Citation Nr: 0809761 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 04-39 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The veteran served on active duty from November 1982 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2003 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Denver, Colorado. Pursuant to a request received in October 2004, the veteran testified at a Board Video Conference hearing before the undersigned Veterans Law Judge in March 2005. The transcript of that hearing is of record. By a July 2006 action, the Board remanded this case for additional development. FINDING OF FACT There is ample psychiatric evidence to show that the veteran meets the diagnostic criteria for PTSD and there is competent opinion evidence that links her PTSD, in part, to an alleged sexual assault while she was on active duty; it is at least as likely as not that this claimed in-service stressor occurred. CONCLUSION OF LAW With application of the doctrine of reasonable doubt, service connection for PTSD is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veteran's Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As discussed in more detail below, sufficient evidence is of record to grant the veteran's claim for service connection for PTSD. Therefore, no further development is needed with regard to this issue. II. Factual Background The veteran contends that her PTSD is due to an in-service sexual assault. She asserts that while on active duty she was sexually harassed by other men (claim statement submitted in March 2002). In March 2003, during a VA examination, the veteran stated that she was raped during service. She repeated that assertion at a subsequent Board hearing. This latter incident allegedly occurred in or about March 1984. The relevant evidence is summarized below. The veteran entered and was discharged from service as a male. The post-service medical records reflect that in September 2000, the veteran underwent sex reassignment surgery. The service personnel records show that during service, the veteran was enrolled in the Nuclear Power Program. The records reflect that he was reprimanded several times regarding tardiness, as well as failure to complete homework and required study hours under the program. Behavioral problems were documented since approximately August 1983. In May 1984, the veteran was referred for a psychiatric evaluation. The examiner noted that the veteran was upset about being enrolled in the Nuclear Power program. Complaints included "feeling like an outsider". The examiner indicated that the veteran seemed to be very sensitive about how he was perceived by others. He displayed ideas of reference, derealization and depersonalization. His affect was inappropriate. The examiner concluded that the veteran had serious psychiatric problems. He was diagnosed with schizotypal personality, moderate to severe, which existed prior to service. The examiner recommended separation from service. He was honorably discharged in July 1984. Post-service medical records contain several diagnoses for multiple psychiatric conditions, to include depressive disorder, personality disorders, mood disorder, disassociative disorder, schizoaffective disorder and PTSD. Medical records from 1994 show that the veteran had relationship issues with his wife, along with gender identity issues. He underwent a psychological evaluation in February 1998. At the time, the veteran stated that he would undergo hormone therapy and would eventually have gender reassignment surgery. He reported that his wife of 12 years had filed for divorce in light of his decision to become a female. The veteran related attempting suicide because his wife had filed for divorce. He denied a history of sexual abuse. The post-service medical records reflect a diagnosis of PTSD as early as January 2001, after gender reassignment surgery. She reported a history of having been sexually abused by her father as a child and being raped two years prior to the evaluation. The veteran also reported having been under tremendous stress due to family related problems and attempting suicide on several occasions due to these problems In March 2003, the veteran underwent a VA psychological evaluation. She reported a history of significant childhood sexual abuse coupled with identity and gender problems. The veteran gave a history of having been raped in April 1984 while in service. Following the mental status evaluation, the examiner diagnosed the veteran with the following: (Axis I) PTSD; rule out bipolar disorder; rule out dissociative identify disorder, (Axis IV) occupational problems; problems with primary support group; problems related to social environment, and (Axis V) Global Assessment of Functioning (GAF) score of 31. The examiner stated that the veteran had reported a history of stressors which included sexual harassment and assault while in the military. Despite the fact that the veteran had a clear history of stressors which both pre and post dated time in the military, she was able to provide a complete history regarding her history of being sexually assaulted during service. According to the examiner, the veteran's psychological presentation when discussing that material was consistent with the history presented. Psychologically, the veteran reported a history of significant childhood sexual abuse, coupled with identity and gender problems dating back long before the military. Based upon her clinical presentation and test results, the veteran did meet the criteria for the diagnosis of PTSD based upon military related trauma. However, her overall psychological presentation was complicated by her history of multiple stressors and extreme symptomatology. It was likely that the veteran also suffered from a dissociative identity disorder; a condition that was related to childhood trauma and was exacerbated by ongoing and recurrent stressors (i.e., being raped in the military). According to the examiner, a complete evaluation for that condition was not possible, secondary to the level of distress and disorientation that was noted when recounting her trauma history. During an April 2003 VA psychiatric examination, the veteran reported that she had been born a hermaphrodite and her parents chose to raise her as a male. She stated that she was first psychiatrically hospitalized while in service, in 1984. The veteran related that she was raped and beaten up in April 1984. She stated that she had been sodomized. The veteran indicated that since service discharge, she was sexually/physically assaulted in 1998, 1999 and in 2002. Following an evaluation, the examiner diagnosed gender identity disorder, disassociative disorder, PTSD, mood disorder (not otherwise specified and to rule out bipolar disorder), and an eating disorder, not otherwise specified. In March 2007, the RO received a copy of a decision from the Social Security Administration (SSA), dated in October 2003, and copies of the medical records upon which the SSA decision was based. The RO also received SSA Disability Determination and Transmittal Reports, dated in June 2003 and December 2003. In the October 2003 decision, the SSA determined that the veteran was disabled under the Social Security Act and was thereby entitled to Social Security disability benefits. The December 2003 SSA Disability Determination and Transmittal Report shows that the veteran was awarded SSA disability benefits for affective disorders (primary diagnosis), and anxiety related disorders (secondary diagnosis). Pursuant to the Board's July 2006 remand decision, the veteran underwent a VA psychiatric examination in February 2007. At that time, the examiner stated that he had reviewed the veteran's claims file. The psychiatrist noted that according to the veteran, during service, she was sexually assaulted. Following the mental status evaluation, the examiner diagnosed the veteran with PTSD. The psychiatrist opined that the veteran's PTSD seemed to be due to both childhood abuse, as well as the sexual assaults which occurred in the military. According to the examiner, the veteran's PTSD "seemed to be as likely as not or 50 percent or more probability" to be due to the sexual assault which occurred in the military, but may also be partly due to her childhood abuse. The psychiatrist also diagnosed a dissociative identity disorder. The examiner opined that this latter disorder was due to childhood abuse and not military sexual trauma. III. Analysis Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a PTSD claim is based on in-service 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). In Cohen v. Brown, 10 Vet. App. 128, 145 (1997), the United States Court of Appeals for Veterans Claims (Court) noted that a significant change from DSM-III to DSM-IV was that the diagnostic criteria for a PTSD stressor (that is, the requirements for determining the sufficiency of a claimed stressor) "are no longer based solely on usual experience and response but are individualized (geared to the specific individual's actual experience and response)." Cohen, at 141. Where the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If the evidence supports the claim or is in relative equipoise, the veteran prevails. When a fair preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The record demonstrates that many years after service the veteran was diagnosed with PTSD and such diagnosis has been repeated many times. It is undisputed and clear from the record that the veteran has been unequivocally diagnosed several times with PTSD. It is also clear that the mental health professionals' diagnoses accepted her account of in- service sexual assaults as one of the precipitating causes of her PTSD. The record reflects that the veteran also suffered childhood abuse prior to entering military service, as well as three post-service sexual/physical assaults. The diagnosis for PTSD rests in part on purported stressors of personal assault suffered by the veteran during service, to specifically include being sexually assaulted and beaten in March or April 1984. Thus, there is psychiatric evidence of a diagnosis of PTSD and competent evidence of a nexus between her PTSD and an alleged in-service stressor. Therefore, the only remaining disputed issue is whether the veteran has submitted credible evidence to establish that the claimed in- service assaults actually occurred. Since the claimed stressor is not related to combat, the veteran's account of the in-service stressors must be corroborated by credible supporting evidence. Significantly, credible supporting evidence is not limited to service department records, but can be from any source. See Cohen (Douglas) v. West, 10 Vet. App. 125, 147 (1997). What the file contains is unquestioned accounts by the veteran, recited by her many years after the alleged service events. In statements submitted in support of her claim for PTSD, and in a hearing held in March 2005, the veteran described her attacker as a seaman who was white and had three stripes on his arm. She did not identify individuals involved in any of the alleged in-service incidents by name nor was there evidence of complaints filed by the veteran or official investigations or actions taken in response to any of these alleged incidents. The service medical records show no findings that suggest the veteran was beaten or sustained any type of physical trauma. However, it is significant to note that the records reflect that in May 1984, approximately one to two months after the alleged rape, the veteran was referred for a psychiatric evaluation and the examiner reported that the veteran had serious psychiatric problems. In this case, attempts to verify the veteran's stressors have been unsuccessful and the veteran has not submitted any supportive evidence to corroborate any of these claimed in- service events, to include sexual assault. Although the veteran testified at the March 2005 hearing that she had told the wife of a sailor about having been beaten and sexually assaulted, she could not remember her name. The current record is devoid of any supportive evidence from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, tests for sexually transmitted diseases, or statements from family members, roommates, fellow service members, or clergy. However, the Board observes that the record does contain a statement from the examiner from the veteran's March 2003 VA evaluation which indicates that the examiner accepted as true that the veteran's in-service sexual account actually happened. In the March 2003 VA examination report, the examiner indicated that the veteran's psychological presentation when discussing the sexual assault was consistent with the history presented. Such evidence has, by regulation, been deemed as significant for purposes of determining whether an in-service sexual assault occurred. 38 C.F.R. § 3.304(f)(3). The regulation states that VA may submit evidence to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. The examiner from the veteran's March 2003 VA examination commented on the evidence of record and stated that it was consistent with a history of sexual assault. The veteran also presented credible testimony at a Board hearing regarding the in- service sexual assault. In the instant case, the veteran contends that she has PTSD as result of service stressors. Specifically, she contends that she was sexually harassed during service and also raped by a seaman. The psychiatric evidence shows that the veteran has been diagnosed with PTSD and that the alleged sexual assault during service is among the stressors supporting the diagnosis. Having considered all the evidence, the Board finds that it is at least as likely as not that the veteran's account of the in-service sexual assault is accurate. As such, the benefit of the doubt rule mandates that the veteran prevail in her claim for service connection for PTSD. 38 U.S.C.A. § 5107. ORDER Service connection for PTSD is granted. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs