Citation Nr: 0713720 Decision Date: 05/09/07 Archive Date: 05/17/07 DOCKET NO. 06-05 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for depression. REPRESENTATION Appellant represented by: Richard B. Stofberg, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active service from March 1979 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. FINDINGS OF FACT 1. The veteran has submitted new and material evidence to reopen her claim for service connection for PTSD. 2. The veteran has been diagnosed with PTSD, but there is no credible corroboration or verification of the alleged non- combat stressors in service. 3. The veteran's depression was not caused by her active military service from March 1979 to March 1983. CONCLUSIONS OF LAW 1. New and material evidence has been received since the September 2001 final rating decision to reopen a claim for service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2006). 2. Service connection for PTSD is not established. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2006). 3. Service connection for depression is not established. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In its January 2006 statement of the case (SOC), the RO decided that the veteran had submitted new and material evidence to reopen her claim for service connection for PTSD. The Board has reviewed this new evidence and agrees with this determination. The Board finds that the RO properly found that the evidence was new and material and considers her claim to be reopened. The Board will adjudicate this claim on a de novo basis. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease that was incurred or aggravated during active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2006). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical evidence do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; 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. If the evidence establishes that 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 the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304 (regarding combat veterans); Cohen v. Brown, 10 Vet. App. 128 (1997). The diagnostic criteria, including those related to stressors, set forth in The American Psychiatric Association: Diagnostic And Statistical Manual Of Mental Disorders, (4th ed. 1994) (DSM- IV) for mental disorders have been adopted by the VA. 38 C.F.R. § 4.125. According to these criteria, a diagnosis of PTSD requires that a veteran be exposed to a traumatic event, and that she experience a number of specified current symptoms. The traumatic event, or stressor, involves experienced, witnessed, or being confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. In addition, the response must involve intense feelings of fear, helplessness, or horror. If the veteran did not engage in combat with the enemy, or the veteran did engage in combat but the alleged in-service stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged in-service stressor. Instead, the record must contain credible supporting evidence which corroborates the veteran's testimony or statements. Cohen, 10 Vet. App. at 147; Moreau v. Brown, 9 Vet. App. 389, 395 (1996). The veteran has a current diagnosis of PTSD. She alleges the she has PTSD as the result of stressors experienced while serving in the military. Specifically, she asserts that in January 1981, she was sexually assaulted by a male soldier when he entered her room to wake her for duty. She also reported a second stressor of being lost during her first week of duty in Germany. These are not combat-related stressors and therefore the veteran's lay testimony is not, by itself, sufficient for its verification. Cohen, 10 Vet. App. at 147. In Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to claims for PTSD based on assault. In particular, the Court held that the provisions in M21-1, Part III, 5.14(c), which addressed PTSD claims based on personal assault are substantive rules which are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-99 (1998). In December 2005, M21-1, Part III was rescinded and replaced with a new manual, M21-1MR, which contains the same PTSD- related information as M21-1, Part III. The corresponding new citation for M21-1, Part III, 5.14(c) is M21-1MR IV.ii.1.D.14 and 15. The pertinent regulation provides that, in cases of personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incidents. Examples of such evidence include, but are not limited to: 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. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: 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 that is 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 that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3); see also M21-1MR IV.ii.1.D.14 and 15. As recently stated by the Court in Bradford v. Nicholson, 20 Vet. App. 200 (2006), § 3.304(f)(3) provides "unequivocally" that "VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault" without first providing the requisite notice. The Court also stated that § 3.304(f)(3) requires VA to advise personal assault claimants that credible supporting evidence of a stressor may include (1) "evidence from sources other than the veterans service records" or (2) "evidence of behavior changes." The Board must provide "a written statement of [its] findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record." 38 U.S.C. § 7104. The Board notes that in a letter dated in October 2003, the RO advised the veteran of the Veterans Claims Assistance Act of 2000 (VCAA) and its effect on her claim. The letter specifically advised her to identify any possible sources of information and evidence for personal assault. The veteran submitted parts of her service personnel records and did not identity any sources of information outside of the service record. The veteran submitted a PTSD questionnaire. The veteran's service personnel records show that she reported a sexual assault in January 1981. She reported that a male soldier entered her room and placed his hand under her night gown and on her leg. The veteran's roommate made a statement corroborating the veteran's report to the extent that she saw the male soldier enter their room, stand near the veteran's bed, and then the veteran became upset and asked why he touched her. The Board finds that the veteran's roommate's statement provides some evidence in favor of her claim. However, an investigation was performed in January 1981. Statements were taken from the veteran, her roommate, the accused, and four other soldiers. The authorities investigating the assault concluded that the veteran's allegations were unfounded. The Board has reviewed the paperwork from the investigation and finds that it provides highly probative negative evidence against the veteran's claim because it concluded that the veteran was not assaulted. In light of the provisions in M21-1MR discussed above, the Board notes that there is no evidence of a change in the veteran's behavior following her report of the assault that would provide evidence in favor of the assault having occurred. The veteran had disciplinary problems consistently throughout her period of service, both before and after she reported the incident. The Board finds that the lack of change in the veteran's behavior after January 1981 provides evidence against her claim. In May 1981, the veteran's supervisory officer received a phone call from a doctor who stated that the veteran called a Crisis Center and said that she was going to commit suicide. An ambulance was dispatched to the veteran's residence. Upon arrival, the ambulance personnel and accompanying military police were informed that the veteran did not live at the residence, and no one there knew who she was. The veteran later turned herself in to the military police and they escorted her to a medical facility for evaluation by a Dr. W. Dr. W.'s August 1981 report stated that the veteran was suffering from acute anxiety and depression when she as admitted to the hospital in May 1981. Dr. W. stated that "the precipitant was her inability to further handle what she perceived as an impossible relationship with superiors in the clinic" where she worked. She was diagnosed with a hysterical personality disorder. Dr. W. stated that her psychiatric condition was not a recent development and "did not result from her duties or problems in the Army," a statement made "with the approval of [the veteran's] lawyer." Dr. W.'s statement that the veteran's anxiety and depression was due to her relationship with her superiors at work provides evidence against her claim because it indicates that her mental health problems were not due to the alleged assault. Dr. W.'s conclusion that the veteran's mental health problems predated her military service and were unrelated to her problems in the Army also provides significant evidence against her claim. The Board has reviewed this report and finds that it is entitled to great probative weight. The veteran's service medical records (SMRs) are negative for any treatment from an assault in January 1981. They are also negative for mental health treatment. Overall, the Board must find that the service record, especially the investigation of the alleged assault and Dr. W.'s evaluation, provides highly probative negative evidence against the veteran's claim. The veteran's post-service medical records reveal that in addition to a sexual assault in service, she reported several other stressors while receiving VA mental health care. Additional non-service-related stressors included sexual harassment in fourth grade, sexual assault in high school, a coercive sexual relationship, abuse by her husband, sexual harassment at every job she held, and a gun shot wound in 1997. In July 1999, VA treatment records show that the veteran's reporting was tangential and that she was an unreliable historian. The veteran was described as delusional in VA mental health treatment reports until 2004, providing strong evidence against her claim as indicating her statements can not provide the basis for stressor validation. The veteran has multiple diagnoses of PTSD, including some diagnoses of PTSD due to military sexual trauma. However, the Board is not required to grant service connection for PTSD because a physician accepted the veteran's description of her active service experiences as credible. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board is not required to accept the veteran's uncorroborated account of her active service experiences. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The VA medical providers have generally restated the veteran's account of the in-service stressor and accepted it as credible. However, such statements are undermined by two factors: (1) the medical opinions are based upon the veteran's uncorroborated recitation of the alleged stressor; and (2) none of the medical opinions included an objective review of the in-service evidence or any other contemporaneous indicia that might bolster the veteran's reported stressor. As noted above, a medical provider cannot provide supporting evidence that the claimed in-service stressor actually occurred based upon post-service medical examination. In this respect, although an examiner can render a current diagnosis based on an examination of the veteran, the examiner's opinion regarding the etiology of the underlying condition can be no better than the facts alleged by the veteran. See generally, Guimond v. Brown, 6 Vet. App. 69 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Black v. Brown, 5 Vet. App. 177 (1993). Furthermore, an examination that relies on a questionable history of events is inadequate, and any psychiatric evaluation that forms the basis for an adjudicative decision must be based on an accurate description of events during the veteran's service. See West v. Brown, 7 Vet. App. 70 (1994). The Board is not required to accept a physician's diagnosis just because the physician accepted the veteran's description of her experiences as credible and diagnosed her with PTSD. See West, 7 Vet. App. at 77 (quoting Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992)). Likewise, medical statements that accept a veteran's reports as credible and relate her PTSD to events experienced in service do not constitute the requisite credible evidence of the occurrence of a stressor. Moreau, supra. Overall, the Board must make a factual determination against a finding that the assault during service ever occurred. In this regard, a medical history provided by a veteran and recorded by an examiner without additional enhancement or analysis is not competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). However, the Court has held that VA can not reject a medical opinion simply because it is based on a history supplied by the veteran and that the critical question is whether that history was accurate. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran). In this case, the Board finds that the history provided by the veteran is inaccurate and that the veteran is an inaccurate historian. Further, the Board finds that the record, as a whole, provides strong factual evidence against this claim, indicating that the stressor did not occur or that the veteran difficulties have no association with service. The Board finds that the negative evidence outweighs the veteran's contentions. With regard to the veteran's second non-combat stressor, being lost in Germany, it does not meet the DSM-IV requirements for what constitutes a stressor. The veteran did not experience, witness, and was not confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. Additionally, there is no evidence of record to verify that this incident occurred, aside from the veteran's own statements. Her service record is completely negative for any references to the veteran being lost in Germany. Beyond the above, the Board has had the opportunity to speak to the veteran at her hearing. Based on this testimony, and a review of the facts of this case, the undersigned finds the veteran is not an accurate historian of the events that are alleged to have occurred during her service, providing strong evidence against this claim. In sum, the preponderance of the credible evidence does not show corroboration of an alleged in-service stressors, which in turn could serve as the basis for the veteran's diagnosis of PTSD, even in light of the Court cases cited above. In fact, for reasons noted above, the Board finds that the most probative evidence in this case provides evidence against this claim. Any current PTSD is not shown to be related to her active service. The Board finds that the preponderance of the evidence is against granting service connection for PTSD. 38 U.S.C.A. § 5107(b). With regard to the veteran's claim for service connection for depression, the first requirement for any service connection claim is competent evidence of existence of a current disability. Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The veteran has a diagnosis of depression and therefore she has a disability for VA purposes. The veteran's service personnel records show that she was evaluated by Dr. W. during active military service because she was experiencing acute depression and anxiety. However, the veteran was not diagnosed with a depressive disorder at that time. She was diagnosed with a hysterical personality disorder providing evidence against this claim as personality disorders are not diseases or injuries within the meaning of the applicable legislation on VA compensation benefits, and service connection is prohibited for personality disorders. 38 C.F.R. § 3.303(c). The veteran was not diagnosed with depression in service. Post-service treatment records show a diagnosis of Major Depression and treatment for this condition. Treatment records state that the veteran's depression is due to her PTSD, her current personal circumstances, her multiple health problems, and a history of delusional disorder. The treatment records also note that the veteran reported a lengthy pre- and post-military service history of sexual trauma. The first instance of treatment for depression was in January 2001, almost 20 years after the veteran left active service. She was hospitalized at a VA facility and diagnosed with depressive disorder with psychotic features. The Board must note the lapse of many years between the veteran's separation from service and the first treatment for the claimed disorder. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no evidence to show that the veteran had depression since she left service. While she was hospitalized for depression in January 2001, she reported having feelings of depression for the past two years. There is no evidence of continuity of symptoms of depression after the veteran left service, as she was not treated for it until 2001. 38 C.F.R. § 3.303(b). There is no competent medical evidence of record to provide a link between the veteran's depression and her period of active military service. As the veteran's PTSD is not service-connected, she is not entitled to service connection for depression on a secondary basis. 38 C.F.R. § 3.310. The Board finds that the preponderance of the evidence is against service connection for depression. 38 U.S.C.A. § 5107(b). The appeal is denied. The Duty to Notify and the Duty to Assist Review of the claims folder reveals compliance with the VCAA, 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by a letter dated in October 2003, the RO advised the veteran of the evidence needed to substantiate her claims and explained what evidence VA was obligated to obtain or to assist the veteran in obtaining and what information or evidence the veteran was responsible for providing. Thus, the Board finds that the RO has provided all notice required by the VCAA. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board observes that the RO issued the VCAA notice prior to the adverse determination on appeal. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The RO did not specifically ask the veteran to provide any evidence in her possession that pertains to the claims. Id. at 120-21. However, the Board is satisfied that the October 2003 VCAA notice otherwise fully notified the veteran of the need to give VA any evidence pertaining to her claims, such that there is no prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). See Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Moreover, neither the veteran nor her representative has made any showing or allegation that the content of the VCAA notice resulted in any prejudice to the veteran. The Board finds that any deficiency in the notice to the veteran or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post- decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court found that the evidence established that the veteran was afforded a meaningful opportunity to participate in the adjudication of his claims, and found that the error was harmless, as the Board has done in this case). The Board notes that in a June 2006 letter, the veteran was informed that a disability rating and effective date would be assigned if her claims were granted. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the duty to assist, the RO has secured the veteran's service medical records, service personnel records, and VA medical records. As there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. The Board notes that etiological opinion has not been obtained. However, the Board finds that the evidence, discussed above, which indicates that the veteran did not receive treatment for the claimed disorders during service or that there is any competent medical evidence showing or indicating a nexus between service and the disorders at issue, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claim. See 38 C.F.R. § 3.159 (c)(4) (2005). As service and post-service medical records provide no basis to grant the claims, and provide evidence against the claims, the Board finds no basis for a VA examination to be obtained. More importantly, as the Board has found no confirmed stressor, and evidence against the claimed stressors that outweighs the veteran's contentions, even in light of the Court's decision in Patton, an examination would serve no constructive purpose regarding the PTSD claim. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case. While the first element is met for both claims, the evidence discussed above shows that there was no event, injury, or disease that occurred or manifested in service or during an applicable presumptive period. There is also no indication that the claimed conditions may be associated with the veteran's service, as there was no credible evidence that the stressors occurred and the veteran's depression was not diagnosed until many years after service, with no nexus to service, and highly probative evidence against such a finding. Simply stated, the most probative evidence in this case provides evidence against this claim. ORDER New and material evidence has been submitted and the claim for service connection for PTSD is reopened. To this extent, the appeal is granted. Service connection for PTSD is denied. Service connection for depression is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs