Citation Nr: 0814359 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-13 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, to include as secondary to PTSD. 3. Entitlement to service connection for congestive heart failure, to include as secondary to PTSD. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The veteran served on active duty from September 1965 to October 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied the benefit sought on appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran does not have a corroborated in-service stressor upon which a diagnosis of PTSD may be based. 3. The veteran is not currently diagnosed as having a heart condition attributable to his active service or a service- connected disability. 4. The veteran is not currently diagnosed as having hypertension attributable to his active service or a service- connected disability. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. A heart condition, to include congestive heart failure, was not caused or worsened by service, nor is it presumed to have been caused by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). 3. Hypertension was not caused or worsened by service, nor is it presumed to have been caused by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a veteran of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a veteran in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter dated in October 2004, VA notified the veteran of the information and evidence needed to substantiate and complete his claims for service connection, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also generally advised the veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service- connection claim, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was provided in March 2006. As such, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial VCAA notice was given prior to the appealed AOJ decision, dated in February 2005. The notice in compliance with Dingess, however, was issued following the AOJ decision. The Court specifically stated in Pelegrini, however, that it was not requiring the voiding or nullification of any AOJ action or decision if adequate notice was not given prior to the appealed decision, only finding that appellants are entitled to VCAA-content- complying notice. Thus, the timing of the notice in this matter does not nullify the rating action upon which this appeal is based. Because proper notice was provided in March 2006 and a Supplemental Statement of the Case was issued subsequent to that notice in May 2006, the Board finds that notice is pre-decisional as per Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and by affording him the opportunity to give testimony before an RO hearing officer and/or the Board, even though he declined to do so. VA is not required to schedule the veteran for a physical examination because the evidence does not meet the criteria set forth in 38 C.F.R. § 3.159(c)(4). Specifically, there is no credible evidence of an event, injury, or disease in service upon which his current disabilities may be based. As such, the Board will not remand this case for a medical examination. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and that no further action is necessary to meet the requirements of the VCAA. Therefore, the Board now turns to the merits of the veteran's claim. The veteran seeks service connection for PTSD due to an alleged in-service sexual assault. The veteran further asserts that his heart condition and hypertension are secondarily related to his PTSD. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Moreover, where a service-connected disability causes an increase in, but is not the proximate cause of, a nonservice-connected disability, the veteran is entitled to service connection for that incremental increase in severity attributable to the service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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. The VA will not deny a post-traumatic stress disorder 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 or 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. See 38 C.F.R. § 3.304(f)(3). Congestive heart failure and hypertension are deemed to be chronic diseases under 38 C.F.R. § 3.309(a) and, as such, service connection may be granted if the evidence shows that the diseases manifested to a degree of ten percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307. PTSD The veteran alleged that while in service, he was sexually assaulted by four other service members. He did not report this incident to anyone. The veteran's service medical records (SMRs) are devoid of any complaints of PTSD-related symptoms. Further, the SMRs and personnel file reflect no treatment or reports related to the alleged sexual trauma. The veteran was discharged in October 1965 due to a seizure disorder. The veteran underwent VA treatment through the local Vet Center. In August 1991, the veteran reported suicidal ideations. In June 2004, the veteran sought PTSD treatment due to his recent suicidal "gesture," but was unwilling to reveal his claimed stressor. The veteran was noted to have inadequate routine hygiene, a depressed mood and flat/blunted affect. The following month, the veteran reported experiencing flashbacks to an incident that occurred during service. He reported that since this incident, he "lost everything." The veteran advised that he was depressed all the time and did not like himself. The following month, the veteran reported that he had been gang raped in his bunk during service. He stated that he had never told anyone of the incident and attempted suicide soon after it occurred. The veteran was diagnosed as having severe depression and the counselor could not rule out PTSD or another psychiatric disorder. In August 2004, the veteran elaborated on the alleged in- service sexual assault. He recalled four fellow service members were involved and he could not overcome them. He stated that he did not seek medical attention and subsequently had a seizure and was medically discharged from service. That same month, the veteran was diagnosed as having severe PTSD evidenced by depression, nightmares, isolation, sleep disturbance, irritability, reexperiencing and difficulty in personal relationships. In a September 2004 treatment note, the veteran reported that his representative from DVA told him that she had at least two other men had come forward with the same allegations of an in-service sexual assault at the Marine Corps Recruit Depot (MCRD) during the same time period. The veteran reported that due to his experiences in service, he began to abuse drugs and alcohol. VA medical treatment records reflect a current diagnosis of PTSD due to in-service sexual trauma. Of record, is the January 2005 stressor statement submitted by the veteran. The veteran reported his alleged in-service sexual assault. He advised that he lost consciousness 2 or 3 times and those involved told him they would kill him if he told anybody about the assault. The veteran noted that he felt ashamed and told no one of the incident. The next day, the veteran advised that he experienced a seizure and eventually was medically discharged. Given the evidence outlined above, the Board finds that service connection cannot be granted for PTSD. The Board finds that the veteran was not diagnosed as having PTSD in service or for many years thereafter. Although the veteran is currently diagnosed as having PTSD due to military sexual trauma, the Board finds that this diagnosis is based solely on the history as conveyed by the veteran, and there is no credible evidence to corroborate the in-service stressor. The Board notes that it is not bound by a medical opinion based solely upon an unsubstantiated history as related by the veteran. See LeShore v Brown, 8 Vet. App. 406, 409 (1995). Under these circumstances, the diagnosis of PTSD based on military sexual trauma is not accepted as there is no credible corroboration of the underlying in-service stressor. The veteran submitted evidence in support of his claim- namely, his statements of the alleged sexual assault. The Board is sympathetic to the issue raised in his claim for service connection, but the current record reflects no competent evidence corroborating the veteran's contention that he suffered a sexual assault while serving in the Marine Corps. The Board recognizes that the veteran was discharged within a few weeks following enlistment, but during that time, the veteran did not report the incidents, nor did he request a transfer to another duty location. Additionally, there is no indication from his personnel file that the alleged in-service stressor affected the performance of his service duties. There is no evidence of the need for treatment for decades following the veteran's discharge from service. Thus, the Board finds that the veteran does not have a corroborated in-service stressor upon which a diagnosis of PTSD may be based. Therefore, service connection must be denied. Congestive heart failure and hypertension The veteran seeks service connection for a heart condition and hypertension, both to include as secondary to PTSD. The veteran's enlistment medical examination is devoid of any reference to high blood pressure or a preexisting heart condition. In fact, upon enlistment the veteran's blood pressure was noted to be 98/80. The veteran was discharged over two weeks following enlistment for erroneous enlistment due to his seizure disorder. There was no notation, other than the seizure disorder, referenced upon service discharge. The veteran is currently diagnosed as having congestive heart failure, status-post myocardial infarction, and hypertension. The first mention of a heart condition and hypertension in the record was in a July 2007 treatment note. There is no opinion as to whether the veteran's current hypertension and heart condition had their onset during service. The Board notes that there were no other relevant medical records identified by the veteran, nor did the veteran request that VA assist in obtaining additional evidence. The veteran was noted to receive federal workers' compensation benefits, but as evidenced in the claims file, this compensation is received for an injury unrelated to the veteran's currently claimed disabilities. Upon review of the evidence as outlined above, the Board finds that the veteran is not entitled to service connection for a heart condition or hypertension. The veteran was not treated for either condition in service or for many years thereafter. In fact, the first evidence of record associated with the claims file is a treatment record from July 2007 referencing the veteran's prior medical history. As noted in the section above, the veteran's PTSD is not service connected. Further, there is no evidence linking the veteran's currently claimed conditions to service or to a service-connected disability. Absent a competent medical opinion linking the veteran's heart condition and hypertension to service or to a service-connected disability, service connection must be denied on a direct and secondary basis. ORDER Service connection for PTSD is denied. Service connection for hypertension is denied. Service connection for congestive heart failure is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs