Citation Nr: 1011528 Decision Date: 03/26/10 Archive Date: 04/07/10 DOCKET NO. 06-10 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability. 3. Entitlement to service connection for borderline personality disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran had active service from June 1978 to June 1985. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for PTSD. The Veteran testified at a RO hearing in November 2005 and at a Board hearing in April 2007. This matter was remanded in November 2007. The Board will also consider entitlement to service connection for an acquired psychiatric disorder and entitlement to borderline personality disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 4 (2009). In November 2009, the Veteran submitted additional evidence in support of her appeal and waived AOJ review. See 38 C.F.R. §§ 19.9, 19.31(b)(1) (2009). FINDINGS OF FACT 1. The most probative evidence of record reflects that the Veteran does not have PTSD. 2. The Veteran's adjustment disorder with mixed anxiety and depression pre-existed service, and was aggravated in service. 3. The Veteran has a personality disorder. CONCLUSIONS OF LAW 1. PTSD was not incurred in the Veteran's active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 2. An acquired psychiatric disorder, to include adjustment disorder with mixed anxiety and depression, was incurred in the Veteran's active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 3. The Veteran's borderline personality disorder is not a disability for VA compensation purposes. 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 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 United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, 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. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically 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, VA satisfied its duties to the Veteran in a VCAA letter issued in October 2004. The letter predated the March 2005 rating decision. See id. Thereafter, VCAA letters were issued to the Veteran in March 2006 and December 2007. Collectively, the VCAA letters notified the Veteran of what information and evidence is needed to substantiate her claim, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the information necessary to establish a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The evidence of record contains service treatment records, VA treatment records, and private treatment records. There is no indication of relevant, outstanding records which would support the Veteran's claims. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran underwent a VA examination in June 2009, which the Board has determined is sufficient to determine the merits of the claims. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). PTSD Service connection for PTSD 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. See 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 Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). The Veteran has claimed PTSD due to duress, sexual harassment, and sexual assault in service. Specifically, the Veteran claims that she aborted a pregnancy from a serviceman under duress from her master sergeant; she was subject to comments from another sergeant that compared her to the topless island woman on a postcard that he kept on his desk; and, she was raped by a Captain. VA Adjudication Procedure Manual M21-1 (M21-1), Part III, regarding personal assault notes that: "Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking." M21-1, Part III, 5.14c. M21-1 identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1, Part III, 5.14c(4)(a). When there is no indication in the military record that a personal assault occurred, alternative evidence, such as behavior changes that occurred at the time of the incident, might still establish that an in-service stressor incident occurred. Examples of behavior changes that might indicate a stressor include: visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; lay statements indicating increased use or abuse of leave without apparent reason; changes in performance or performance evaluations; lay statements describing episodes of depression, panic attacks or anxiety with no identifiable reasons for the episodes; increased or decreased use of prescription medication; evidence of substance abuse; obsessive behavior such as overeating or under eating; pregnancy tests around the time of the incident; increased interest in tests for HIV or sexually transmitted diseases; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; breakup of a primary relationship. M21-1, Part III, 5.14c(7)(a)-(o). See also 38 C.F.R. § 3.304(f)(3); Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21 manual evidentiary procedures apply in PTSD personal assault cases). In or about 2002, the Veteran began to seek VA psychiatric treatment. VA treatment records dated in 2004 and thereafter reflect diagnoses of PTSD and depression. While the VA outpatient treatment records do generally contain indications that the Veteran has discussed her stressors incurred in service, such records also contain details pertaining to pre- service and post-service stressors and reported symptomatology. None of the VA outpatient examiners have specifically related her PTSD to specific stressors in service. Correspondence dated in October 2006, from a VA psychology postdoctoral fellow states that the Veteran has been seeking psychotherapy since September 2006, and is also involved in group psychotherapy for women with a history of sexual trauma. The examiner stated that the Veteran presents with symptoms of PTSD often observed in patients with a history of sexual trauma, including intrusive thoughts, nightmares, isolation, insomnia, and difficulty trusting and relating to others. She also presents with severe anxiety and panic attacks that impede her occupational and social functioning. She also displays symptoms of major depression including feelings of worthlessness, sadness, frequent tearlessness, chronic pain and lethargy. She has a history of military sexual trauma which precipitated symptoms of PTSD and an eating disorder. The symptoms with which the Veteran presents are secondary to incidences of sexual trauma that occurred while in active duty service. In June 2009, the Veteran underwent a VA examination, and the examiner noted review of the claims folder. Upon obtaining a history from the Veteran and conducting a mental status examination, the examiner stated that while her claimed stressors were deemed adequate, at this time she does not meet the DSM-IV criteria for PTSD. The examiner explained that her symptoms at this time are not sufficient for a diagnosis of PTSD, stating that the Veteran reports experiencing some PTSD symptoms on and off since childhood but based upon the record and the interview the symptoms have never been sufficient for a diagnosis of PTSD to best describe her distress and psychopathology. The examiner noted that the Veteran reports a history of multiple sexual traumas prior to and after service, and reported trauma in service. But the examiner stated that although the Veteran reported some symptoms of PTSD, they did not rise to the level required for a diagnosis and it would be difficult to determine whether the symptoms are related to her pre-service trauma in service, or to the multiple trauma since being discharged from service. Her behavior prior to service does not appear to differ significantly in any aspect from her behavior within the military or behavior after service. The examiner diagnosed adjustment disorder with mixed anxiety and depression, and personality disorder with borderline features. The examiner stated that the Veteran reported multiple sexual trauma from early childhood to the present, including those she reports from service. Although her reported stressors certainly meet the criteria, she does not meet the further diagnostic criteria for PTSD. The VA records do indicate several diagnoses of PTSD apparently based upon the stressors and some PTSD symptoms (i.e. nightmares of being raped, avoidance of cues) but no note provides a comprehensive evaluation of the Veteran's symptoms sufficient to support a diagnosis of PTSD. The Veteran does not currently or historically endorse having intrusive thoughts, acting or feeling as if events were recurring, physiological reactivity, efforts to avoid thoughts or feelings, inability to recall, markedly diminished interest, feeling of detachment, restricted affect, sense of foreshortened future, irritability, or exaggerated startle response. In light of such June 2009 opinion, the Board has determined that the preponderance of the evidence does not support a finding that the Veteran has PTSD due to stressors incurred during service. While acknowledging the diagnosis of PTSD reflected in the VA outpatient treatment records and the October 2006 VA correspondence, as the June 2009 VA examiner stated the PTSD diagnosis is not based on a comprehensive evaluation, to include a mental status examination. Thus, the Board does not find the PTSD diagnosis reflected in the VA outpatient treatment records to be probative evidence that the Veteran has PTSD due to stressors incurred in service. Acquired psychiatric disorder Per Clemons v. Shinseki, 23 Vet. App. 1, 4 (2009), the Board has also determined whether the Veteran is entitled to service connection for an acquired psychiatric disorder, other than PTSD. VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1132. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). The law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, the VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The Board must follow the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c). Also pertinent is the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004), issued on June 1, 2004, summarized the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the veteran is not entitled to service- connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. On the other hand, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. Wagner, 370 F. 3d at 1096. As detailed hereinabove, the June 2009 VA examiner diagnosed adjustment disorder with mixed depression and anxiety. The examiner stated that her behavior prior to service does not appear to differ significantly in any aspect from her behavior within the military or behavior after the military. The examiner stated that the Veteran does meet the criteria for adjustment disorder with anxiety and depression including the development within three months of stressor, of emotional or behavioral symptoms in response to identifiable stressors; the symptoms developed are clinically significant and they do result in significant social or occupational functioning. The examiner opined that her adjustment disorder, although existing prior to service, was permanently aggravated by her reported experiences in service. The Veteran's June 1978 entrance examination is negative for any notations regarding treatment for any psychiatric disorder, to include adjustment disorder. Specifically, the entrance examination reflected that the Veteran's psychiatric state was evaluated as clinically normal. Consequently, the Veteran is presumed to have entered service in sound condition as it pertains to her mental health. See 38 U.S.C.A. § 1132. The Board finds that the June 2009 VA examiner's opinion constitutes clear and convincing evidence that the Veteran's adjustment disorder pre-existed service. Based on the above medical opinions, the Board is unable to find that there is clear and unmistakable evidence that there was no increase in severity during service. Therefore, the second prong of the analysis outlined by VA's General Counsel in VAOPGCPREC 3-03 (July 16, 2003) has not been rebutted. Accordingly, since the Board finds that the Veteran's adjustment disorder pre-existed service, it follows that the Board must analytically view such disability as aggravated by service due to events which occurred in service. In other words, as a result of this analysis, the legal conclusion to be drawn is that the Veteran's adjustment disorder was incurred during her active duty service. Resolving all doubt in the Veteran's favor, the Board concludes that service connection is warranted for adjustment disorder with mixed anxiety and depression. Borderline personality disorder As noted, on examination in June 2009, the examiner diagnosed borderline personality disorder and opined that such disorder pre-existed service and was likely aggravated in service. 38 C.F.R. § 3.303(c). However, congenital or developmental defects such as personality disorders are not diseases or injuries for the purposes of service connection. 38 C.F.R. § 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Thus, service connection for borderline personality disorder is denied as a matter of law. ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with mixed anxiety and depression, is granted. Entitlement to service connection for borderline personality disorder is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs