Citation Nr: 1003306 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 08-06 878A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for depression. REPRESENTATION Appellant represented by: M. Scott Kidd, Attorney At Law WITNESSES AT HEARING ON APPEAL Appellant and his Brother ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to January 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In October 2009, the Veteran testified at a travel board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with his claims folders. The issue of entitlement to service connection for depression is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The Veteran has been diagnosed with PTSD that has been linked to a corroborated in-service stressor. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, service connection for PTSD is established. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties To Notify And Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for Department of Veterans Affairs (VA) benefits. The notice must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353- 56 (Apr. 30, 2008). During the pendency of the Veteran's appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran and his representative contend that his currently diagnosed PTSD either had its onset in service or is etiologically linked to his service. Because the claim for service connection on appeal is being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non- prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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 C.F.R. § 3.303(d). Some chronic diseases are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including psychosis). Service connection for PTSD in particular requires medical evidence diagnosing 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. 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. Likewise, if the evidence establishes that PTSD was diagnosed during service and the claimed stressor is related to that service, 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) (as amended by 64 Fed. Reg. 32,807-32,808 (1999)) (effective March 7, 1997) (implementing the decision in Cohen v. Brown, 10 Vet. App. 128 (1997))(also amended by 74 Fed. Reg. 14,491-14,492 (2009))(effective October 29, 2008). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In this case, VA treatment records, dating from May 2006, indicate ongoing treatment for a psychiatric disorder, variously diagnosed as major depression, adjustment disorder, rule out schizophrenia versus schizoaffective disorder, somatoform disorder and rule out PTSD. The Veteran was first diagnosed with rule out PTSD as early as May 2006 and with PTSD as early as March 2007. The March 2007 VA psychiatry psychotherapy individual note, conducted by a psychologist, shows a diagnosis of PTSD, which the examiner etiologically links, in part, to the Veteran's reported in-service stressor of having been sexually assaulted. The VA examiner noted that the Veteran reported mental and physical abuse as a child, but not sexual abuse. Likewise, June and August 2009 VA treatment records, note the Veteran's history and show assessments of PTSD with secondary depression, probably due to being sexually assaulted in the military. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the competent medical evidence of record supports a current PTSD diagnosis. Thus, the remaining issue for service connection purposes is whether there is credible evidence that the claimed in-service stressor actually occurred. The Veteran contends that he has PTSD as a result of an in- service sexual assault. His service treatment records show no relevant complaints, findings, treatment or diagnoses. His December 1975 separation examination report shows that a psychiatric evaluation was normal. Pursuant to VA regulation, the evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the Veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). If the VA determines that the Veteran engaged in combat with the enemy or was a POW and the alleged stressor is combat or POW related, then the Veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with the circumstances, conditions or hardships of service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 91 (1993). If, however, the VA determines that the Veteran did not engage in combat with the enemy or was a POW, or that the Veteran engaged in combat with the enemy or was a POW, but the alleged stressor is not combat or POW related, the Veteran's lay testimony by itself, is insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the Veteran's statements or testimony. Cohen v. Brown, 10 Vet. App. 128 (1997). If a PTSD claim is based on claimed 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 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) (2009). In Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to claims for PTSD based on personal assault. In particular, the Court held that the provisions in M21-1R, Part IV, Subpart ii, Section D, Chapter 17, which address PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-99 (1998). (The Board notes that the aforementioned are the current provisions related to PTSD claims based on personal assault). M21-1R, Part IV, Subpart ii, Section D, Chapter 17 states that, in cases of assault, development of alternate sources for information is critical. There is provided an extensive list of alternative sources competent to provide credible evidence that 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. Id. In addition, 38 C.F.R. § 3.304(f)(3) provides that behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. The Court in Patton stated that such changes in behavior should be examined and clinically interpreted to determine whether they constitute evidence of "(v)isits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment." Based on the Veteran's military records, the Board finds that he did not engage in combat. Indeed, the Veteran does not contend that he engaged in combat. Through reviewing the Veteran's VA treatment records, as well as his written statements and testimony, the Board notes that the Veteran alleges being sexually assaulted in early 1971 while on leave in Hong Kong. Initially, the Veteran's service personnel records show that he did receive non-judicial punishment in May 1975 for dereliction of duty and was demoted in rank. Prior to that date, there is no indication of any personnel issues. This evidence is somewhat suggestive of a behavior change, although it is several years following the alleged incident. However, the Veteran's brother has submitted a notarized statement and testimony indicating that the Veteran confided the circumstances of the sexual assault to him when the Veteran returned home on leave sometime in the early 1970s. The brother testified and wrote in his statement that he advised the Veteran to forget about the assault and move on. While the foregoing evidence does not corroborate every detail of the Veteran's alleged stressor, the Board finds that the evidence appears consistent with his assertions. Moreover, corroboration of every detail of a claimed stressor is not required. See Pentecost v. Principi, 16 Vet. App.124 (2002); Suozzi v. Brown, 10 Vet. App. App. 307, 311 (1997) (detailed corroboration of physical proximity to, or firsthand experience with, the alleged stressors is not required in order to establish that the stressors actually occurred). The Board notes that there is nothing in the record that specifically contradicts the Veteran's account of events in service. The Board also finds the Veteran's and his brother's testimony to be credible as they are competent to give evidence about what they experienced. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Therefore, considered in the aggregate and resolving all reasonable doubt in the Veteran's favor, the Board finds that the occurrence of the alleged in-service stressor is established. 38 C.F.R. § 3.304(f). Accordingly, based on the totality of the evidence, and resolving all reasonable doubt in his favor, service connection for PTSD is warranted. 38 U.S.C.A. § 5107(b). ORDER Service connection for PTSD is granted. REMAND In this case, the Board finds that additional development is required with respect to the Veteran's claim of service connection for depression. VA is required to provide a medical examination when the record of the claim does not contain sufficient medical evidence for VA to adjudicate the claim. See 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). The June and August 2009 VA treatment records, note the treating psychologist's opinion that the Veteran has PTSD and secondary depression. The psychologist opined that the Veteran's psychiatric disability was probably due to being sexually assaulted in the military. However, the examiner did not address whether the Veteran's depression is merely a symptom of his service-connected PTSD or whether it is a separately diagnosed disability that may have been proximately caused by or aggravated by his service-connected PTSD. There is no indication that the psychologist had the opportunity to review the Veteran's claims file or his treatment records in rendering his opinion and he offers no rationale for his opinion. The Board therefore finds that the Veteran should be afforded a VA psychiatric examination to determine the nature, extent and etiology of any diagnosed depression, if found to be present, and to specifically determine if the Veteran's service-connected PTSD either causes or aggravates his current depression. See 38 U.S.C.A § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4), 3.310 (2006); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for the Veteran to undergo a VA psychiatric examination by a physician with appropriate expertise to determine the nature, extent and etiology of the Veteran's depression, if found to be present. All indicated studies should be performed, to include psychological testing if appropriate, and all findings should be reported in detail. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the examiner. Based on the medical findings and a review of the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran has diagnosed depression as a result of his service or any incident therein, or whether it is at least as likely as not that the Veteran's depression is causally related to or aggravated by his service- connected PTSD. A complete rationale must be given for any opinion expressed, and the foundation for all conclusions should be clearly set forth. If the examiner is unable to give an opinion without resorting to speculation, the report should so state. The Veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on this claim. 2. Thereafter, the RO should readjudicate the issue on appeal. If the issue remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs