Citation Nr: 1114294 Decision Date: 04/12/11 Archive Date: 04/21/11 DOCKET NO. 06-26 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for posttraumatic stress disorder ("PTSD"), to include as a result of a personal assault. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to August 1983. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a September 2004 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Honolulu, Hawaii, which denied the Veteran's claim of entitlement to service connection for PTSD, claimed as a result of an in-service personal assault. In January 2010, the Board remanded the Veteran's claim for further development, specifically to afford him the opportunity for a Travel Board hearing at the Honolulu RO. In August 2008, the Veteran contacted the RO and advised it that he would not be able to attend the hearing because he was moving out of state. However, after subsequently advising the RO that he was moving back to Hawaii, he was scheduled for a video conference hearing. In July 2010, he appeared before the undersigned Acting Veterans Law Judge sitting in Washington, DC. A transcript of the hearing has been associated with the Veteran's claims folder. FINDINGS OF FACT 1. The Veteran sustained an in-service personal assault by two individuals on December 8, 1982, where he suffered contusions to the face and a broken tooth. 2. The overwhelming weight of the medical evidence demonstrates that the Veteran has a diagnosis of PTSD that has been medically attributed to the in-service attack on December 8, 1982. CONCLUSION OF LAW The criteria for service connection for PTSD as the result of an in-service personal assault have been met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.304(f)(5) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the Veteran with his claim. In the instant case, the Board has rendered a decision in favor of the Veteran, finding that service connection for PTSD is warranted, and therefore, a further discussion of the VCAA duties is unnecessary at this time. II. Law & Regulations In order to establish service connection, a claimant must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To establish service connection for PTSD, a claimant must provide (1) medical evidence establishing a diagnosis of the disability, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2010). See also Cohen v. Brown, 10 Vet. App. 128 (1997). If a PTSD claim is based on an in-service personal assault, as here, evidence from sources other than the claimant's service records may corroborate his or her account of the stressor incident. 38 C.F.R. § 3.304(f)(5) (2010). Examples of such evidence include, but are not limited to the following: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians, 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 the following: 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. 38 C.F.R. § 3.304(f)(5); see Patton v. West, 12 Vet. App. 272 (1999) (holding that special VA Adjudication Procedure Manual evidentiary procedures apply in PTSD personal assault cases). 38 C.F.R. § 3.304(f)(5) further provides that VA may submit any such evidence as is described under that provision to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. In essence, unlike claims for PTSD that do not involve an assertion of personal or sexual assault, VA can take into account the opinion of a medical professional as to the likelihood that the stressor actually occurred, rather than just relying on such a professional to determine whether or not a stressor supports a diagnosis of PTSD. VA will not deny a PTSD claim that is based on an in-service personal assault without first advising the claimant that evidence from sources other than the appellant'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. See 67 Fed. Reg. 10330-10332 (March 7, 2002). III. Analysis The Veteran maintains that he currently suffers from PTSD as a result of a personal assault during service. Specifically, he asserts that, on December 8, 1982, while serving on active duty in Berlin, Germany, he was physically assaulted by two German Nationals, resulting in severe lacerations about his face and chin. He avers that, immediately following this incident, he began to heavily abuse alcohol, which ultimately resulted in the end of a promising military career. See Hearing Transcript at 3. On his May 1980 Report of Medical History for Enlistment, the Veteran indicated that he was in good health, and that he did not experience frequent trouble sleeping, depression or excessive worry. Review of the Veteran's service treatment and personnel reports reveals that, on December 8, 1982, he received medical treatment for lacerations to his face, noted to be the result of his involvement in a fight. Dental records dated December 8, 1982, also note that the Veteran sustained a broken tooth. Neither of these medical records bears any indication that the Veteran was under the influence of alcohol on that date. The Veteran's service records reflect a stark change in behavior in the weeks and months following the attack. See 38 C.F.R. § 3.304(f)(5). Ten days after the attack, on December 18, 1982, the Veteran was involved in a physical altercation with a fellow serviceman in his unit. According to a contemporaneous sworn statement, he said that he had overreacted to "horseplay" from one of his close friends, resulting in "a frenzy of punches and kicks" to the individual. This incident resulted in the Veteran receiving an "Article 15" (a non-judicial punishment) for breach of the peace by wrongfully engaging in a fight. Five months later, in May 1983, he was again involved in a physical altercation, in which several persons were injured. It was noted on this medical treatment record, that the Veteran emitted a strong smell of alcohol at that time. June 1983 medical records further note that the Veteran's consumption of alcohol had progressively increased, and also document that the Veteran was now experiencing nervousness, situational anxiety, poor sleep, and depression symptoms, although the Veteran at that time related his difficulty sleeping and anxiety to his alcohol abuse and/or withdrawal. That same month, he was admitted to the U.S. Army Hospital Berlin Residential Treatment Facility for treatment of alcohol abuse. However, because it was later determined that the Veteran did not successfully complete this program he received a general discharge from service under honorable conditions. On his June 1983 Report of Medical History for Discharge, the Veteran indicated that he now experienced frequent trouble sleeping, as well as depression and excessive worry. Post-service treatment records reveal that the Veteran continued to abuse alcohol and eventually sought medical substance abuse treatment, as well as non-medical treatment by joining Alcoholics Anonymous. He has reported that he has been alcohol-free since 1988. Medical records reflect that the Veteran received a diagnosis of PTSD in August 2000. Additional post-service treatment records show that, in January 2002, the Veteran was evaluated by K.R.O., a licensed private psychologist, who diagnosed him with acute and chronic PTSD resulting from traumatic attack by the two Germans that he experienced during service. In May 2004, the Veteran was afforded a VA PTSD evaluation pursuant to his service connection claim. The examiner noted that he reported many symptoms suggestive of PTSD, including flashbacks, intrusive thoughts, disturbing dreams with severe sleep disturbance, avoidance, hypervigilance, moderate to severe depression and exaggerated reactions to perceived threats. The Veteran said that, although he had experienced a number of legal problems related to his use of alcohol during his teenage years (he reported that he began drinking at age 14), immediately following the in-service assault on December 8, 1982, he began to severely abuse alcohol in order to help him sleep and block out the memories of the attack. Based on his review of the complete claims folders, as well as his evaluation of the Veteran, the VA examiner diagnosed the Veteran with PTSD, chronic; major depression, recurrent, secondary to PTSD; and alcohol dependence in full and sustained remission. He concluded that the Veteran's PTSD was related to his in-service attack stressor, which he found was medically-sufficient to induce PTSD. Also of record is a July 2005 letter from one of the Veteran's private treating psychologists, Dr. A.K. Dr. A.K. stated that he had been treating the Veteran since April 2003 and concluded that he met the criteria for PTSD related to the December 1982 in-service assault. He noted that, although the Veteran had had a long history of alcohol dependence, the problem was in fact exacerbated by the 1982 attack. He added that the Veteran's description of the subsequent December 18, 1982 assault on a fellow soldier was consistent with one who "blacks out" after a trauma trigger and loses control of his behavior. Recent treatment reports from the VA Medical Center ("VAMC") in Honolulu, dated through October 2008, reveal that the Veteran was continuing to receive individual, as well as group therapy. During an October 2008 individual mental health consultation with the VA Trauma Stress Recovery Program ("TSRP"), the Veteran was diagnosed with non-combat-related PTSD and depression. The record also reflects that a single TSRP psychologist, on October 10, 2008, offered her view that a diagnosis of PTSD could not be supported. Rather, she stated that the Veteran was seen as most likely having an Axis II disorder (personality disorders and mental retardation according to the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) ("DSM-IV")) despite his experience of being in a potentially life-threatening fight. Moreover, she concluded that his Axis I (clinical disorders) diagnosis was predominantly an alcohol abuse/dependence disorder in remission. Although she referred the Veteran back to the mental health clinic for follow-up treatment, there is no evidence that he actually returned for additional therapy. A September 2009 note in the VAMC treatment records indicates that the Veteran did not show up for a scheduled appointment. Having reviewed the complete record, the Board finds that the evidence weighs in favor of the claim. Throughout the duration of this appeal, the Veteran has consistently and credibly conveyed his account that he sustained an unprovoked attack by two individuals on December 8, 1982 while on his way to dinner when he was stationed in Berlin. See July 2010 hearing Transcript at 7; July 2006 Substantive Appeal; July 2005 Statement; September 2005 Statement; February 2004 Statement; March 2003 Statement. The Veteran's service treatment records also corroborate his account, as they document that he received medical care for facial lacerations and a broken tooth on December 8, 1982. The Board also notes that while the Veteran, by his own admission, may have consumed alcohol socially during service prior to the attack, see Hearing Transcript at 11-12, there is no indication that the attack on him was in any manner related to any consumption (let alone "abuse") of alcohol on that evening. See Hearing Transcript at 7; see also 38 C.F.R. § 3.301(a), (c)(2), (d) ("The simple drinking of alcoholic beverage is not of itself willful misconduct"). Moreover, the Veteran has testified, and the Board finds such testimony entirely credible, that he began to abuse alcohol after the attack as a method of coping with that traumatic event. See Hearing Transcript at 3, 7. The service treatment records, which document his increased use of alcohol as well as symptoms of anxiety and difficulty sleeping after the December 8, 1982 attack, further bolster his credible account. Finally, as noted above, the medical evidence of record reflects a diagnosis of PTSD as well as a causal link between the Veteran's PTSD and his in-service personal assault. In particular, VA examiners and the Veteran's private treating psychologist, Dr. A.K., alike have determined that the Veteran not only met the DSM-IV criteria for a diagnosis of PTSD, but also that it was the result of his in-service assault. The totality of this evidence preponderates heavily in favor of the claim. Although the Board recognizes that a lone VA clinician, on October 10, 2008, opined that the Veteran's PTSD diagnosis could not be supported, which could weigh against the claim, the Board affords this single notation less probative weight than the voluminous and overwhelming medical evidence to the contrary. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight to be attached to these opinions are within the province of the adjudicator). Specifically, the medical record reflects that the Veteran has received a PTSD diagnosis from private and VA clinicians alike, on no less than 16 occasions, spanning 2000 to 2008. The Board therefore concludes that this single notation is not sufficient to overcome the other positive evidence of record that weighs in favor of the Veteran's claim. Accordingly, service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. ____________________________________________ B. MORTON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs