Citation Nr: 0620742	
Decision Date: 07/17/06    Archive Date: 07/26/06

DOCKET NO.  03-18 690A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, 
Massachusetts


THE ISSUE

Entitlement to service connection for post-traumatic stress 
disorder (PTSD).


REPRESENTATION

Appellant represented by:	Glenn R. Bergmann, Attorney at 
Law


WITNESS AT HEARING ON APPEAL

The appellant


ATTORNEY FOR THE BOARD

H. E. Brokowsky


INTRODUCTION

The veteran had honorable active service from August 1976 to 
March 1980.

This case comes before the Board of Veterans' Appeals (BVA or 
Board) on appeal from a September 2002 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Baltimore, Maryland, which denied the veteran's claims for 
service connection for PTSD and diabetes mellitus, including 
for the latter condition as secondary to Agent Orange 
exposure.

This case was first before the Board in April 2004, when the 
Board remanded it to the RO (via the Appeals Management 
Center (AMC)) for further development and consideration.  
This included taking the preliminary procedural due process 
steps set forth in M21-1, Part III, paragraph 5.14, insofar 
as the special handling required of a PTSD claim that, as 
here, is based on a personal (sexual) assault.  To this end, 
on remand, the veteran was given the opportunity to submit 
additional, alternative supporting evidence concerning her 
alleged assault - including showing behavioral changes, 
etc., and she was reexamined for psychiatric and 
psychological opinions concerning whether her case has merit.  
(Note:  the request for additional, alternative evidence was 
aside from a September 2001 statement already on file from 
her childhood friend, G.L.H.)

The Board issued a decision in January 2005 denying the 
veteran's claims for PTSD and diabetes mellitus, and she 
appealed to the U.S. Court of Appeals for Veterans Claims 
(Court).  She indicated, however, that she was only appealing 
the PTSD claim.  In December 2005, during the pendency of her 
appeal to the Court, her attorney and VA's Office of General 
Counsel - representing the Secretary of VA, filed a joint 
motion requesting that the Court vacate the Board's decision 
and remand the case for readjudication in compliance with 
directives specified.  The Court issued an order that same 
month granting the joint motion for remand and returned the 
case to the Board.

The RO in Boston, Massachusetts, now has jurisdiction over 
this appeal.


FINDINGS OF FACT

1.  The veteran was notified of the evidence needed to 
substantiate her claim and apprised of whose responsibility 
- hers or VA's, it was for obtaining the supporting 
evidence, and all relevant evidence necessary for an 
equitable disposition of her appeal has been obtained.

2.  The veteran did not engage in combat with the enemy; her 
alleged stressor, instead, involves a sexual assault.

3.  The most probative medical evidence on file acknowledges 
the veteran has PTSD, among other psychiatric conditions, but 
does not attribute the PTSD to the alleged sexual assault in 
service.


CONCLUSION OF LAW

The veteran's PTSD was not incurred or aggravated in service.  
38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. 
§§ 3.1, 3.102, 3.159, 3.303, 3.304 (2005).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA), codified at 38 
U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed 
into law on November 9, 2000.  Implementing regulations were 
created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326.  



VCAA notice must:  (1) inform the claimant about the 
information and evidence not of record that is necessary to 
substantiate the claim; (2) inform the claimant about the 
information and evidence that VA will seek to provide; (3) 
inform the claimant about the information and evidence the 
claimant is expected to provide; and (4) request or tell the 
claimant to provide any evidence in his or her possession 
that pertains to the claim.  See Pelegrini v. Principi, 18 
Vet. App. 112, 120-121 (2004) (Pelegrini II).  This "fourth 
element" of the notice requirement comes from the language 
of 38 C.F.R. § 3.159(b)(1) (2004).  Id., at 121.  But 
according to VA's General Counsel (GC), the Pelegrini II 
holding does not require that VCAA notification contain any 
specific "magic words."  See VAOPGCPREC 7-2004 (July 16, 
2004); see also VAOPGCPREC 1-2004 (February 24, 2004).

Pelegrini II also held that, to the extent possible, VCAA 
notice, as required by 38 U.S.C.A. § 5103, must be provided 
to a claimant before the initial unfavorable agency of 
original jurisdiction (AOJ or RO) decision on a claim for VA 
benefits.  See, too, Mayfield v. Nicholson, 19 Vet. App. 103, 
128 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 
Apr. 5, 2006) (also discussing the timing of the VCAA notice 
as it relates to prejudicial error).

Also recently, in Dingess v. Nicholson, the Court issued a 
decision which held that the VCAA notice requirements of 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 
five elements of a service connection claim.  Those five 
elements are:  1) veteran status; 2) existence of a 
disability; (3) a connection between the veteran's service 
and the disability; 4) degree of disability; and 5) effective 
date of the disability.  The Court held that upon receipt of 
an application for a service-connection claim, 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating or is necessary to substantiate the elements 
of the claim as reasonably contemplated by the application.  
See Dingess v. Nicholson, 
Nos. 01-1917, 02-1506, 2006 WL 519755 (Vet. App. March 6, 
2003).  



Additionally, this notice must include notice that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
Specifically, VA must notify the claimant that "should 
service connection be awarded, a schedular or extraschedular 
disability rating will be determined by applying relevant 
diagnostic codes in the rating schedule, found in Title 38, 
Code of Federal Regulations, to provide a disability rating 
from 0 percent to as much as 100 percent (depending on the 
disability involved) based on the nature of the symptoms of 
the condition for which disability compensation is being 
sought, their severity and duration, and their impact upon 
employment."  Id.  

Furthermore, the notice must "provide examples of the types 
of medical and lay evidence that the claimant could submit 
(or ask VA to obtain) that are relevant to establishing a 
disability - e.g., competent lay statements describing 
symptoms, medical and hospitalization records, medical 
statements, employer statements, job application rejections, 
and any other evidence showing exceptional circumstances 
relating to the disability."  Ibid.  

In this particular case at hand, the veteran was sent VCAA 
letters in September 2001 and August 2004.  The letters 
explained the type of evidence required to substantiate her 
claim for service connection for PTSD, as well as indicated 
what evidence she was responsible for obtaining and what VA 
had done and would do in helping her obtain supporting 
evidence.  Despite the inadequate notice provided her 
regarding a disability rating and an effective date if her 
claim for service connection is granted, this is 
nonprejudicial.  See Bernard v. Brown, 4 Vet. App. 384, 394 
(1993) (where the Board addresses a question that has not 
been addressed by the agency of original jurisdiction, i.e., 
the RO, the Board must consider whether the veteran has been 
prejudiced thereby).  This is because, as the Board will 
conclude below, the preponderance of the evidence is against 
her claim for service connection for PTSD, so any questions 
regarding the appropriate downstream disability rating and 
effective date to be assigned are rendered moot.  See 
Dingess, 2006 WL 519755, at *12 ("Other statutory and 
regulatory provisions are in place to ensure that a claimant 
receives assistance throughout the appeals 


process.  ...To hold that section 5103(a) continues to apply 
after a disability rating or an effective date has been 
determined would essentially render sections 7105(d) 
[SOC provisions] and 5103A [duty to assist provisions] and 
their implementing regulations insignificant and superfluous, 
thus disturbing the statutory scheme.")

The Board realizes there was no specific mention, per se, in 
the VCAA letters of the "fourth element" discussed in 
Pelegrini II, but the letters nonetheless explained that the 
veteran should identify and/or submit any supporting 
evidence.  The content of the September 2001 and August 2004 
VCAA notices therefore substantially complied with the 
specificity requirements of Quartuccio v. Principi, 16 Vet. 
App. 183 (2002) (identifying evidence to substantiate the 
claim and the relative duties of VA and the claimant to 
obtain evidence) and Charles v. Principi, 16 Vet. App. 370 
(2002) (identifying the document that satisfies VCAA notice).  
Also keep in mind the veteran had a hearing in March 2004 in 
Washington, DC, before the undersigned Veterans Law Judge 
(VLJ) of the Board, who further discussed the legal 
implications of the VCAA in terms of its attendant duty to 
notify and assist obligations.  Moreover, as already alluded 
to, the Board remanded her claim to the RO (AMC) in April 
2004 for further development and consideration.  
This included, most notably, taking the preliminary 
procedural due process steps set forth in M21-1, Part III, 
paragraph 5.14, insofar as the special handling required of a 
PTSD claim that, as here, is based on a personal (sexual) 
assault.  To this end, on remand, she was given the 
opportunity to submit additional, alternative supporting 
evidence concerning her alleged sexual assault - including 
showing consequent behavioral changes, etc., and she was 
reexamined for psychiatric and psychological opinions 
concerning whether her case has merit.  (Note:  the request 
for additional, alternative evidence was aside from a 
September 2001 statement already on file from her childhood 
friend, G.L.H.)

Indeed, even since receiving this case back from the Court, 
following the vacating of the Board's prior decision, the 
Board has sent the veteran and her attorney an additional 
letter in December 2005 giving them an opportunity for 
additional comment and to submit additional supporting 
evidence.  But there has been no response to that letter.

And as for the timing of the VCAA notice, the veteran was 
initially provided VCAA notice in September 2001, so prior to 
the RO's initial adjudication of her claim for service 
connection for PTSD in September 2002.  This complied with 
the Pelegrini II and Mayfield requirement that VCAA notice, 
to the extent possible, precede the RO's initial 
adjudication.  And, again, she has not indicated that 
she has any additional relevant evidence to submit or that 
needs to be obtained.  Indeed, to the contrary, during her 
March 2004 hearing, she repeatedly maintained there is 
sufficient evidence already on file to grant her claim.  
Consequently, "the record has been fully developed," and 
"it is difficult to discern what additional guidance VA 
could [provide] to the appellant regarding what further 
evidence [she] should submit to substantiate [her] claim."  
See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

A veteran is entitled to service connection for a disability 
resulting from a disease or an injury incurred in or 
aggravated in the line of duty while in the active military, 
naval, or air service.  See 38 U.S.C.A. § 1131 (West 2002); 
38 C.F.R. § 3.303(a) (2005).  In addition, service connection 
also is permissible for any disease diagnosed after 
discharge, when all the evidence, including that pertinent to 
service, establishes the disease was incurred in service.  
38 C.F.R. § 3.303(d).  
Certain conditions - such as psychoses, will be presumed to 
have been incurred in service if manifested to a compensable 
degree within one year after service.  38 U.S.C.A. §§ 1101, 
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  
This presumption, however, is rebuttable by probative 
evidence to the contrary.

And if there is no evidence of a chronic condition during 
service, or an applicable presumptive period, then a showing 
of continuity of symptomatology after service is required to 
support the claim.  See 38 C.F.R. § 3.303(b).  Evidence of a 
chronic condition must be medical, unless it relates to a 
condition to which lay observation is competent.  See Savage 
v. Gober, 10 Vet. App. 488, 495-498 (1997).  If service 
connection is established by continuity of symptomatology, 
there must be medical evidence that relates a current 
condition to that symptomatology.  Id.



When a veteran seeks service connection for a disability, due 
consideration shall be given to the supporting evidence in 
light of the places, types, and circumstances of service, as 
evidenced by service records, the official history of each 
organization in which he/she served, his/her military 
records, and all pertinent medical and lay evidence.  See 38 
U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).  

To establish entitlement to service connection for PTSD, in 
particular, there must be medical evidence diagnosing the 
condition in accordance with 38 C.F.R. § 4.125(a) (i.e., 
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.  See 38 C.F.R. § 3.304(f).

The evidence necessary to establish the occurrence of a 
recognizable stressor during service - to support a 
diagnosis of PTSD - will vary depending upon whether the 
veteran engaged in combat with the enemy.  Where it is 
determined, through recognized military citations or other 
supportive evidence, the veteran engaged in combat with the 
enemy and the claimed stressor is related to that combat, in 
the absence of clear and convincing evidence to the contrary, 
and provided that the claimed stressor is consistent with the 
circumstances, conditions, or hardships of his or her 
service, his or her lay testimony alone may establish the 
occurrence of the claimed in-service stressor.  See 38 C.F.R. 
§ 3.304(f) (as amended by 64 Fed. Reg. 32,807-32808 (1999)) 
(effective March 7, 1997) (implementing the decision in Cohen 
v. Brown, 10 Vet. App. 128 (1997)).  See also 38 U.S.C.A. 
§ 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat 
veterans).  However, where the veteran did not engage in 
combat or the claimed stressor is noncombat-related, the 
record must contain service records or other credible sources 
that corroborate his or her testimony as to the occurrence of 
the claimed stressor.  See Moreau v. Brown, 9 Vet. App. 389 
(1996); aff'd, 124 F. 3d 228 (Fed. Cir. 1997).



VA's General Counsel has held that the ordinary meaning of 
the phrase "engaged in combat with the enemy," as used in 38 
U.S.C.A. § 1154(b), requires that a veteran "have 
participated in events constituting an actual fight or 
encounter with a military foe or hostile unit or 
instrumentality."  VAOPGCPREC 12-99 (Oct. 18, 1999); 65 Fed. 
Reg. 6256-6258 (2000).  The General Counsel also indicated 
that the determination of whether a veteran engaged in combat 
with the enemy necessarily must be made on a case-by-case 
basis, and that absence from a veteran's service records of 
any ordinary indicators of combat service may, in appropriate 
cases, support a reasonable inference that he did not engage 
in combat; such absence may properly be considered "negative 
evidence" even though it does not affirmatively show that he 
did not engage in combat.  Id.

In various written statements submitted in support of her 
claim, and while testifying orally during her hearing, the 
veteran argued that she developed PTSD - not from combat, 
but rather as a result of a forced sexual assault during her 
service in Korea in the spring of 1977.  She claims that she 
was forced to have sex with two 
"field-grade" officers by her squadron commander while 
stationed at Osan Air Base in Korea.  She also alleged that 
the officers wrongly reported her as having a sexually 
transmitted disease and that another officer forced her to 
perform oral sex on him while he was driving.  According to 
the veteran, her subsequent disciplinary actions for weight 
problems were in actuality caused by the forced sexual 
activity and she was quarantined and forced into undergoing 
treatment for gonorrhea.  She also stated that she was 
subjected to the "Control Roster," requiring that she prove 
that she had fulfilled her required responsibilities.  In 
addition, she claimed that the forced sexual activity caused 
her to begin abusing alcohol.  She also asserted that she 
attempted to file a complaint with the Judge Advocate General 
(JAG) but that the JAG officer discouraged her from taking 
any disciplinary action.

In Doran v. Brown, 6 Vet. App. 283, 290-91 (1994), the Court 
stated that "the absence of corroboration in the 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."


Also in Doran (and in West (Carlton) v. Brown, 7 Vet. App. 
70, 76 (1994) and Zarycki v. Brown, 6 Vet. App. 91, 98 
(1993)), the Court cited a provision of the VA ADJUDICATION 
PROCEDURE MANUAL M21-1 (M21-1), which since has been revised as 
to "Evidence of Stressors in Service" to read, in pertinent 
part, ... "[C]orroborating evidence of a stressor is not 
restricted to service records, but may be obtained from other 
sources."  Since the M21-1 October 1995 revision, the Court 
has held that the requirement in 38 C.F.R. § 3.304(f) for 
"credible supporting evidence" generally means that the 
"appellant's testimony, by itself, cannot establish the 
occurrence of a noncombat stressor."  See Moreau, 9 Vet. 
App. at 389-395 (1996); Cohen 10 Vet. App. at 128.  See also 
Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).

But as explained and acknowledged in the Board's April 2004 
remand, there are exceptions to this general rule - 
including when the claim, as here, is predicated on an 
alleged sexual assault.  In these limited situations, 
evidence from sources other than the veteran's service 
records may be used to corroborate the veteran's account of 
the stressor incident, such as:  records from law enforcement 
authorities, rape crisis centers, mental health counseling 
centers, hospitals or physicians; pregnancy tests or tests 
for sexually transmitted diseases; and statements from family 
members, roommates, fellow service members, or clergy.  
Examples of behavior changes may constitute credible evidence 
of a stressor, including:  a request for a transfer to 
another military duty assignment; deterioration in work 
performance; substance abuse; episodes of depression, panic 
attacks, or anxiety without an identifiable cause; or 
unexplained economic or social behavior changes.  VA will not 
deny a PTSD claim based on in-service personal assault 
without first advising the claimant that evidence from 
sources other than the veteran's service records or evidence 
of behavior changes may constitute credible supporting 
evidence of the stressor and allowing him or her the 
opportunity to furnish this type of evidence or advise VA of 
potential sources of such evidence.  VA may submit any 
evidence to an appropriate medical or mental health 
professional for an opinion as to whether it indicates that a 
personal assault occurred.  See 38 C.F.R. § 3.304(f).



It equally deserves mentioning that, in cases involving 
personal assault, the existence of a stressor in service does 
not have to be proven by the "preponderance of the 
evidence" because this would be inconsistent with the 
benefit of the doubt, or equipoise, doctrine contained in 
38 U.S.C.A. § 5107(b).  See YR v. West, 11 Vet. App. 393, 399 
(1998).  See also Patton v. West, 12 Vet. App. 272, 279-280 
(1999).

The Court's holding in the Patton decision, in comparison to 
the holdings in Moreau and Cohen, was the reason the Court 
vacated the Board's prior January 2005 decision.  The Court 
directed the Board to consider the Patton decision (not just 
Moreau and Cohen), especially insofar as discussing the 
probative value of a September 2001 statement from the 
veteran's childhood friend, G.L.H., regarding changes she 
observed in the veteran's behavior.  Before doing this, a 
discussion of the relevant facts will set the necessary 
backdrop.

A review of the veteran's service medical records (SMRs) 
reveals they are unremarkable for any evidence in the way of 
relevant complaints, diagnoses, or treatment of a stress-
related mental illness.  (Note:  it was not until 1980, 
following publication of an earlier version of the DSM, that 
VA first added the PTSD nomenclature to the rating schedule).

When completing a medical history questionnaire in 
anticipation of separating from the military, the veteran 
denied experiencing depression, difficulty sleeping, nervous 
trouble, loss of memory, or excessive worry.  A physician 
noted that the veteran reported having a history of uterine 
infection in 1975, due to an intrauterine device.  The 
contemporaneous report of medical examination shows that a 
psychiatric evaluation was normal, but that she exceeded the 
weight standard for her height and age.  Of particular note, 
none of her service medical records mention the presence of 
any psychiatric disorders.



With regard to physical complaints following her alleged 
sexual trauma, the veteran's service medical records show she 
was seen for astigmatism and myopia, 
dysmenorrhea/dysfunctional uterine bleeding, sinusitis, 
colitis, obesity, vaginitits, otitis externa, enteritis, and 
fibrocystic breasts.  A February 1977 medical record 
indicates she related that a 1975 laparoscopy found pelvic 
adhesions.  An August 1977 medical record indicates she 
reported that another service member listed her as a 
gonorrhea contact and that she had undergone a 
tubal ligation.  She was tested for gonorrhea, and the 
results were negative.  Another August 1977 medical record 
indicates her dysmenorrhea was likely due to hormonal 
dysfunction.  She was treated for enteritis versus 
dysmenorrhea in November 1978.  She also underwent overweight 
evaluations and hypnosis therapy for weight control from 1977 
through 1979.

Also, in February 1980, the veteran underwent a psychological 
evaluation.  She reported that she pulled "more than her 
load in the shop," but that she was moved to another section 
due to her treatment of customers.  She also related that she 
worked in her job for 2 years and had not dealt well with 
customers.  She demanded that she be allowed out of the 
military.  A psychiatric disorder was not found upon 
evaluation.  The examining psychologist found the veteran had 
excellent insight into her behavior and her difficulties with 
the squadron.  He also noted that she recognized that she had 
problems with social relationships and being abrasive.  He 
indicated that she was generally an effective worker, 
but caused social friction and difficult working 
relationships due to her intense motivation for achievement 
and focus on minutiae, and he characterized this tendency as 
a personality characteristic.

The veteran's DD Form 214, Certificate of Release or 
Discharge from Active Duty, indicates she served from August 
1976 to March 1980.  The type of separation was a 
"discharge," the character of her service was "honorable," 
and the reason for her separation was listed as being for 
"hardship reasons."  Her DD Form 214 also shows that she 
worked in a transportation squadron as a passenger and 
household goods specialist.  According to a performance 
report, she prepared, distributed, and filed government bills 
of lading for shipment of household goods and personal 
effects, contacted commercial carriers to arrange for 
movement, maintained records, and prepared monthly reports.  
Service records clarify that she requested a hardship 
discharge in March 1980 to provide physical assistance and 
emotional support to her mother, and that her normal 
separation date was August 1980.  In granting the requested 
discharge, the Lt. Colonel stated that an early separation 
would benefit the squadron, as the veteran had become 
dissatisfied with her work, supervisors, and co-workers in 
the previous six months, and because her tendency to focus on 
minutiae caused social friction in working relationships, 
disrupting her department.

Additional service records show the veteran was promoted to 
grade Airman from Airman Basic in February 1977 and to grade 
Airman First Class from Airman in July 1977.  A February 1978 
Airman Performance Report shows that was found to have 
performed her duties in a satisfactory manner, thoroughly and 
accurately, and without complaint.  She was also noted as 
being a conscientious worker, but the reporting officials 
found that she did not accept full responsibility for her 
actions pertaining to Air Force policy and procedures, and 
that she had difficult adjusting to military life.  A June 
1978 mid-period evaluation indicates she was placed on a 
"control roster" for 90 days in April 1978 to evaluate her 
performance due to her previous substandard performance and 
her attitude toward her supervisors, and that her performance 
had not improved yet.  Subsequent performance reports from 
her supervisors, dated in July and November 1978, indicate 
she needed to improve how she worked and cooperated with co-
workers, as well as needed to improve her attitude toward the 
general public and her supervisor.  Other notations stated 
her behavior was "sometimes erratic."  Nonetheless, she was 
promoted to Senior Airman in June 1979 and her next 
performance evaluation, in November 1979, stated she 
performed her duties in an outstanding manner.

The veteran first sought treatment for psychiatric-related 
complaints in December 1999, in order to apply for Social 
Security disability benefits.  According to the January 2000 
psychological evaluation report, she related that 
she recently had been diagnosed with diabetes and that she 
underwent an elective tubal ligation in her early twenties 
because she did not want to have children.  She reported that 
she occasionally abused alcohol and experimented with drugs 
when she was younger, and that she continued to drink 
socially and use marijuana.


She also related that she engaged in frequent sexual 
experiences with multiple partners during her young adulthood 
and had a history of sexual abuse by her father beginning at 
age 41/2.  She stated that she first recalled the abuse when 
she was in her early thirties.  She also discussed 
difficulties in her life around the fourth grade and again 
around ages 13 or 14, and that the second time, she was seen 
by a psychiatrist.  She also stated that she had a third 
period of difficulties in her thirties, corresponding to her 
memories of the sexual abuse and problems in college, 
and that she obtained therapy at that time, wherein she was 
diagnosed as depressed.  A review of these records by the VA 
psychologist indicates the therapist thought the veteran had 
a psychotic break at age 14 and might have another, as he 
believed she was a chronic schizophrenic.  The therapist also 
noted the veteran experienced auditory hallucinations, which 
she denied to the VA psychologist.

Records also show that subsequent therapists, in the late 
1980s, diagnosed the veteran with depression and multiple 
personality disorder, and she related that she had attended 
incest anonymous meetings.  Regarding her service, she 
related that a letter of reprimand was placed in her file 
after she assaulted another airman, but she attributed this 
to irritability due to sinus problems.  She also stated that 
she was given multiple psychiatric evaluations and prescribed 
medication, which caused heavy menstrual bleeding and cramps, 
and that she angered her supervisors.  She also related that 
she tried to obtain a psychiatric discharge, but was 
unsuccessful.

Psychological testing indicated the veteran over-reported 
symptoms of psychopathology.  Testing also revealed that she 
had:  chronic, low level depression, rumination, and mental 
dullness meeting the criteria for dysthymia, with a pattern 
of chronic maladjustment; dissociative disorder due to 
arrested personality disorder and chronic dissatisfaction 
with herself; paranoid personality disorder, with paranoid 
persecutory ideation; and borderline personality disorder 
with an unstable affect, irritability, poor impulse control, 
and difficulty controlling her anger.  The evaluating VA 
psychologist indicated the veteran's problems were chronic 
and indicative of a personality disorder, which predisposed 
her to periodic "breaks from reality" and dissociative 
experiences.  Her disorders also resulted in persistent 
social and occupational impairment due to difficulty with 
authority and long-term work relationships.

VA treatment records indicate the veteran reported a history 
of PTSD and depression.

A September 2001 statement from [redacted] states that she 
had known the veteran since childhood and that the veteran 
was fun and driven until she joined the military.  According 
to Ms. [redacted], she and the veteran lost touch while the 
veteran was stationed overseas, but corresponded regularly 
when the veteran returned to the United States.  Ms. [redacted] 
also stated that the veteran's mood shifted around the time 
of her return, wherein the veteran seemed uncomfortable and 
"at odds with others in the service."  She also wrote that 
the veteran assumed a "defensive posture" in relationships 
with superiors and fellow service members and that following 
service, the cycle of new opportunity, hard work, friction 
with a male authority figure, distrust of co-workers, 
fighting dismissal, and crisis continued.  Ms. [redacted] also 
noted that the veteran was more distrustful of emotional 
intimacy since her service.

An August 2002 letter from a J. Branch-Williams, M.S.W., at 
the Baltimore Vet Center states the veteran had been treated 
since March 2001 for PTSD and major depressive episodes.  Ms. 
Branch-Williams stated the veteran exhibited behaviors 
resembling other psychiatric disorders, but that her 
presentation and military history suggested PTSD and sexual 
assault.  Other records from the Vet Center show the veteran 
was prescribed several medications.

A September 2002 VA examination report indicates the 
veteran's claims file was reviewed.  The veteran related a 
history of sexual abuse while in the Air Force and that she 
was tested for a venereal disease following the forced sexual 
acts.  She also reported that she had received outpatient 
psychosocial support, wherein she was diagnosed with PTSD.  
Following a mental status examination, the diagnosis was 
dysthymia.  The VA examiner found that the criteria for PTSD 
were not met during the evaluation of the veteran.  He also 
opined that, since there was no objective documentation 
corroborating the veteran's report, the veteran's current 
dysthymia could not be correlated to the alleged event.

The veteran was afforded a VA examination in January 2003.  
According to the report, her claims file was reviewed.  She 
reported that she had an ongoing sexual relationship with her 
father from age 41/2 to age 22.  She also reported that she 
developed multiple personalities, but that her main 
personality was unaware of the abuse, and that, as a result, 
she did not become consciously aware of the sexual 
relationship until she was in her thirties.  She related that 
she was stationed in Korea during her military service from 
January 1977 to December 1978, and that in May or June 1977 
her commanding officer forced her to have sexual relations 
with a deputy commanding officer against her will for several 
weeks.  She stated that she was put on a list for "medical 
restriction", as she was falsely identified as a sexual 
contact exposed to venereal disease.  She related that she 
was forced to perform oral sex on the deputy commanding 
officer, and that he seemed to drive the car into a bus, but 
missed, in what she thought was a murder/suicide.  She also 
said she was treated for anxiety while in Korea and upon her 
return to the United States, while in the service, and that 
she started abusing alcohol while in Korea.  She also related 
that she received psychiatric treatment in 1989 and that a VA 
provider diagnosed her with a borderline personality 
disorder.  In addition, following service, she obtained her 
college degree, cared for her mother, and worked part-time.

Following a mental status examination, the veteran was 
diagnosed with dysthymia; major depressive disorder, 
recurrent, in remission, by history; dissociative identity 
disorder, by history, not seen; and borderline personality 
disorder.  The examining providers determined she did not 
meet the DSM-IV criteria for PTSD.  The examiners pointed out 
that she functioned well following her military service and 
that they agreed with the results of the VA psychological 
testing in 2000.

The veteran was afforded another VA examination in September 
2003.  That report indicates she mentioned having psychiatric 
difficulties for most of her life, that she got a college 
degree despite having been a poor student, and that her 
mother abused and neglected her as a child.  She reiterated 
her experiences of having been forced to have sexual 
relations during her military service, and stated that she 
did not report any of these incidents while in the military, 
although she related that she received treatment for anxiety 
while in the military.  She was vague about psychiatric 
symptoms and became extremely angry and abusive when 
questioned about her mood and psychotic symptoms.  The VA 
examiners noted that it did not appear she had any ongoing 
psychiatric treatment since some treatment in 2001 at the Vet 
Center.  Following a mental status examination, she was 
diagnosed with recurrent depression and borderline 
personality disorder.  The VA examiners found that she did 
not meet the criteria for the diagnosis of PTSD.  They also 
found that she presented with an enormous amount of anger and 
rage, with difficulty controlling and modulating her affect 
and severe interpersonal difficulties.  They noted that her 
history of trauma in the military was quite vague and that 
her childhood sexual trauma appeared to have a significant 
impact on her current functioning.  They further noted that 
her difficulties stem from her character pathology.

A subsequent review of the claims file by another VA examiner 
found that the veteran manifested a severe paranoid 
personality disorder and borderline personality disorder, 
with dissociative identity disorder, dysthymia, and 
major depression.  

In March 2004, as previously mentioned, the veteran had a 
hearing before the undersigned VLJ of the Board.  According 
to the transcript, the veteran alleged there were outright 
fabrications in her psychiatric and psychological evaluation 
reports.  She also alleged that information about her sexual 
assaults in the military was suppressed.  She testified, as 
well, that she had been diagnosed with PTSD in 2001, had 
recurring problems keeping jobs following her military 
service, and that she could not afford therapy for her PTSD.

A June 2004 evaluation from EHP Behavioral Services indicates 
the veteran related experiencing a sexual assault by military 
officers and that she wanted an evaluation for PTSD.  She 
also reported multiple psychosocial stressors, denied a 
history of inpatient treatment, and related that her most 
recent treatment was in 2001.  She refused to discuss any 
history of trauma prior to her military service.  Following a 
review of her symptoms and an evaluation of her mood, eye 
contact, and affect, the diagnoses were PTSD and depressive 
disorder.

Another VA psychiatric examination was conducted in August 
2004, specifically in response to the Board's April 2004 
remand directive, to determine whether the veteran has PTSD 
and, if so, whether it is the result of the alleged sexual 
trauma in service.  The Board requested this mental status 
evaluation to comply with M21-1, Part III, paragraph 
5.14(c)(9), including insofar as determining whether there 
are credible indications of behavioral changes to support the 
claim and permit granting it with the special consideration 
given these inherently sensitive type cases.

The report of the August 2004 examination states it was 
conducted by the chief of the Consultation Psychiatry Service 
and the coordinator for the Trauma Recovery Program, and that 
the veteran's claims file and medical records were reviewed.  
The veteran reiterated her difficulties in school during 
childhood, sexual abuse as a child, job instability following 
high school, and evaluation for a multiple personality 
disorder when she was in her thirties.  She also reiterated 
that she was treated for anxiety during service and received 
her college degree following her military service, while 
caring for her mother and working part-time.  She reported 
receiving psychological treatment in the 1980s, but denied 
having any treatment continuing into the 1990s, except that 
which followed the death of her mother in 1998 - namely, the 
2000 VA psychological evaluation.  She also reported forced 
sexual contact during her military service.  

An objective mental status evaluation and a semi-structured 
PTSD interview were administered.  According to the results, 
the veteran met the criteria for PTSD, but the VA examiners 
observed that her current reported symptoms were inconsistent 
with previous diagnostic interviews and there was no 
corroborating evidence of her sexual trauma in the military.  
They also noted she had a lengthy history of child sexual 
abuse, that she did not report any military sexual trauma or 
PTSD symptomatology at her 2000 VA psychological evaluation, 
and that she did not begin reporting PTSD symptoms or 
military sexual trauma prior to her claim for PTSD in 2001.  
Diagnoses included PTSD, based solely on PTSD interview; 
recurrent major depressive disorder, in remission; recurrent 
dysthymic disorder; dissociative disorder; borderline 
personality disorder; and paranoid personality disorder.

There no disputing the veteran has PTSD, as this diagnosis 
(albeit among others) is well documented in her records.  So 
the determinative issue is whether the PTSD is a consequence 
of the alleged sexual trauma in service or, instead, more 
likely the result of other unrelated factors.  And as the 
Court-granted joint motion indicates, the Patton holding 
requires adjudication of her PTSD personal assault claim 
under different standards of evidence - which, in particular 
here, require the Board to assess the credibility and 
probative value of behavior change evidence, 
referring specifically to the September 2001 statement from 
her childhood friend, G.L.H.

This statement from G.L.H., although probative, acknowledges 
she lost all contact with the veteran while the veteran was 
stationed overseas in Korea - which was when the events in 
question reportedly occurred.  G.L.H. said that she did not 
reestablish her relationship with the veteran until the 
veteran returned stateside, when G.L.H. noticed a changed 
demeanor and disposition for the worst.  But in assessing 
this behavior change evidence and giving full faith and 
credibility to it, as required by M21-1, Part III, paragraph 
5.14(c)(9), the VA psychiatrist and psychologist who examined 
the veteran in August 2004 nonetheless ultimately determined 
that, while she indeed has PTSD, this condition nonetheless 
is most likely unrelated to the alleged sexual trauma in 
service.  And in discussing the rationale for their opinions, 
they cited a long history of other sexual abuse dating back 
to her childhood, by her father no less, and several notable 
instances (prior to filing a claim with VA for PTSD in 1991) 
when she did not mention any military sexual trauma or even, 
for that matter, PTSD symptoms.  The fact that these 
examiners confirmed at the outset of their report that they 
had reviewed the relevant evidence in the claims file (C-
file), necessarily implies this included the September 2001 
statement from the veteran's childhood friend, G.L.H.  So 
even with the benefit of this statement, these examiners 
still did not causally relate the PTSD diagnosis to the 
alleged sexual trauma in service.



The report of that August 2004 VA mental status evaluation is 
very probative because it was based on the proper factual 
foundation - including, again, the September 2001 statement 
from G.L.H., not just unsubstantiated allegations, and since 
the examiners had the specialized, esoteric expertise in the 
particular subject matter at issue - both psychiatry and 
psychology.  Indeed, one examiner is Chief Consultation 
Psychiatry Service whereas the other is Coordinator for the 
Trauma Recovery Program.  And a whole line of precedent cases 
discusses the probative value of this type of evidence.  See 
Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Owens v. Brown, 
7 Vet. App. 429 (1995); Swann v. Brown, 5 Vet. App. 229, 233 
(1993); Black v. Brown, 10 Vet. App. 279 (1997); and 
Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

Although the veteran's service personnel records indicate she 
had problems with authority and interacting with customers, 
these records do not suggest these difficulties were the 
result of the alleged sexual trauma.  They did not arise 
until nearly a year after the alleged assaults.  And the 
veteran's treatment during service for various gynecological 
disorders was attributed to hormonal dysfunction and her pre-
existing uterine infection - not to a sexual assault.

Records also show the veteran underwent testing for a 
sexually transmitted disease after her alleged sexual assault 
because someone else reported her as a sexual contact, not 
because she thought she herself was at risk from a prior 
sexual assault.  Likewise, her service records do not 
indicate a deterioration of work performance, a request for a 
transfer to another duty assignment, or other behavioral 
change indicative of sexual trauma.  Instead, by all accounts 
she continued to perform well and, indeed, was promoted less 
than a year after the alleged sexual assault.  Similarly, her 
records indicate that her problems with her supervisors and 
difficulty adjusting to military life were related to a 
personality disorder, and not due to a mental disorder that 
can be service connected.  38 C.F.R. §§ 3.303(c), 4.9.  
See also Sabonis v. Brown, 6 Vet. App. 426 (1994).  See, too, 
Monroe v. Brown, 4 Vet. App. 513, 514-515 (1993); Carpenter 
v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90 (July 
18, 1990); VAOPGCPREC 82-90 (July 18, 1990); and VAOPGCPREC 
11-1999 (Sept. 2, 1999).

In addition, there is no evidence, as the veteran alleges, 
that she began abusing alcohol or was treated for anxiety 
while in service.  Nor is there any evidence that she 
contacted a JAG officer regarding an assault.  Furthermore, 
she requested an early discharge for hardship reasons related 
to caring for her ill mother - again, not because of prior 
trauma related to a sexual assault.  Even the supporting 
statement from G.L.H. does not provide any pertinent details 
regarding the specific events alleged by the veteran; in 
fact, G.L.H. readily acknowledges she did not correspond with 
the veteran during her overseas service in Korea and that 
the veteran did not share any of the alleged intimate 
traumatic experiences with her.  Similarly, G.L.H. did not 
personally observe the veteran's behavior until after 
the veteran's discharge from service, nor did she provide any 
copies of the correspondence between herself and the veteran 
from a time contemporaneous to the alleged events.  Thus, the 
probative value of her statement is diminished.  See Madden 
v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the 
evidence and rendering a decision on the merits, the Board is 
required to assess the credibility and probative value of 
proffered evidence in the context of the record as a whole).

Also, the evidence indicates the veteran did not seek 
treatment for psychiatric reasons during service.  Indeed, 
the evidence indicates she did not seek treatment until 
approximately 1989, several years after her discharge from 
the military, well beyond the one-year presumptive period for 
the initial manifestation of a psychosis (bearing in mind 
that PTSD, instead, is a neurosis), and several years since 
the alleged sexual assault.  This is probatively significant 
and given a lot of weight and credibility because this was at 
a time contemporaneous to her service, when there was no 
incentive - financial or otherwise - to fabricate 
information for personal gain.  See, e.g., Struck v. Brown, 9 
Vet. App. 145, 155-56 (1996).  She also did not make an 
allegation of sexual trauma while in service; it was not 
until much later, in 2001, that she initially made this 
claim.  So her statements, like the one from G.L.H., lack 
credibility.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 
(1991) (personal interest may affect the credibility of 
testimony).  See also Shaw v. Principi, 3 Vet. App. 365 
(1992) (a veteran's delay in asserting a claim can constitute 
negative evidence, which weighs against the claim).  Indeed, 
as mentioned, this is one of the primary reasons the August 
2004 VA examiners did not relate the veteran's PTSD diagnosis 
to military sexual trauma.

Additionally, while the claims file contains medical reports 
describing the stressor, the description of the stressor 
represents the veteran's self-reported history of the 
incident in question and, as noted above, is not 
independently corroborated by sufficient means.  Although 
medical professionals recorded the veteran's history, and 
some provided a diagnosis of PTSD on the basis of her 
history, they made no reference to any credible supporting 
evidence that the events as described by her actually 
occurred.  In fact, the August 2004 VA examiners, who, again, 
reviewed the veteran's entire claims file, including G.L.H.'s 
statement and the veteran's service records, as well as 
previous evaluation reports, determined there was no 
corroborating evidence of the alleged sexual assault and, 
consequently, that there was no means of confirming that her 
PTSD symptoms were related to sexual trauma in service versus 
the childhood sexual abuse.  See Swann v. Brown, 5 Vet. App. 
229, 232-33 (1993) (where a veteran's alleged stressors are 
uncorroborated, the Board is not required to accept a 
diagnosis of PTSD as being the result of the veteran's 
service).

Moreover, the veteran's social worker at the Vet Center, in 
diagnosing PTSD, also relied entirely upon the veteran's 
self-reported history, including her reports of a previous 
PTSD diagnosis, despite the fact that no stressors had been 
confirmed.  As such, this opinion also cannot be relied on.  
See Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (the Court 
rejected a medical opinion as "immaterial" where there was 
no indication the physician had reviewed relevant SMRs or any 
other relevant documents that would have enabled him to form 
an opinion on service connection on an independent basis).  

The several VA psychological/psychiatric opinions, on the 
other hand, have significantly more probative weight since 
the opinions were based on a review of the complete record, 
and not reliance on unsubstantiated allegations.  
The August 2004 VA examiners determined the veteran met the 
DSM-IV criteria for a diagnosis of PTSD, but could not relate 
the diagnosis back to sexual trauma in service.  Of equal 
significance, the January 2000 VA psychological evaluation 
and 2002 and 2003 VA examiners consistently indicated the 
veteran's problems stemmed from dysthymia, dissociative 
disorder, paranoid personality disorder, and borderline 
personality disorder.  These examiners also repeatedly noted 
that her childhood sexual trauma appeared to have a 
significant impact on her current functioning and could not 
be ruled out as the cause of her psychiatric disorder.  
And as already alluded to, the veteran's statements, alone, 
cannot establish the occurrence of a noncombat stressor - 
even in a case, as here, involving a purported sexual 
assault.  See Reonal v. Brown, 5 Vet. App. 458, 494-95 (1993) 
(the presumption of credibility is not found to "arise" or 
apply to a statement to a physician based upon an inaccurate 
factual premise or history as related by the veteran).  So in 
the absence of a reliable diagnosis relating the PTSD to 
service, and in particular to a confirmed sexual assault, the 
Board concludes there is no basis for granting service 
connection for PTSD.

As the stressor in question has not been independently 
verified, even with consideration of the September 2001 
statement from G.L.H., a link has not been established 
between the veteran's current symptoms and an in-service 
stressor.  See 38 C.F.R. § 3.304(f).  While an accurate 
determination of etiology is not a condition precedent to 
granting service connection, nor is definite etiology or 
obvious etiology, there must at least be a sufficiently 
definitive opinion on etiology to rise above the level of 
pure equivocality.  See Alemany v. Brown, 9 Vet. App. 518, 
519 (1996); Winsett v. West, 11 Vet. App. 420, 424 (1998).  
Here, there is not, mostly evidence against the claim, so it 
must be denied.  38 C.F.R. § 3.102.


ORDER

The claim for service connection of PTSD is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs