Citation Nr: 0733277 Decision Date: 10/23/07 Archive Date: 11/02/07 DOCKET NO. 95-25 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD) due to personal assault. 2. Entitlement to service connection for adenomyosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active service from September 1989 to April 1992. This appeal to the Board of Veterans' Appeals (Board) is from a June 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDINGS OF FACT 1. VA tried at least twice to have the veteran examined to determine whether there is a correlation between her PTSD and military service - and, in particular, an alleged personal (sexual) assault and related events in the aftermath of it, but she declined to be examined. 2. So as it stands, the evidence of record clearly and unmistakably indicates the veteran's PTSD is due to childhood sexual trauma prior to entering the military, and the evidence also clearly and unmistakably shows that additional sexual trauma during service did not permanently exacerbate matters. 3. On the other hand, the inception of her adenomyosis is traceable to her military service. CONCLUSIONS OF LAW 1. The veteran's PTSD was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. Her adenomyosis, however, was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Review of the claims file reveals compliance with the Veterans Claims Assistance Act of 2000 (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 April 2001, as well as information provided in subsequent follow-up letters, including in February 2005 and February 2007, 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 her in obtaining and what information or evidence she was responsible for providing. Thus, she received 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 the RO issued a VCAA notice letter prior to the adverse determination on appeal. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). That initial April 2001 VCAA letter did not specifically ask the veteran to provide any evidence in her possession pertaining to her claims. Id. at 120-21. But the more recent February 2005 VCAA letter did make this specific request, so this problem has been rectified such that any failure to make this specific request in the initial April 2001 VCAA letter is non-prejudicial, harmless error. See Mayfield v Nicholson, 07-7130 (Sept. 17, 2007) (Mayfield IV); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384, 392- 94 (1993). 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 - including the additional, even more recent February 2007 letter, resulted in any prejudice to the veteran. Although it was not until the February 2007 letter that she received the requisite information concerning the downstream disability rating and effective date elements of her claims (see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007)), after providing that additional notice, the RO went back and readjudicated her claims in the June 2007 supplemental statement of the case (SSOC) based on any additional evidence that had been submitted or otherwise obtained since the initial rating decision in question, statement of the case (SOC), and any prior SSOC. See, e.g., Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (indicating that, even in situations where the veteran did not receive VCAA notice until after the initial adjudication of the claim, the issuance of a fully-compliant VCAA notice followed by readjudication of the claim, such as in a SOC or SSOC, is sufficient to cure the timing defect). See, too, Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had 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, but also holding the evidence established the veteran was nonetheless afforded a meaningful opportunity to participate effectively in the adjudication of his claims). If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted because: (1) based on the communications sent to her over the course of this appeal, and her responses, she clearly has actual knowledge of the evidence she is required to submit; and (2) it is reasonable to expect her to understand from the notices provided what was needed to support her claims. 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 is also satisfied as to compliance with its instructions from the August 2003, December 2004, and October 2006 remands. See Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded this case, in part, to schedule the veteran for VA examinations to obtain a medical opinion indicating whether there is a correlation between her PTSD and military service - including, in particular, the specific incident in question (an alleged personal, i.e., sexual assault). 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Unfortunately, though, despite several attempts to have her examined, she failed to report for her evaluation - indeed, outright declining to be examined. So under these circumstances, there is no legitimate reason to again remand this case, which would result in even further delay in deciding this appeal, when by all accounts the veteran is simply unwilling to assist VA in obtaining the necessary supporting evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not a "one-way street") Yet another remand would serve no useful purpose. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); and Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). Consider also that the Board is granting the veteran's claim for adenomyosis, so an examination of this condition is not needed because she is receiving the requested benefit, even without an evaluation. Service Connection PTSD Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or a disease that was incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). Service connection may be demonstrated either by showing direct service incurrence or aggravation during service of a pre-existing condition beyond its natural progression, 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). Continuity of symptomatology after service is required where the condition noted in service is not chronic, or this is legitimately questionable. 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 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); 38 C.F.R. § 3.102. A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The first requirement for any service-connection claim is competent evidence of current disability. Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The veteran has diagnoses of PTSD, adenomyosis, and menorrhagia. Therefore, she has proof of the conditions claimed. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., 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. 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 also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (regarding combat veterans); Cohen v. Brown, 10 Vet. App. 128 (1997). According to the DSM-IV criteria, a diagnosis of PTSD requires that a veteran be exposed to a traumatic event, and that he/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). There is no evidence suggesting the veteran engaged in combat, and she has not alleged that she did. She asserts, instead, that her PTSD is from sexual harassment by a commanding officer - including an unwanted touch on her buttocks that set into motion a chain of events that later included being alienated and given extra assignments, etc. 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, 5.14I, 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, 5.14I 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 incident. 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 [PTSD] 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.A. § 7104. Here, the Board notes that a May 1991 service medical record (SMR) indicates the veteran had "unresolved conflicts over previous sexual assault." The SMR did not specify whether the sexual assault had occurred during or prior to service and referred her to counseling. A January 1992 consultation report stated that no significant psychiatric disqualifying factors, past or present, were found. The remainder of the veteran's SMRs are unremarkable for any mention of sexual assault. The RO sent the veteran a PTSD questionnaire, which she returned along with a stressor statement. In March 2003, she submitted statements from her husband and a friend, N. H., both stating she discussed her in-service sexual harassment with them. In the October 2006 remand, the Board conceded the veteran's stressor and remanded this case so she could undergo an examination to determine whether her PTSD was caused by the specific stressor of sexual harassment by a chief petty officer. The veteran's post-service medical treatment records provide a great deal of evidence that she also was sexually assaulted prior to entering the military. This pre-service trauma is evident in both her VA psychiatric treatment records and private psychiatric hospitalization records. Indeed, her VA treatment records provide a link between her current PTSD and her childhood trauma. See, e.g., the report of a February 1999 psychiatric evaluation at the local VA Medical Center in Columbia. See, too, the report of a June 2004 VA psychiatric evaluation. In one treatment record, however, from October 2001, a VA mental health care provider stated that, while the veteran's PTSD was primarily related to her early childhood experiences, it was also, in part, due to the sexual harassment during service because that made matters worse. Consequently, the Board remanded this case in October 2006 to determine to what extent the veteran's verified stressor of sexual harassment during service either caused or, alternatively, aggravated her PTSD. Unfortunately, though, as mentioned, the veteran subsequently failed to report for two separate VA mental status evaluations, the results of which could have provided evidence in favor of her claim. Thus, the Board is left to decide her appeal on the evidence already of record. See 38 C.F.R. § 3.655. The claims file was reviewed in connection with the June 2004 VA psychiatric evaluation. And concerning the reported childhood trauma, the veteran indicated being kidnapped from her foster home by a man who lived in her neighborhood. She said he took her from Michigan to Florida, where he kept her captive for two and a half years and sexually assaulted her. She had two children by him. She also reported that his next door neighbor helped her move into a battered women's shelter. When she joined the military in September 1989, she did not disclose that trauma. While in the military, as mentioned, the veteran was harassed by her female supervisory petty officer. The veteran stated that she reported the harassment and the petty officer retaliated by treating her unfairly with regard to leave schedules and working on weekends and holidays. During the objective mental status portion of the June 2004 evaluation, the veteran was alert and oriented. She made eye contact with the examiner and was cooperative. Her speech was normal and there was no evidence of psychomotor agitation or retardation. She described her mood as "kind of nervous," and her affect was blunted. Her thought processes were tangential but generally logical and goal directed. She denied hallucinations and delusions. Her memory and judgment were intact. The examiner diagnosed her with anxiety and personality disorders, not PTSD. The examiner determined her symptoms did not meet the criteria for an Axis I depressive or anxiety-related diagnosis, with the exception of the "not otherwise specified" category. The examiner also concluded there was no clear evidence the veteran's harassment in service exacerbated her mental condition and did not think her disorders were otherwise related to service, either. Even conceding the veteran has PTSD, as indicated in her VA treatment records, so ignoring for the moment the results of her June 2004 VA examination, there still is insufficient evidence to grant her claim. The Board's October 2006 remand was intended to clarify not only whether she has PTSD, but also (even if she does) whether it was either caused or at least chronically aggravated by her accepted stressor in service. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. But she failed on two separate occasions to report for her VA examination to obtain the necessary medical opinion concerning this. See again McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Therefore, no potentially helpful information resulted from the Board's remand. When a veteran, as here, does not appear for a scheduled examination in conjunction with an original compensation claim for service connection, the claim will be rated on the evidence of record. 38 C.F.R. § 3.655(b) (2007). And, unfortunately, the evidence of record does not support concluding that the veteran's PTSD was caused by sexual harassment in service; it clearly and unmistakably shows, instead, that her PTSD was caused by her childhood sexual trauma, so events that occurred many years before she entered the military. When remanding this case in October 2006 the Board conceded her stressor of additional sexual trauma while in the military, but for the reasons mentioned the evidence - at least that available on file, also is clearly and unmistakably against concluding that her PTSD was chronically aggravated (i.e., permanently worsened) by that incident and the related others during service. See VA O.G.C. Prec. Op. No. 3-2003 (July 16, 2003) (indicating VA has the responsibility of showing both that a condition clearly and unmistakably preexisted service and that it clearly and unmistakably was not aggravated by service beyond its natural progression). Moreover, since the evidence is clearly and unmistakably against her claim, there is no reasonable doubt to resolve in her favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See, too, Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Adenomyosis With regard to this claim, the veteran's SMRs show treatment for heavy menstrual bleeding and a diagnosis of adenomyosis. In April 1990, she was treaded for menorrhagia. A pelvic ultrasound revealed a non-homogenous echogenicity of the uterus, which a physician concluded might have been due to the adenomyosis. The veteran was diagnosed with adenomyosis and menorrhagia leading to anemia. She was also treated with oral contraceptives in March 1990 to control her heavy menstrual bleeding. Her military service ended in April 1992. In June 2004, the veteran had a VA gynecological examination. Her claims file was reviewed for her pertinent medical and military history. She reported being treated with oral contraceptives for menstrual problems while in service. She was using Depo-Provera injections at the time of her examination. She said she had unpredictable, heavy menstrual cycles. She had a history of anemia but had not been treated for it at the time of the examination. The examiner concluded the veteran's menstrual problems were a problem for her since she was in the military, and that she continued to have symptoms of anemia, which she also had during service. The Board finds that the facts and results of that examination are entitled to a lot of probative weight. This evidence is in favor of the veteran's claim. In adjudicating her claim, the Board has considered the doctrine of reasonable doubt. As the Court has written: A unique standard of proof applies in decisions on claims for veterans' benefits. Unlike other claimants and litigants, pursuant to 38 U.S.C. § 3007(b) [now 38 U.S.C.A. § 5107(b)], a veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Citing to the Supreme Court of the United States, the Court in Gilbert noted that the standard of proof is to instruct the fact-finder in the "'degree of confidence our society thinks we should have in the correctness of a factual conclusion for a particular type of adjudication.'" This burden "'reflects not only the weight of the private and public interest affected, but also a societal judgment about how the risk of error should be distributed between the litigants.'" Id. (citations omitted). As currently codified, the law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). See also 38 C.F.R. § 3.102 Consequently, the Board finds that the evidence supports granting service connection for adenomyosis. ORDER Service connection for PTSD is denied. Service connection for adenomyosis, however, is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs