Citation Nr: 1010552 Decision Date: 03/19/10 Archive Date: 03/31/10 DOCKET NO. 05-24 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney WITNESS AT HEARING ON APPEAL Veteran and her spouse ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to January 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2007, the Veteran appeared before the undersigned Veterans Law Judge and gave testimony in support of her claim. In January 2008, the Board denied the Veteran's claim for service connection for PTSD. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court) and in June 2008, the Court granted a Joint Motion of the parties to remand (JMR), and remanded the case to the Board for readjudication consistent with the JMR. In November 2008, the Board again denied the service connection for PTSD. The Veteran thereafter appealed to the Court. Pursuant to a second JMR, in September 2009, the Court again remanded the case to the Board for readjudication consistent with the JMR. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2009). FINDING OF FACT PTSD is attributable to service. CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304(f) (2009). REASONS AND BASES FOR FINDING AND CONCLUSION There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, service connection may 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). Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In considering claims of veterans who engaged in combat, the adverse effect of not having an official report of an inservice injury or disease can be overcome by satisfactory lay or other evidence which shall be sufficient proof of service occurrence or aggravation if consistent with the circumstances, conditions, or hardships of service. 38 U.S.C.A. § 1154(b). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). 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 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Participation in combat, a determination that is to be made on a case by case basis, requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999). In determining whether the Veteran participated in combat, the veteran's oral and written testimony will be weighed together with the other evidence of record. Cohen v. Brown, 10 Vet. App. 128, 146 (1997). If VA determines the Veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his 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 circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki, 6 Vet. App. at 98. If, however, VA determines either that the Veteran did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborate his testimony or statements. See Zarycki, 6 Vet. App. at 98. Where a determination is made that the Veteran did not "engage in combat with the enemy," or that the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which 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, 6 Vet. App. at 98 (1993). In Doran v. Brown, 6 Vet. App. 283, 290-91 (1994), the Court stated that "the absence of corroboration in the service records, when there is nothing in the available records that is inconsistent with other evidence, does not relieve the Board of its obligations to assess the credibility and probative value of the other evidence." In this case, the Veteran served during peacetime; there was no combat service. Rather, she claims that she was raped by another service member. In Patton v. West, 12 Vet. App. 272, 278 (1999), the Court pointed out that there are special evidentiary procedures for PTSD claims based on personal assault contained in VA ADJUDICATION MANUAL M21-1, Part III, para. 5.14c (February 20, 1996), and former M21-1, Part III, para. 7.46(c)(2) (October 11, 1995). In personal assault cases, more particularized requirements are established regarding the development of "alternative sources" of information as service records "may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities." VA ADJUDICATION PROCEDURAL MANUAL M21-1, Part III, para. 5.14c(5). With respect to personal assaults, 38 C.F.R. § 3.304(f) was amended in March 2002, to add the following: 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). The Board notes that the element at issue for this claim concerns whether there is adequate and credible supporting evidence that the Veteran's claimed in-service stressor actually occurred as there already is a diagnosis of PTSD. See 38 C.F.R. § 3.304(f). The Board must pay particular attention to the requirements of 38 C.F.R. § 3.304(f)(3), which, as addressed above, provide that VA must consider other substitute forms of evidence and information, beyond that contained in the Veteran's service records, as possible evidence in support of the occurrence of a claimed in-service stressor related to personal assault. Claims involving personal assaults fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events the veteran has alleged. See, e.g., Patton v. West, 12 Vet. App. at 281. The Veteran's claims that her inservice stressor was a personal assault by a sergeant in September or October 1977. She contends that her mess sergeant drove her to the woods and sexually assaulted her. She stated that he was caught by the police, who happened to be a friend of his, and told him to take her someplace else. Her assailant then took her to another mess sergeant's house where she was sexually assaulted by several of his friends. The Veteran stated that all she remembers was waking up the next day in her barracks. She went to her battalion commander (also a friend of the assailant) who said that he would take care of it. The Veteran stated that two days later she was transferred to Headquarters working as a liaison officer. Previously, she was working as a chef. Then a few months later her Major came to her and told her that the Red Cross had called him and said that her grandmother was sick, and that she had to leave the Army to care for her. The Veteran stated that she did not report the incident to the police. She has also testified that she did not see any doctors at the time she was assaulted. The Veteran stated that she told two people about the assault, her grandmother and her brother and that both are now deceased. She has also reported that she never reported the incident or sought counseling for it. In the first JMR, it was noted that the Veteran had reported that she informed her battalion commander about her claimed in-service sexual assault and that the Board had previously failed to adequately discuss what, if any, reasonable efforts were made to obtain relevant information from the battalion commander. In the November 2008 decision, the Board noted that the Court had stated in Forcier v. Nicholson, 19 Vet. App. 414, 422 (2006), that, "If in the process of identifying these potential sources, a claimant provided the name or names of any persons who allegedly perpetrated the assault or the names of any potential witnesses, the Secretary's reasonable efforts to assist, as required under section 5103A(a), may also include attempting to assist the claimant in obtaining statements from these persons." The Board cited to an August 2004 form sent to the Veteran by the RO which specifically requested that she provide the full names and ranks of any others who were involved in the assault. She was also advised that if she discussed the event with any other individual, she may want to ask them to provide a statement concerning their knowledge of the incident, and that if the incident was reported to authorities, to list their complete name and address. However, the Board indicated that he Veteran had not provided the name of her battalion commander or any statement from him, despite the request from the RO for such information. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). She had previously indicated in her June 2004 stressor statement that the battalion commander was a friend of her assailant. When contacted by the RO in August 2006, she stated that she had no other information or evidence to give to VA to substantiate her claim. Accordingly, the Board found that there was no further duty to assist with respect to this aspect of the claim. In the current JMR, it was indicated that the Board should again determine if it is necessary for VA to attempt to identify the Veteran's battalion commander based on the available information regarding the Veteran's units of service or through coordination with the appropriate entity, such as the National Personnel Records Center (NPRC). It was also indicated that the Board should decide whether, if the battalion commander is located, VA should attempt to obtain a statement from his regarding his knowledge of the claimed sexual assault. At this juncture, the Board notes that it is unnecessary to corroborate the claimed stressor with such information as the Veteran has submitted additional evidence subsequent to the JMR in support of her claim. This new evidence places the claim in equipoise and the Board must afford the Veteran the benefit of the doubt. Therefore, the Board concludes that the claim may be granted on that basis and a remand is not necessary here. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose.) However, in reply to the inquiry posed in the JMR, the Board finds that a request being made of the battalion commander who purportedly assisted in concealing a crime regarding the claimed rape is similar to a request being made of the alleged perpetrator of the claimed rape, for verification of that crime. It is ethically problematical whether any government agency should request that an individual incriminate himself 30 years after the alleged crime occurred in order to verify the claim of another individual. However, as noted, the claim is being granted on the record. A review of the contemporaneous service records does not reflect evidence that the Veteran was sexually assaulted during service. The service treatment records and service personnel records are negative for any complaints, treatment, or diagnoses of a mental disorder or any other indicia of in- service trauma. While the Veteran has stated that she did not have an exit examination from service, (see, VA Form 9 dated in July 2005), a discharge examination report is in the file. On the Veteran's January 1978 discharge exam, she checked "yes" for having venereal disease; however, she denied nervous problems of any sort. A review of the service medical records reflects that she was treated for thrush in March 1977 and was in contact with gonorrhea in August 1977; however, these events were prior to her claimed sexual assault. Pelvic examination and psychiatric evaluation were normal on separation from service in January 1978. The Veteran's service personnel records show that she was transferred from Fort Jackson, South Carolina, to Fort Sill, Oklahoma, in July 1977. She was promoted to private first class on November 22, 1977. Thereafter, she was discharged due to hardship, at her request. On her January 1978 application, the Veteran stated that her children were living with her grandmother. She stated that she had received a letter from her grandmother's doctor indicating the severity of her grandmother's health and that the only way she could care for her grandmother and her children was to request separation. The Veteran has indicated that she did not report the incident to the police and did not seek any medical treatment or counseling. She has indicated that she did inform three people of the incident, two of which are now deceased. There is no verification from the third person, her battalion commander. She contends, in essence, that she was forced to leave the military after her alleged assault. At her hearing in August 2007, she said that after she was sent to Headquarters, the Major informed her that her grandmother was ill and that she had to leave the Army to care for her. She said that when she arrived home after her separation from service in 1978, she told her grandmother that she was not returning to the military because she had been discharged to care for her, and her grandmother said, "Baby, I'm not sick." In essence, she appears to be claiming that her grandmother was not really ill and that the military used this as a ruse to discharge her. She appears to be indicating that she learned of her grandmother's illness from her Major. However, review of the personnel records shows that in January 1978 the Veteran herself completed an Application for Separation due to Hardship. She said that she had received a letter from her grandmother's doctor disclosing the severity of her health and the need for her to be move closer to her in Tampa. She stated that because there were no Army stations near Tampa, she was requesting separation from service. The Veteran's current contentions conflict with the statements made on her January 1978 Application for Separation due to Hardship. Further, the Veteran testified in August 2007 that her grandmother visited her the day after the assault took place. She indicated that this occurred at Thanksgiving time and her grandmother went to the mess hall and took a picture of her assailant. The Veteran stated that she was supposed to finish setting up the table, and her grandmother asked the assailant if she could take a picture of him next to that table. However, the veteran had previously indicated that the assault took place in September or October 1977 and that she was transferred to Headquarters two days after it occurred to work as a liaison officer. Her statement that she was working at the mess hall setting up a table in November 1977, around the time of Thanksgiving, is inconsistent. The Veteran also stated in her substantive appeal that she did not receive a separation examination because of her hurried separation; however, as noted above, one was performed in January 1978. However, the Veteran has recently submitted evidence which supports her claim, consisting of statements from her husband, a brother, and her sister-in-law. Although none of these persons were those that the Veteran contacted during service, they indicated that after service, the Veteran appeared non-social, isolated, and depressed. They basically indicated that they had knowledge of the Veteran's demeanor before and after service, and the changes thereto. Her sister-in-law indicated that her husband (the Veteran's deceased brother) told her that the Veteran had been raped while she was in service by her sergeant. Her surviving brother indicated that he was very close to the Veteran before service; however, after service, the Veteran was a completely different person. He recognized that something had happened to her, but to this day, she would not discuss it with him. Her husband stated that they were childhood sweethearts and then best buddies during service (although not serving in the same unit), but the Veteran stopped writing to him and became very cold. After the claimed incident, she withdrew and seemed broken down. She was no longer interested in intimate contact. He related that he did not know about the sexual trauma until they were in counseling and she finally told him of the alleged rape. The Veteran also submitted a January 2010 private medical report from Earl Taitt, M.D., a board-certified psychiatrist. He reviewed her report of the claimed inservice sexual trauma. He discussed her current psychiatric symptoms. Dr. Taitt also performed a mental status examination. The diagnosis was PTSD. The Axis IV diagnosis was psychosocial stressors, sexual assault. Thus, the examiner made a determination that the Veteran's PTSD was related to the claimed sexual assault, also indicating that this was a sufficient stressor. See Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). Dr. Taitt went on to clarify that the sexual trauma that occurred during the military caused the PTSD. He stated that he had reviewed the three lay statements from individuals who noticed her change in mood and behavior at a time consistent with the report of being raped. There is evidence in favor and against the Veteran's claim. The evidence against the claim includes a myriad of inconsistencies in the Veteran's statements as well as a lack of contemporaneous evidence supporting the claimed rape. However, there is also supporting evidence which was submitted after the most recent JMR. In affording the Veteran the benefit-of-the-doubt, as required by VA law and regulations, there is evidence that tends to corroborate the existence of an inservice stressor. Specifically, while the inservice rape described by the Veteran is not specifically corroborated, there is generally supporting evidence that the rape occurred via the three lay statements. The VA examiner felt that these lay statements sufficiently demonstrated changes in mood and behavior, which concurred with the Veteran's report of being raped. Therefore, in affording the Veteran every reasonable doubt with regard to credibility inconsistencies and in view of the report of the board-certified psychiatrist, the Board finds that the evidence in this case is so evenly balanced so as to allow application of the benefit- of-the-doubt rule and service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs