Citation Nr: 0531646 Decision Date: 11/21/05 Archive Date: 11/30/05 DOCKET NO. 96-48 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 Robert C. Scharnberger, Counsel INTRODUCTION The veteran served on active duty from October 1972 to June 1974. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 1995 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). This case has previously been remanded by the Board on several occasions for additional development. That development having been completed, the case is now ready for appellate review. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the veteran's claim has been obtained or requested by the RO. 2. The medical evidence does establish that the veteran has PTSD, which is shown to be related to inservice stressors. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for PTSD requires (1) medical evidence indicating a current diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. 3.304(f) (2005). The veteran contends that he has PTSD as a result of inservice stressors including alleged rape by his platoon sergeant. The veteran's service personnel records and service medical records do not contain any evidence of this incident, but there is also nothing in the service records to contradict it. The veteran has consistently alleged that he was raped in February or March 1974 by his platoon sergeant. For PTSD cases involving personal assault there is an additional duty to assist the veteran with the development of his claim for service connection for PTSD. Specifically, the RO must consider all of the special provisions of VA Adjudication Procedure Manual M21-1 (M21-1), Part III, regarding personal assault. 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). Where 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 changes 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 or 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) (2005); Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21-1 manual evidentiary procedures apply in PTSD personal assault cases). In this case, the veteran did have a history of minor misconduct prior to the time of the reported rape. In August 1973 he was given an Article 15 nonjudicial punishment for being absent from his place of duty without authority. In October 1973 he was again disciplined for failure to maintain a car registration of a private vehicle, and in early February 1974 he was disciplined for being drunk on duty. The veteran's behavior did exhibit signs of change in that he did not receive any further discipline after the reported rape. The veteran also submitted a statement from the Rev. C. H. R. Rev. C. H. R. stated that he was the veteran's home clergyman in 1974 and that he received word from the veteran of the rape incident. Rev. C. H. R stated that he wrote to the veteran's commanding officer requesting a discharge for the veteran. The record shows that the veteran was discharged a few months later, which was several months prior to end of his two-year service obligation. The Board finds that the statement from Rev. C. H. R. is both credible and probative with respect to the rape reported by the veteran. The veteran apparently did not report the rape to any military authorities, but he did report it to his minister at home at the time it happened. There is nothing in the record to contradict that, and no reason to find Rev. C. H. R's statement not credible. This type of information is sufficient to substantiate a stressor based on the provisions of M21-1, Part III, 5.14c(7)(a)-(o). In any event, if a stressor is confirmed, the veteran should be provided examination to determine the diagnosis and etiology of his claimed disability. The veteran was provided a VA examination in June 1996. The examiner reviewed the claims folder and interviewed the veteran. The veteran reported his history of being raped in service.. The examiner diagnosed the veteran with PTSD due to personal assault (homosexual rape). The Board has found that the veteran's stressor is verified. The VA examiner has found that the stressor was sufficient to have caused PTSD, and that it in fact did cause the veteran's PTSD. Based on the above, the Board finds that service connection is warranted for the veteran's PTSD. The statement from Rev. C. H. R. is sufficient to corroborate the veteran's report of a rape, and the VA examination links PTSD to service. Accordingly, the preponderance of the evidence supports a grant of service connection for the veteran's PTSD. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2005). There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (hereinafter, "the VCAA"), which is currently codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2005). Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the new law does not preclude the Board from granting entitlement to service connection for PTSD. This is so because the Board is taking action favorable to the appellant by granting the claim on appeal in full. Granting the claim at this point poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ CONSTANCE B. TOBIAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs