Citation Nr: 0535189 Decision Date: 12/30/05 Archive Date: 01/10/06 DOCKET NO. 02-12 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert C. Scharnberger, Counsel INTRODUCTION The veteran served on active duty from November 1957 to January 1959. This case came before the Board of Veterans' Appeals (the Board) on appeal from a February 2001 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). In June 2003 the veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge designated by the Chairman of the Board to conduct that hearing pursuant to 38 U.S.C.A. § 7102(b) (West 2002). A copy of the transcript of that hearing is in the claims file. 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. 3. There is no competent medical evidence that any other psychiatric disorder is related to service. CONCLUSIONS OF LAW 1. PTSD was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2005). 2. No other psychiatric disability was incurred in or aggravated by, active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service connection 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 she has PTSD as a result of inservice stressors including sexual harassment and sexual assault. The veteran's service personnel records and service medical records do not contain any evidence of these incidents, but there is also nothing in the service records to contradict the veteran's assertions. The veteran has consistently alleged that she was harassed and assaulted in service. 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's service records show that she was well adjusted to service from the time she joined the Navy in November 1957 until October 1958. The veteran alleges she was harassed and assaulted in the summer of 1958. In October 1958 she sought psychiatric treatment, claiming a life-long fear of water. In January 1959 the veteran was AWOL for a day and was given a psychiatric evaluation. She was upset, crying, and very much wanted to be discharged from the Navy. The veteran was diagnosed with an immature personality, and an emotional instability reaction. The veteran's treating physician, Dr. Vanessa Gordon-Brown, indicated that she disagreed with the diagnosis of a personality disorder. She cited DSM-IV that suggests caution in diagnosing personality disorders during an episode of a mood disorder or anxiety disorder. Dr. Gordon-Brown stated her opinion that behavior changes like the veteran exhibited in January 1959 were without identifiable reasons, which suggested a traumatic event. The Board finds that the service medical records, combined with the veteran's testimony, and the opinion of the veteran's treating are both credible and probative with respect to the harassment and assault reported by the veteran. The veteran exhibited behavior changes after a year in service that are strongly suggestive of a traumatic incident in service. 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's treating physician at the VA Medical center has diagnosed the veteran with PTSD and related to her experiences in service. This diagnosis is based on Dr, Gordon-Browns long history of treatment with the veteran and cites DSM-IV. Dr. Gordon- Brown has examined the veteran's service medical records in making this diagnosis. The veteran was provided a VA examination in December 2004. The examiner diagnosed the veteran with major depressive disorder but did not find a diagnosis of PTSD. The VA examiner indicated his opinion that the veteran's major depressive disorder was not linked to service. The examiner did not specifically address whether the veteran suffered from PTSD or not. The evidence is in relative equipoise, and therefore, applying the benefit of the doubt in the veteran's favor, the Board finds that the veteran does have PTSD and that it is linked to her in- service stressors. The Board has found that the veteran's stressor is verified. The veteran's VA treating physician 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 veteran's behavior changes in service are sufficient to corroborate the veteran's report of harassment and sexual assault, and the veteran's treating physician 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 is no medical evidence of any other psychiatric disorders that are related to service. VA treatment notes indicated a diagnosis of generalized anxiety disorder, but there is no suggestion that this is linked to service. The treatment notes also show depression, with no suggestion of a link to service. The VA examination in December 2004 indicated diagnoses of major depressive disorder and borderline personality disorder. The examiner gave the opinion that neither of these is related to service. There is no medical evidence that suggests any psychiatric disability related to service, other than the veteran's PTSD. Therefore, service connection is not warranted for any other psychiatric disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). II. VCAA On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). The VCAA imposes obligations on VA in terms of its duties to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (b) (2005); Quartuccio v. Principi. 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Court also held that VA must request that the claimant provide any evidence in her possession that pertains to the claim. Id. This "fourth element" comes from the language of 38 C.F.R. § 3.159(b)(1). The Board finds that the VCAA notice requirements have been satisfied. With regard to element (1), above, the Board notes that the RO sent the appellant a VCAA notice letter in May 2004 that told her what was necessary for her claim to be granted. In addition, by virtue of the rating decision on appeal, the statement of the case (SOC) and the Supplemental Statements of the Case (SSOCs), she was provided with specific information as to why her claim seeking service connection for a psychiatric disability was being denied, and of the evidence that was lacking. With regard to elements (2) and (3), the Board notes that the RO's May 2004 letter notified the appellant of her and VA's respective responsibilities for obtaining information and evidence under the VCAA. More specifically, the letter explained that VA would help her get such things as medical records, or records from other Federal agencies, but that she was responsible for providing any necessary releases and enough information about the records so that VA could request them from the person or agency that had them. Finally, with respect to element (4), the Board notes that the May 2004 letter asked the veteran to submit or identify any evidence that pertains to her claim. The Board is mindful that, in concluding that the VCAA notice requirements have been satisfied, the Board has relied on communications other than the RO's formal VCAA notice letters to the claimant. However, at its core, what the VCAA seeks to achieve is to give the appellant notice of the elements outlined above. Once that has been done, irrespective of whether it has been done by way of a single notice letter, or via more than one communication, the essential purposes of the VCAA have been satisfied. Here, the Board finds that, because each of the four content requirements of a VCAA notice has been met, any error in not providing a single notice to the appellant covering all content requirements was harmless. See, e.g., 38 C.F.R. § 20.1102 (2005); Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Court in Pelegrini also held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial AOJ decision was made prior to the veteran having been fully informed of the VCAA. However, the Board finds that any defect with respect to the VCAA notice requirement in this case was harmless error. As discussed above, the appellant has been provided "a meaningful opportunity to participate effectively in the processing of [his] claim by VA." Mayfield, 19 Vet. App. at 128. Therefore, "[t]he timing-of-notice error was thus nonprejudicial in this case." Mayfield, 19 Vet. App. at 128, (holding that section 5103(a) notice provided after initial RO decision can "essentially cure [] the error in the timing of notice" so as to "afford a claimant a meaningful opportunity to participate effectively in the processing of ... claim by VA") (citing Pelegrini, 18 Vet. App. at 122-24). In light of the content-complying notice that the RO provided prior to sending the case to the Board for de novo review, the appellant was not prejudiced by the delay in providing content-complying notice, because, under these circumstance, "the error did not affect the essential fairness of the adjudication", Mayfield, supra (holding timing-of-notice error nonprejudicial where fairness of adjudication was unaffected because appellant was able to participate effectively in processing of claim). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2005). The RO obtained service medical records, VA treatment records, private treatment records, and provided the veteran with a VA examinations. In addition, the veteran testified at a personal hearing. The veteran has not indicated that there is any additional evidence available to help support her claim for service connection for a psychiatric disability other than PTSD. The claim for PTSD is granted by this Board decision. Thus, on appellate review, the Board sees no areas in which further development is needed. The RO has essentially met the requirements of the VCAA, and there would be no benefit in developing this case further. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Under these circumstances, adjudication of this appeal, without referral to the RO for further consideration of the claim under the VCAA, poses no prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. at 394; VAOPGCPREC 16-92. ORDER Entitlement to service connection for PTSD is granted. Entitlement to service connection for any other psychiatric disorder is denied. ____________________________________________ CONSTANCE B. TOBIAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs