant had sufficient 
time to submit evidence before an adjudication was made.  
Here, the veteran has had several years to submit evidence in 
support of her claim (filed in February 1997).  In fact, she 
has done so, testifying at the hearings in 1998 and 2001, and 
submitting statements and attempting to identify evidence 
throughout that time period.  It now appears that VA has all 
the information needed to decide the case.  The Board 
concludes that it would be pointless to require VA and the 
veteran to delay a decision in this long-standing appeal when 
it is clear that no additional evidence is available or 
forthcoming, an all efforts to develop the appeal have been 
exhausted.  

Factual Background

The veteran completed a degree in Managements Systems at a 
college in Iowa in May 1982.  Service administrative records 
show that she enlisted in military service on September 24, 
1982.  Government transportation was authorized at that time, 
and the veteran was assigned to proceed to basic training at 
Fort Jackson, South Carolina, beginning September 27, 1982.  
Service medical records disclose that she was 34 years old, 
5'1" tall, and weighed 131 pounds.  Her vision was examined 
at the basic training unit to which she was assigned on 
September 28, 1982.  On October 4, 1982, the veteran 
complained of a sore throat.  Triaminic, salt-water gargles, 
and aspirin were recommended.  

Service personnel records reflect that the veteran was 
counseled on October 7, 1982 regarding her difficulties with 
physical training.  Factors referenced in the records 
regarding these difficulties included the veteran's physical 
condition and her age.  The sergeant who completed the 
October 7 counseling memorandum recommended that she be 
discharged.  At this point, the veteran had been in basic 
training for approximately 10 calendar days.  She was 
counseled again on October 8, 1982.  It was noted that her 
inability to complete physical requirements was causing her 
to break down emotionally and she had made comments about 
committing suicide.  The veteran was referred to a chaplain.  
The counselor noted that, when confronted with discussion of 
her comments about possible suicide, she cried, screamed, and 
became incoherent.  On October 9, she was referred to the 
company commander for further counseling.  She was offered 
mental health assessment, but declined, stating that "they 
always found something wrong."

On October 12, the veteran sought medical treatment for 
complaints of vaginal discomfort and burning on the soles of 
the feet.  On October 13, 1982, the veteran was evaluated by 
the community mental health unit.  The veteran reported 
inability to get along with peers and officers, and 
difficulty doing physical training.  She said that everyone 
was picking on her.  She was oriented.  Her mood was 
irritable.  There was minor paranoid ideation.  The examiner 
stated the veteran manifested hypersensitivity, poor 
judgment, emotional instability, and impulsivity.  She had a 
history of family problems, and was experiencing marital 
difficulties.  The examiner recommended that the veteran be 
pulled from basic training to do detail work, and recommended 
consideration of discharge.  It was also recommended that the 
veteran not be allowed to fire a weapon.  A mixed personality 
disorder was diagnosed.  The veteran was scheduled to return 
for supportive counseling on October 14, but the records do 
not show that this appointment was kept.

The veteran wrote a statement in which she indicated that she 
did not believe she could adjust to military life as a result 
of personal problems and physical problems.   This statement 
appears to be attached to a counseling memorandum dated 
October 14, 1982.  A proposal to separate the veteran, based 
on lack of physical aptitude and inability to adapt to 
military life, was signed by the Commanding Officer.  A 
memorandum reflecting that the veteran was advised of the 
proposed discharge and that the proposal was initialed by the 
veteran was issued October 14, 1982.  On that same date, the 
veteran signed a statement refusing counsel by a Judge 
Advocate General Corp officer, and she declined a separation 
medical examination.  

A memorandum reflecting approval of the veteran's proposed 
discharge was issued on October 18, 1982.  On October 20, 
1982, she was reassigned to the Army separation transfer 
point for separation processing, and her discharge was 
effective October 22, 1982.  Her DD214, Certificate of 
Release or Discharge from Active Duty, reflects that she had 
29 days of active service.  

VA clinical records reflect that the veteran reported in 1997 
that she began having panic attacks beginning one year after 
service.  She also reported that she began having new 
symptoms, not like the panic attacks immediately post-
service, starting in February 1997.  The veteran reported 
sexual assault while in military, as well as being threatened 
that she would be raped and murdered.  She reported that she 
had overcome her family problems from early life and had 
completed a junior college degree by the time she enlisted in 
1982.  

April 1997 VA clinical records show that the veteran reported 
that she had begun to re-experience the feelings she went 
through in the military as a result of personal assault and 
traumas when she learned that a disabled daughter had been 
raped and two grandsons sexually abused by a former family 
member.  In May 1997, a diagnosis of clinical depression with 
sleep disturbance, psychomotor retardation, and suicidal 
ideation, was assigned.  The VA provider, now having more 
complete reports of the veteran's history, concluded that: 

It appears that most of the problems 
identified are of a long term 
nature, and I would hesitate to link 
any of them directly to her 
experiences during her brief stay in 
the Army, which is not to say that 
those experiences did not have a 
negative affect on her well-being.  
I'm sure that they did, however, it 
is not likely that she would have 
functioned in any significantly 
different manner without having 
experienced those events.  

On VA examination conducted in June 1997, the examiner 
concluded that the veteran had mild PTSD.  The examiner 
noted, in discussing the diagnosis, that "she reports 
emotional abuse and harassment from her sergeant which 
effected (sic) her significantly, as detailed above." 

A non-VA psychologist who examined the veteran for SSA 
purposes in December 1999 concluded that the veteran's 
ability to relate to others was borderline, that she was 
delusional and paranoid, and was greatly in need of 
psychiatric treatment.  The diagnosis was delusional 
disorder, rule out schizophrenia.  

On SSA examination in April 2000, the examiner questioned the 
December 1999 diagnosis, indicating that there was no 
evidence of psychotic thoughts, and noted that the veteran 
had not required emergency care for anxiety, panic attacks, 
or the like, even though she had not received any treatment 
since December 1997, when she was found not to be eligible 
for VA treatment.  The examiner specifically noted that the 
veteran "believes current mental problems are result of an 
incident which occurred in 1982 while she was in the Army," 
and also stated the veteran's allegations were "partially 
credible."

On psychiatric examination for SSA purposes in June 2000, 
PTSD was again diagnosed.  The report of that examination 
reflects that the only history provided by the veteran 
related to stressors during her active duty in military 
service.

In a SSA decision issued in January 2001, the veteran was 
awarded Supplemental Security Income (SSI) (a benefit 
provided for individuals who have earned too little to be 
eligible for Social Security Disability Income).  The 
clinical records on which that decision was based include VA 
clinical records from February through December 1997.  The 
diagnoses in those records included PTSD, depression, and 
anxiety.  

The veteran was diagnosed as having a thought disorder on  
private clinical records dated from May 2001 to January 2002.  
Her flow of thought was not logical and sequential, and 
symptoms of psychosis were noted.  After use of Respiridol, 
the veteran became more functional, her flow of thought was 
described as logical and sequential, and much improvement was 
noted.  The veteran's daughter also confirmed that the 
veteran "talk[ed] better" and was able to help around the 
house.  These treatment notes show that the veteran's husband 
had been hospitalized with a spinal cord injury.

Private clinical notes in January 2002 reflect that the 
veteran returned to treatment after the death of her husband.  
Hallucinations, delusions, formal thought disorder, low 
functioning, and bizarre behavior, were noted.  The assigned 
diagnosis was schizophrenia-CUT (chronic undifferentiated 
type), improved with use of Respiridol.  

Analysis

The law provides that service connection may be granted for 
disability resulting from disease or injury that was incurred 
in or aggravated by a veteran's active service, or may be 
granted for diseases defined as chronic, to include a 
psychosis, when manifested (generally to a degree of 10 
percent or more) within a specified presumptive period after 
separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 
5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 
(2003).

Service connection may also may be granted where evidence, 
regardless of its date, shows that a veteran had a chronic 
condition in service and still has the condition. 38 C.F.R. § 
3.303(b).  When the fact of chronicity in service is not 
adequately supported, then a showing of continuity after 
discharge is required to support the claim.  See 38 C.F.R. § 
3.303(b); Savage v. Gober, 10 Vet. App. at 488, 495-96 
(1997).  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).

In order for a claim to be granted, there must be competent 
evidence of current disability (established by medical 
diagnosis); of incurrence or aggravation of a disease or 
injury in service (established by lay or medical evidence); 
and of a nexus between the inservice injury or disease and 
the current disability (established by medical evidence).  
Medical evidence is required to prove the existence of a 
current disability and to fulfill the nexus requirement.  See 
Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. 
Brown, 5 Vet. App. 91, 93 (1993).

Applicable regulations provide that service connection for 
PTSD 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, in accordance with the criteria 
set forth in 38 C.F.R. § 3.304(f).   

The veteran submitted her claim in February 1997.  On March 
7, 1997, a revision to 38 C.F.R. § 3.304(f) became effective.  
See 64 Fed. Reg. 32,807 (1999).  Another, more substantive 
revision, became effective March 7, 2002.  See 67 Fed. Reg. 
10,330 (2002).  Under the "old" regulation, as in effect 
when the veteran's claim was received, service connection for 
PTSD required a current, clear medical diagnosis of PTSD.  
Under the most recent version of the regulation, alternative 
types of evidence that may serve as objective corroboration 
of accounts of personal assault are set forth.  The version 
effective in 2002 incorporates provisions of VA's 
ADJUDICATION PROCEDURE MANUAL M21-1 ("M21").  The M21 
provisions reflected in the 2002 revision of 38 C.F.R. 
§ 3.304(f) were in use during the pendency of this claim.  
Court decisions make it clear that the M21 provisions, as 
reflected in the 2002 version of the regulation, are more 
favorable to the veteran than prior provisions.  Accordingly, 
the Board will discuss only the most favorable version of the 
regulations, the 2002 version, in its analysis, and will not 
discuss the less favorable 1996 version of the regulations in 
effect when the veteran's claim was received.  

Regardless of the version of 38 C.F.R. § 3.304(f) applied, a 
current medical diagnosis of PTSD is required in order to 
warrant a grant of service connection for such disorder.  In 
this regard, the Board finds that the evidence reflects a 
current diagnosis of schizophrenia, although the veteran's 
mental disorder has been variously diagnosed, including the 
diagnoses of PTSD, in the past.  

Although a diagnosis of PTSD was assigned by some providers, 
the veteran's symptoms and diagnoses have varied.  The Board 
finds that the most recent clinical records, dated in 2001 
and 2002, are more persuasive than the older records.  The 
more recent records reflect that the therapy prescribed based 
on the assigned diagnosis resulted in improvement in the 
veteran's functioning.  The prior records reflect a 
divergence of diagnoses, with some examiners concluding that 
delusions were present or that a diagnosis of schizophrenia 
was appropriate, and some examiners determining that the 
veteran's symptoms were due to depression, anxiety, or PTSD.  
As such, the Board finds that the veteran does not currently 
have a medical diagnosis of PTSD, and thus an essential 
requirement for service connection for that disorder has not 
been met.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995); 
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), Watson v. 
Brown, 4 Vet. App. 309, 314 (1993); Rabideau v. Derwinski, 2 
Vet. App. 141, 143 (1992).  
 
Further, the Board further concludes that even if the veteran 
had a current medical diagnosis of PTSD, the preponderance of 
the evidence would be against a determination that PTSD, if 
present, was causally related to her service.  In this 
regard, the Board notes that the evidence necessary to 
establish the incurrence of a stressor during service to 
support a claim for 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).  In this case, the veteran does not and there is 
no evidence that that she participated in combat during her 
29 days of service.   

Where a determination is made that the 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 stressor.  See Cohen v. Brown, 10 
Vet. App. 128, 147 (1997).  

There is no corroborative evidence in the veteran's service 
medical or administrative records that supports her 
description of stressors in service.  VA sought corroborative 
records from the USASCRUR and the Army CID, but no 
verification of any allegation was located.  However, the 
absence of corroboration in service records, when there is 
nothing in the available records that is inconsistent with 
other evidence, does not relieve the BVA of its obligations 
to assess the credibility and probative value of the other 
evidence.  Doran v. Brown, 6 Vet. App. 283 (1994).  

Where a veteran contends that PTSD resulted form personal or 
sexual assault, corroborating evidence of a stressor is not 
restricted to service records, but may be obtained from other 
sources.  38 C.F.R. § 3.304(f) (2003).  Nevertheless, a 
veteran's testimony, by itself, cannot establish the 
occurrence of a noncombat stressor.  Cohen v. Brown, 10 Vet. 
App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-96 
(1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).   

In this case, the veteran has provided statements and 
testimony regarding experiences of sexual trauma and personal 
assault in service, and the veteran's spouse also testified 
regarding the veteran's statements to him about these 
experiences.  In assessing the credibility of these 
statements, the Board notes several difficulties.  The length 
of time that elapsed from the veteran's discharge until the 
time she first discussed the alleged in-service sexual 
traumas and personal assault diminishes the weight and 
persuasive value of the veteran's recollections.  Further, 
the evidence establishes that the veteran experienced 
numerous problems in her life, but she did not report other 
possible stressor events to some providers who determined 
that she had PTSD as the result of stressors in service.  

The persuasive value of the testimony of the veteran's spouse 
is likewise diminished because, although he testified that 
the veteran wrote to him about the events in service, he no 
longer had the letters.  He relied on his memories of what 
the veteran said in the letters.  The evidence, and the 
veteran's own testimony, reflects that she did not discuss 
the events in service with any mental health professional 
after service until 1997.  This delay casts doubt on the 
credibility of the spouse's testimony that the veteran had 
symptoms following service prior to 1997.  

The veteran testified that, when she was assaulted, she 
scratched and bit the instructor, and she sustained bruises.  
The veteran has stated that she did not report a physical 
altercation because she feared to do so.  The Board notes 
that the veteran was seen, at her request, for a sore throat, 
on October 4, six or seven calendar days after the veteran 
reported for active service.  On October 12 and October 13, 
just over a week later, she was again seen by health care 
professionals.  The Board notes that the veteran did not 
report any injuries and no injuries were noted.  She did not 
report concerns other than physical difficulty with 
performance of physical training.  

With regard to treatment for physical conditions, the service 
medical records do not contain any indication of treatment 
for such things as contusions or lacerations consistent with 
a personal assault involving restraint or a physical 
altercation.  Given the brief period of the veteran's active 
duty, and especially the even shorter period during which she 
was actually performing basic training, the lack of any 
notation or report of any physical injury of any type 
contradicts, at least to some extent, the veteran's testimony 
that the reason there is no notation of physical injury is 
because she was afraid to report an altercation with a person 
in authority.

As noted, the documentation, beginning in 1997, that the 
veteran told treating health care providers that she 
experienced stressful sexual situations or personal assault 
in service does not, simply by virtue of the fact that there 
are written clinical treatment notes, corroborate the 
veteran's reported stressors.  In particular, the Board notes 
that the treating providers who reached the diagnosis of PTSD 
assumed the truth of the veteran's reports, did not discuss 
the question of corroboration or verification, and did not 
discuss the effects of any other incident of the veteran's 
life as to the etiology of a current psychiatric disorder.  

In Patton v. West, 12 Vet. App. 272, 278 (1999), the Court 
emphasized that statements contained in prior decisions 
indicating that "something more than medical nexus evidence 
is required to fulfill the requirement for 'credible 
supporting evidence'", of a claimed stressor and that "[a]n 
opinion by a mental health professional based on a 
postservice examination of the veteran cannot be used to 
establish the occurrence of the stressor," were made in the 
context of discussing PTSD diagnoses other than those arising 
from personal assault.  Id. At 280; see also Cohen v. Brown, 
supra; Moreau, supra.  

With regard to personal assault cases, the Court in Patton 
pointed out that "VA has provided special evidentiary 
development procedures, including the interpretation of 
behavior changes by a clinician and interpretation in 
relation to a medical diagnosis."  Id. (citing VA 
Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c 
(8), (9)).  The Court has also held that these provisions of 
M21-1, which provide special evidentiary procedures for PTSD 
claims based on personal assault, are substantive rules that 
are the equivalent of VA regulations.  See YR v. West, 11 
Vet. App. 393 (1998); Cohen, supra.  

Specifically, M21-1, Part III, 5.14c subparagraph (8) 
(redesignated PartVI, paragraph 11.38b(2)), provides that 
"[i]f the military record contains no documentation that a 
personal assault occurred, alternative evidence might still 
establish an inservice 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 not limited 
to): visits to a medical or counseling clinic or dispensary 
without specific diagnosis or specific ailment; changes in 
performance and performance evaluations; among other 
circumstances which are not alleged in this case.  
Subparagraph (9) provides that "[r]ating boards may rely on 
the preponderance of evidence to support their conclusions 
even if the record does not contain direct contemporary 
evidence.  In personal assault claims, secondary evidence 
which documents such behavior changes may require 
interpretation in relationship to the medical diagnosis by a 
VA neuropsychiatric physician."  The Board has searched the 
veteran's service administrative and service medical records 
for the various types of evidence which may be evidence of a 
personal or sexual assault, such as evidence of behavioral 
changes or treatment for physical conditions consistent with 
the claim.  See, e.g., 38 C.F.R. § 3.304(f)(3); M21-1,  
11.38c. 

The veteran contends that, because she was able to attain a 
degree prior to service, the fact that she was unable to hold 
a job after service represented a behavioral change.  The 
objective evidence of record, a report of SSA records of the 
veteran's income, reflects that the veteran reported income 
of less than $200 in 1967 and in 1970, slightly over $2,000 
in 1972, $1,000 in income in 1976, $1,146 in 1977, and $640 
in 1982.  The veteran reported no income in 1968, 1969, 1971, 
1973, 1974, 1975, 1978, 1979, 1980, 1981 and 1983 to 1986.  
The veteran's highest reported income, $8,533, was 1989.  
Thus, the evidence reflects that the veteran's highest 
reported yearly income prior to her service induction in 
1982, when she was 34 years old, was $2,000 earned in 1972.  
This objective evidence clearly reflects that, from age 19 
(in 1967) to age 34 (in 1982), a period of 15 years, the 
veteran had no reported income in 10 of those years, and 
reached an income in excess of $1,000 in only two years of 
that 15-year period.  Thus, the objective evidence reasonably 
established that the veteran had no substantially gainful 
employment prior to service.  

By contrast, the veteran's post-service earnings record is 
considerably greater than her pre-service earnings record, 
although the evidence reflects that her earnings were never 
commensurate with her academic credentials.  The evidence 
preponderates against a finding that the veteran's inability 
to hold substantially gainful employment following her active 
service was a behavior change which would tend to support her 
assertions that she incurred personal assault and trauma in 
service.

The veteran and her spouse also contended that the veteran's 
husband reported the incidents of personal assault and trauma 
to individuals in the veteran's chain of command, and that 
this reporting contributed to the speed of the veteran's 
discharge.  However, no objective evidence that the veteran's 
husband contacted anyone at the veteran's base was received 
despite a discussion with the veteran and her husband at the 
Travel Board hearing of various types of evidence that might 
support the allegations. 

The veteran and her spouse indicated that letters which might 
have served to corroborate the veteran's contemporaneous 
reports of the incidents in service were no longer available.  
Telephone records were not received.  The veteran's period of 
participation in basic training was so brief prior to the 
first notations that she was unable to meet physical 
standards and was so brief prior to written recommendations 
that she be discharged that it casts some doubt on the 
credibility of the assertion that the husband's contact with 
the chain of command, after receiving a letter or letters 
from the veteran, could have affected the initial 
recommendations that the veteran be discharged.  

As previously discussed, in order for a grant of service 
connection for PTSD to be warranted there must be credible 
evidence linking the veteran's PTSD to a verified in-service 
stressor.  In this case, despite the efforts of the RO, 
including on Remand and completion of all directions in the 
Board's Remand, there has been no verification of the claimed 
stressor.  

The veteran has alleged that she had no psychiatric disorder 
prior to her service.  The mental health professional who 
examined the veteran 14 calendar days after she began basic 
training, however, diagnosed a personality disorder.  The 
veteran contends that this diagnosis reflects that she 
incurred a psychiatric disorder in service.  However, since 
there is no current diagnosis of personality disorder, 
service connection could not now be granted for a personality 
disorder, even if service connection for such disorder could 
be granted.  In this regard, the Board notes that a 
personality disorder is defined by regulation as a disorder 
for which service connection cannot be granted.  38 C.F.R. §§ 
3.303(c), 4.9 (2003); Winn v. Brown, 8 Vet. App. 510, 516 
(1996).

For the reasons discussed, the Board concludes that the 
preponderance of the evidence establishes that the veteran 
does not currently have PTSD related to service, and the 
requirements for service connection for that disorder are not 
met. 


ORDER

The appeal for service connection for PTSD, including as due 
to personal assault or trauma, is denied. 



	                        
____________________________________________
	CHARLES E. HOGEBOOM
	Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA 
or Board) is the final decision for all issues addressed in 
the "Order" section of the decision.  The Board may also 
choose to remand an issue or issues to the local VA office 
for additional development.   If the Board did this in your 
case, then a "Remand" section follows the "Order."  However, 
you cannot appeal an issue remanded to the local VA office 
because a remand is not a final decision. The advice below on 
how to appeal a claim applies only to issues that were 
allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do 
not need to do anything.  We will return your file to your 
local VA office to implement the BVA's decision.  However, if 
you are not satisfied with the Board's decision on any or all 
of the issues allowed, denied, or dismissed, you have the 
following options, which are listed in no particular order of 
importance: 
?	Appeal to the United States Court of Appeals for 
Veterans Claims (Court)
?	File with the Board a motion for reconsideration of this 
decision
?	File with the Board a motion to vacate this decision 
?	File with the Board a motion for revision of this 
decision based on clear and unmistakable error. 
Although it would not affect this BVA decision, you may 
choose to also: 
?	Reopen your claim at the local VA office by submitting 
new and material evidence. 
There is no time limit for filing a motion for 
reconsideration, a motion to vacate, or a motion for revision 
based on clear and unmistakable error with the Board, or a 
claim to reopen at the local VA office.  None of these things 
is mutually exclusive - you can do all five things at the 
same time if you wish.  However, if you file a Notice of 
Appeal with the Court and a motion with the Board at the same 
time, this may delay your case because of jurisdictional 
conflicts. If you file a Notice of Appeal with the Court 
before you file a motion with the BVA, the BVA will not be 
able to consider your motion without the Court's permission. 

How long do I have to start my appeal to the Court?  You have 
120 days from the date this decision was mailed to you (as 
shown on the first page of this decision) to file a Notice of 
Appeal with the United States Court of Appeals for Veterans 
Claims.  If you also want to file a motion for 
reconsideration or a motion to vacate, you will still have 
time to appeal to the Court.  As long as you file your 
motion(s) with the Board within 120 days of the date this 
decision was mailed to you, you will then have another 120 
days from the date the BVA decides the motion for 
reconsideration or the motion to vacate to appeal to the 
Court.  You should know that even if you have a 
representative, as discussed below, it is your responsibility 
to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for 
Veterans Claims?  Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the 
procedure for filing a Notice of Appeal, the filing fee (or a 
motion to waive the filing fee if payment would cause 
financial hardship), and other matters covered by the Court's 
rules directly from the Court. You can also get this 
information from the Court's web site on the Internet at 
www.vetapp.uscourts.gov, and you can download forms directly 
from that website.  The Court's facsimile number is (202) 
501-5848. 

To ensure full protection of your right of appeal to the 
Court, you must file your Notice of Appeal with the Court, 
not with the Board, or any other VA office. 

How do I file a motion for reconsideration? You can file a 
motion asking the BVA to reconsider any part of this decision 
by writing a letter to the BVA stating why you believe that 
the BVA committed an obvious error of fact or law in this 
decision, or stating that new and material military service 
records have been discovered that apply to your appeal. If 
the BVA has decided more than one issue, be sure to tell us 
which issue(s) you want reconsidered. Send your letter to: 
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420


Remember, the Board places no time limit on filing a motion 
for reconsideration, and you can do this at any time. 
However, if you also plan to appeal this decision to the 
Court, you must file your motion within 120 days from the 
date of this decision. 

How do I file a motion to vacate? You can file a motion 
asking the BVA to vacate any part of this decision by writing 
a letter to the BVA stating why you believe you were denied 
due process of law during your appeal. For example, you were 
denied your right to representation through action or 
inaction by VA personnel, you were not provided a Statement 
of the Case or Supplemental Statement of the Case, or you did 
not get a personal hearing that you requested. You can also 
file a motion to vacate any part of this decision on the 
basis that the Board allowed benefits based on false or 
fraudulent evidence.  Send this motion to the address above 
for the Director, Management and Administration, at the 
Board.  Remember, the Board places no time limit on filing a 
motion to vacate, and you can do this at any time. However, 
if you also plan to appeal this decision to the Court, you 
must file your motion within 120 days from the date of this 
decision. 

How do I file a motion to revise the Board's decision on the 
basis of clear and unmistakable error? You can file a motion 
asking that the Board revise this decision if you believe 
that the decision is based on "clear and unmistakable error" 
(CUE).  Send this motion to the address above for the 
Director, Management and Administration, at the Board. You 
should be careful when preparing such a motion because it 
must meet specific requirements, and the Board will not 
review a final decision on this basis more than once. You 
should carefully review the Board's Rules of Practice on CUE, 
38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified 
representative before filing such a motion. See discussion on 
representation below. Remember, the Board places no time 
limit on filing a CUE review motion, and you can do this at 
any time. 

How do I reopen my claim? You can ask your local VA office to 
reopen your claim by simply sending them a statement 
indicating that you want to reopen your claim.  However, to 
be successful in reopening your claim, you must submit new 
and material evidence to that office. See 38 C.F.R. 3.156(a). 

Can someone represent me in my appeal?  Yes. You can always 
represent yourself in any claim before VA, including the BVA, 
but you can also appoint someone to represent you.  An 
accredited representative of a recognized service 
organization may represent you free of charge.  VA approves 
these organizations to help veterans, service members, and 
dependents prepare their claims and present them to VA. An 
accredited representative works for the service organization 
and knows how to prepare and present claims. You can find a 
listing of these organizations on the Internet at: 
www.va.gov/vso.  You can also choose to be represented by a 
private attorney or by an "agent." (An agent is a person who 
is not a lawyer, but is specially accredited by VA.) 

If you want someone to represent you before the Court, rather 
than before VA, then you can get information on how to do so 
by writing directly to the Court.  Upon request, the Court 
will provide you with a state-by-state listing of persons 
admitted to practice before the Court who have indicated 
their availability to represent appellants.  This information 
is also provided on the Court's website at 
www.vetapp.uscourts.gov. 

Do I have to pay an attorney or agent to represent me?  
Except for a claim involving a home or small business VA loan 
under Chapter 37 of title 38, United States Code, attorneys 
or agents cannot charge you a fee or accept payment for 
services they provide before the date BVA makes a final 
decision on your appeal. If you hire an attorney or 
accredited agent within 1 year of a final BVA decision, then 
the attorney or agent is allowed to charge you a fee for 
representing you before VA in most situations.  An attorney 
can also charge you for representing you before the Court.  
VA cannot pay fees of attorneys or agents. 

Fee for VA home and small business loan cases:  An attorney 
or agent may charge you a reasonable fee for services 
involving a VA home loan or small business loan.  For more 
information, read section 5904, title 38, United States Code. 

In all cases, a copy of any fee agreement between you and an 
attorney or accredited agent must be sent to: 

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement 
for reasonableness, or you or your attorney or agent can file 
a motion asking the Board to do so. Send such a motion to the 
address above for the Office of the Senior Deputy Vice 
Chairman at the Board. 


VA 
FORM
JUN 
2003 
(RS) 
 
4597
Pa
ge 
2