Citation Nr: 0829981 Decision Date: 09/04/08 Archive Date: 09/10/08 DOCKET NO. 07-08 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and partner ATTORNEY FOR THE BOARD T. L. Anderson, Associate Counsel INTRODUCTION The veteran was an enlisted member of the Army National Guard (ARNG) of California from December 1974 to June 1977. She served on active duty for training (ADT)for the ARNG from October 1975 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The evidence of record shows that the veteran has a current diagnosis of PTSD. 2. The evidence of record does not demonstrate the veteran engaged in combat with the enemy, and further fails to verify the veteran's claimed non-combat in-service stressor. CONCLUSION OF LAW Post-traumatic stress disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1113, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); petition for cert. granted (U.S. June 16, 2008) (No. 07-1209). In July 2005 VA sent the veteran a letter informing her of the types of evidence needed to substantiate her claim and its duty to assist her in substantiating her claim under the VCAA. The letter informed the veteran that VA would assist her in obtaining evidence necessary to support her claim, such as medical records, employment records, or records from other Federal agencies. She was advised that it is her responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to her claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in her possession to the RO. The Board finds that the content of the letter provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the June 2006 rating decision, March 2007 SOC, and March 2008 SSOC explained the basis for the RO's action, and the SOC and SSOC provided her with additional 60-day periods to submit more evidence. It appears that all obtainable evidence identified by the veteran relative to her claim has been obtained and associated with the claims file, and that neither she nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of her claims, and to respond to VA notices. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. In addition to the foregoing harmless-error analysis, we note that the decision of the U.S. Court of Appeals for Veterans Claims in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. This requirement was fulfilled in an April 2006 letter which VA sent to the veteran. As the veteran has contended that she experienced a sexual assault stressor during service, the Board has considered the decision in Patton v. West, 12 Vet. App. 272 (1999). There, the Court held that special consideration must be given to claims for PTSD based on sexual assault. In particular, the Court held that the provisions in M21-1MR, Part III, 5.14(c) (rescinded and replaced, in relevant part, by M21-1MR, Part III, Subpart iv, Chapter 4, Section H30), which address 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). Section H30, Paragraph (b), states that, in cases of sexual assault, development of alternate sources for information is critical. There is provided an extensive list of alternative sources competent to provide credible evidence which may support the conclusion that the event occurred, to include medical records, military or civilian police reports, reports from crisis intervention centers, testimonial statements from confidants, and copies of personal diaries or journals. See M21-1MR, Part III, Subpart iv, Chapter 4, Section H30, Paragraph (b). Also of particular pertinence is the provision of Paragraph (c) of Section H30, which states that behavioral changes which occurred around the time of the incident may indicate the occurrence of an in-service stressor. In this case, the veteran reported during her June 2007 hearing at the RO before the Decision Review Officer (DRO) that a Military Police (MP) report was made on the night of the rape which is the basis of her claim. Consequently, in October 2007 and January 2008, the RO sent letters to the U.S. Army Crime Records Center requesting any records relating to the assault. The Crime Records Center replied in November 2007 and January 2008 that pertinent records could not be located. In addition, the veteran testified at the DRO hearing that she had reported the incident to two of her colleagues, and to her commanding officer. However, she was unable to provide the names of these individuals. Finally, the veteran testified that she had received psychiatric treatment while incarcerated after leaving service. Limited records have been received from the California Department of Corrections. Several attempts were made to obtain records from the Valley State Prison for Women in California in October 2007, December 2007, and January 2008, but no response was received with regard to the January 2008 letter, while the responses to the October and December 2007 requests indicated the records, if in existence, could be found elsewhere. Despite receiving VCAA notice letters as described earlier, the veteran has not provided any further identifying information with respect to her claimed in- service assault. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising her as to the evidence needed, and in obtaining evidence pertinent to her claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection Claim A. Applicable Law Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a), 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. 38 C.F.R. § 3.304(f). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DSM-IV). Further relating to claims of service connection for PTSD, in Zarycki v. Brown, 6 Vet. App. 91 (1993), the Court set forth the analytical framework and line of reasoning for determining whether a veteran was exposed to a recognizable stressor during service, which, as discussed above, is an essential element in supporting a claim for service connection for PTSD. In Zarycki, it was noted that, under 38 U.S.C.A. 1154(b), 38 C.F.R. 3.304(d) and (f), and the applicable provisions contained in VA Manual M21-1, the evidence necessary to establish the incurrence of a recognizable stressor during service to support a claim of service connection for PTSD will vary depending on whether the veteran "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60 (1993). In the present case, there is no issue as to whether the veteran ever engaged in combat, and she does not so contend. Her service personnel records show that she served on ADT for eight months, at military facilities in the United States, in 1975 and 1976. Where there is no combat experience, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Further, an opinion by a mental health professional based upon a post-service examination of the veteran cannot be used to establish the occurrence of a stressor. Moreau v. Brown, 9 Vet. App. at 395-96 (1996); Cohen v. Brown, 10 Vet. App. 128 (1997). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of 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); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. B. Facts and Analysis In the present case, the veteran is claiming entitlement to service connection for PTSD. The Board first considers whether there has been a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), which requires that the diagnosis conform to DSM-IV and be supported by the findings on an examination report. This veteran was first diagnosed with PTSD in June 2005 at an outpatient clinic in Bakersfield. She reported nightmares about being raped, and further reported anxiety, depression, sleep disturbance, crying spells, poor concentration, and irritability. She stated she had threatened to commit suicide by hanging herself in 2004, did not follow through with an attempt. She said she was first raped in 1975 while serving on ADT, then was raped a second time in 1981. Since that time, she had been incarcerated three times; at least two of those incarcerations were for violent crimes. She said she was first incarcerated in 1981, after she shot at the three men who were involved in the second rape. She was incarcerated again in 1994 after getting into a physical altercation with her daughter. The veteran reported she had smoked crack cocaine one or two times per week in 1994 while she was out of prison, but reported no other history of substance abuse. The examiner diagnosed PTSD and depressive disorder NOS (not otherwise specified), and referred the veteran to psychiatry for a medication consult and to psychology for counseling. The veteran was again diagnosed with PTSD following a behavioral health intake conducted at the Loma Linda VAMC in July 2007. She reported anxiety, sleep disturbance, nightmares, fatigue, and hypervigilance. She related her symptoms back to a military sexual trauma, seeing injured soldiers, and her recent concerns about the possibility of her feet being amputated (due to diabetes). The examiner diagnosed r/o ("rule out") anxiety disorder NOS, r/o PTSD, and r/o anxiety disorder or mood disorder due to general medical condition (diabetes). Based upon the June 2005 and July 2007 examination records, the Board finds that the criteria for a diagnosis of PTSD under 38 C.F.R. § 4.125(a) have been met. Next, the Board will examine whether the veteran in this case was exposed to an in-service stressor which could support a diagnosis of PTSD. As noted above, there is no allegation of combat during the veteran's National Guard service. Therefore, the veteran's lay statements as to any in-service stressor cannot be accepted without further corroboration through independent evidence. Doran, 6 Vet. App. at 288-89. In the present case, the veteran's PTSD claim is based on a contention of rape. As she reported at her June 2007 DRO hearing, the claimed assault occurred in October 1975 while she was on ADT, in basic training at Fort Jackson, South Carolina. She said she had been drinking and playing pool at a non-commissioned officers club, and that after leaving, when she was alone outside the club, she was attacked. She testified that the MPs arrived at the scene after the attack and she reported what had happened. She did not seek medical attention after the assault, but she told two female colleagues who had been with her earlier that night (but she did not remember their first names). She said she had also reported the incident to her commanding officer the next day, but she was unable to recall his name. With regard to personal assault cases, the Court in the Patton case, supra, pointed out that "VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." Patton, 12 Vet. App. at 280 (citing VA Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c(8), (9)). The Court has also held that these provisions of M21-1, which provide special evidentiary procedures for PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations. See YR v. West, 11 Vet. App. 393 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). The Board notes that M21-1, Part III, Chapter 5, the section of the manual discussed in Patton, has been rescinded and replaced, in relevant part, by M21-1MR, Part III, Subpart iv, Chapter 4, Section H30. Specifically, Paragraph (c) provides that: "[i]f the military records contain no documentation that personal trauma occurred, consider secondary evidence, such as...evidence of behavioral changes that occurred around the time of the incident, including: visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; use of pregnancy tests or tests for sexually-transmitted diseases around the time of the incident; sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; changes in performance and performance evaluations...evidence of substance abuse, such as alcohol or drugs...increased interest in tests for Human Immunodeficiency Virus (HIV) or sexually transmitted diseases." M21-1MR, Part III, Subpart iv, Chapter 4, Section H30, Paragraph (c). See also M21-1MR, Part IV, Subpart ii, Chap.1, Sec.D, Para. 17, as to development of evidence in personal trauma PTSD claims. The Court in Patton went on to note that the manual improperly appeared to require that the existence of the in- service stressor be shown by a preponderance of evidence. Any such requirement would be inconsistent with the so-called equipoise doctrine, where the benefit of the doubt is given to the claimant unless the evidence preponderates against the claim. Thus, Patton serves to expand the universe of evidence that can be used to corroborate a stressor based on in-service personal assault. For example, evidence of behavior changes around the time of the incident can corroborate the stressor. In this vein, the veteran's service personnel records have been reviewed. The Record of Assignments shows that the veteran reported for basic combat training (BCT) at Fort Jackson in October 1975. She was then transferred to Lowry Air Force Base for Advanced Individual Training (AIT) in January 1976, followed by a second transfer back to Fort Jackson for further AIT in April 1976. She remained there until she was released from ADT and ordered to return to her unit of assignment, the California Army National Guard. The Board notes that, under the provisions of M21-1MR, discussed above, changes in performance around the time of the alleged personal trauma can serve as evidence of a behavioral change to corroborate an in-service stressor. The veteran in this case testified that she was transferred and had to re-commence her training from the beginning due to poor performance reports following the assault. Her service records do contain a March 1976 Record of Administrative Training Action wherein the veteran was placed on ineffective status, and it contains an order for her to return to her parent unit. Further, the form states that she failed Block 1, was given remedial training, began Block 1 again, but failed to make progress. This record is dated six months after the alleged assault. There is no other documentation in the evidence of record showing a behavioral change around the time of the claimed assault. There are no service treatment records indicating that the veteran sought medical attention after the assault. Indeed, this is consistent with her testimony at the June 2007 hearing that she did not seek medical attention, nor did she report for pregnancy or STD tests. The veteran reported drug use in 1994, almost 20 years after the assault. In addition, as previously discussed, the RO made many attempts to obtain psychiatric records from the Department of Corrections, but the search was unsuccessful. In summary, there is very little evidence in the record to corroborate the veteran's statement that a personal assault occurred, and the weight of the probative evidence in favor of the claim does not approach an approximate balance with the evidence against it. The Board acknowledges the veteran's own belief that her current diagnosis of PTSD was caused by the sexual trauma she experienced in 1975 during ADT, and not by any post-service stressors, such as the post-service rape she has described. However, the resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical causation and etiology, require professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that the veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events, such as her description of an in-service assault, or the presence of disability or symptoms subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, as discussed above, the claim herein requires corroboration of the undocumented in-service stressor to support a relationship with the current diagnosis, and that evidentiary requirement has not been met. In conclusion, the evidence of record fails to verify or corroborate the in-service stressor claimed by the veteran. Therefore, even with a current diagnosis of PTSD, the claim must fail. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for PTSD is denied. ______________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs