Citation Nr: 1120722 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 09-44 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD) due to personal assault. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to October 1969. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied service connection for PTSD. The Board observes that the Veteran was previously denied service connection for schizoid personality by a 1974 rating decision, and for depression by a January 2005 rating decision. The Veteran's current March 2008 claim, September 2008 Notice of Disagreement, the transcript of a February 2010 hearing before a Decision Review Officer, and the transcript of a March 2011 hearing before the undersigned Veterans Law Judge, clearly show that he is specifically seeking service connection for PTSD. Where a prior claim for service connection has been denied, and a current claim contains a different diagnosis (even one producing the same symptoms in the same anatomic system), a new decision on the merits is required. See Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996); but see Ashford v. Brown, 10 Vet. App. 120, 123 (1997) (a new etiological theory does not constitute a new claim). See also Boggs v. Peake, No. 2007-7131 (Fed. Cir. Mar. 26, 2008) (to the effect that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury; and the two claims must be considered independently). Thus, in this case, the Board may address the Veteran's claim for service connection for PTSD on its merits. However, applications to reopen claims for service connection for schizoid personality and depression are not before VA at this time. FINDING OF FACT The evidence does not show that the Veteran engaged in combat or experienced a stressor during active duty. CONCLUSION OF LAW PTSD due to personal assault was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, VA is required 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. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. In correspondence dated in April 2008, VA informed the appellant of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence for a claim for service connection for PTSD. The correspondence also informed him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. The April 2008 VCAA notice letter did not provide information as to how to substantiate a claim for PTSD based on personal assault in service. However, the Board finds that the Veteran has not been prejudiced by this notice defect as the record establishes that he had actual notice in this regard. An October 2009 statement of the case provided the specific notice required for claims for service connection for PTSD based on in-service personal assault. 38 C.F.R. § 3.304(f)(3). The contentions set forth by the Veteran in his two hearings also make it clear that the Veteran had actual knowledge of why the claim for service connection for PTSD had been denied. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In addition, he has been represented by a service organization during the appeal. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. The Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although complete notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter in a supplemental statement of the case dated in March 2010, and the appellant therefore has not been prejudiced. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to Assist With regard to the duty to assist, the claim's file contains the appellant's service treatment records, service personnel records, VA and private medical records, records from the Social Security Administration (SSA), the transcript of a February 2010 hearing before a Decision Review Officer, the transcript of a March 2011 hearing before the undersigned Veterans Law Judge, and the appellant's statements in support of his claim. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. The appellant was afforded a VA examination in August 2008. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA report obtained in this case is more than adequate, as it is predicated on a reading of the Veteran's claims file and the results of the current examination. It considers all of the pertinent evidence of record, to include the statements of the Veteran. While an explicit rationale was not provided for the opinions offered, the opinions are clearly based on the Veteran's past medical history as provided by the claims file, and current psychiatric findings, all of which the examination report refers to in detail. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). In particular, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor(s) occurred; and (3) medical evidence establishing a link between the current diagnosis and the stressor(s) in service. 38 C.F.R. § 3.304(f). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). If PTSD 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. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may constitute credible evidence of the stressor. Such evidence includes, but is 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran contends that he now has PTSD as a result of two personal assaults during active duty. During his two personal hearings, he testified that he had been sexually assaulted twice but did not report them. He also stated that while on active duty he was constantly bullied, physically slapped, and mistreated by his fellow servicemen. He said that the attacks occurred prior to his September 1969 inservice psychiatric consultation. He stated that during the consultation, he reported being homosexual because he wanted out of the Navy. The Veteran's service treatment records are negative for any complaints, symptoms, findings or diagnoses related to personal assault. The report of a September 1969 psychiatric consultation provides that the Veteran had been seen four days earlier "because of homosexual problems." He was evaluated after ingesting several Librium capsules in an attempt "to end it all." On examination, the Veteran was moderately anxious and his thought processes were logical and coherent. There was no evidence of neurosis, psychosis or organic brain pathology. The Veteran stated that he could not take Navy life any longer. He explained that his life had been threatened on several occasions but he had been too intimated to report the incidents. The examiner noted that the Veteran was poorly motivated for further Naval duty and because of his basic personality disorder he would probably resort to immature, impulsive, inappropriate ways of dealing with frustrations that he experienced. The examiner reviewed the Veteran's past history, and noted that it came from the Veteran and his health records and seemed essentially reliable. The examiner noted that the Veteran had engaged in homosexual activity about two months earlier, but that this was a reflection of his underlying personality disorder and search for identity rather than a manifestation of a true homosexual disorder. The diagnosis was schizoid personality, EPTE. The examiner strongly recommended that the Veteran be discharged administratively using this diagnosis. The report of the Veteran's October 1969 separation medical examination provides that he was normal on clinical evaluation and provides no pertinent defects or diagnoses. The Veteran's service personnel records reflect that in September 1968 he needed routine supervision. In September 1969, he was described as a poor worker who daydreamed constantly and must be closely supervised. He was noted to be intelligent but did not want to work, and did not appear to be adapting to Navy life at all. He was immature and unable to handle event the smallest of problems. Overall, these service personnel records do not reflect deterioration in work performance so as to corroborate his claimed stressors. A January 1973 VA inpatient discharge summary provides a diagnosis of hysterical personality. The Veteran sought treatment after becoming depressed following an argument with his best friend's fiancée. An August 2004 private report provides that during the period from January to May 1995, the Veteran was strongly engaged in treatment for issues including exploration of reported history as a child of extensive abuse. A January 2002 SSA decision provides that the Veteran was disabled as of August 2001. The primary diagnosis was schizoaffective disorder, depressed type, and the secondary diagnosis was essential hypertension. The accompanying psychiatric records include a September 2001 private inpatient discharge summary, an October 2001 private psychiatric evaluation, October 2001 private emergency room records, and a December 2001 psychiatric evaluation report. These records reflect that the Veteran did not report any inservice personal assaults. A July 2004 VA outpatient treatment report reflects that the Veteran received individual therapy for depression and PTSD. A May 2007 VA outpatient treatment report notes that the Veteran spoke of the abuse and rape the Veteran suffered while on active duty in the Navy. The pertinent assessment was sexual abuse of patient as an adult. December 2007 and February 2008 VA outpatient treatment reports provide that the Veteran had major depressive disorder, recurrent, with associated sexual issues as manifested by, inter alia, sexual abuse as an adult while on military duty in Navy aboard a ship. A March 2008 VA treatment record reflects that the Veteran was given a pertinent assessment of major depressive disorder, recurrent; sexual abuse of patient as an adult; physical abuse of patient as a child; transvestistic fetishism/cross dressing; gender identity disorder; borderline personality disorder; and PTSD from sexual assault in the Navy. The report of an August 2008 VA examination provides that the examiner reviewed the Veteran's claims file, and sets forth the relevant history, the Veteran's subjective complaints, and examination results. The opinion request noted that the Veteran reported being beaten up and pushed around while on active duty, and that an outpatient treatment report provided a diagnosis of chronic PTSD from childhood abuse. The report provides an Axis I diagnosis of major depression with history of self-destructive behavior. The examiner stated that this was at least as likely as not related to personal trauma in childhood. It was not permanently worsened by service beyond its natural progression. A September 2009 VA treatment record reflects that the Veteran was given pertinent assessments of major depressive disorder, recurrent; sexual abuse of patient as an adult; physical abuse of patient as a child and adult; borderline personality disorder; and PTSD from sexual assault in the Navy. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for PTSD due to personal assault. Even when a claimant seeking service connection for PTSD has an unequivocal diagnosis of PTSD, service connection for PTSD requires a confirmed military service stressor, unless the claimed stressor is related to combat and the evidence establishes that the Veteran engaged in combat with the enemy. In this case, the Veteran does not claim that his stressors are related to combat. When the claimed stressor is not related to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The record must contain corroborative evidence that substantiates or verifies the Veteran's testimony or statements as to the occurrence of the claimed stressor. West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). There is no evidence in the case before the Board to confirm the Veteran's alleged in-service personal assaults. The March 2008 and September 2009 VA outpatient medical diagnoses of PTSD, linked to the Veteran's claimed stressors, do not corroborate that the stressors occurred. The diagnoses are based solely on the Veteran's unsubstantiated assertions regarding what occurred in service. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). The Board has carefully reviewed the Veteran's service treatment and personnel records. The Board finds that they are negative for any evidence, such as physical injuries or behavior changes, that substantiate the claimed assaults. Although it was reported in September 1969 that the Veteran had engaged in homosexual activity, the Veteran did not allege having been a victim of personal assault at that time. Also, the examining physician specifically opined that the Veteran's engagement in homosexual activity was a search for identity. Such contemporaneous to service clinical opinion is inconsistent with an allegation of personal assault in service. The Board is not bound to accept the Veteran's uncorroborated account of his experiences. Wood v. Derwinski, 1 Vet. App. 190 (1992); Swann, supra. The question of whether a specific event reported by a Veteran as a stressor actually occurred is a question of fact for the Board to decide, involving, as it does, factors as much historical as psychological. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this regard, the Board finds it significant that the service, and VA and private, medical records show that even while seeking psychiatric treatment, the Veteran never reported the claimed in-service assaults until many years after his separation. In the absence of a showing of combat with the enemy or evidence of a verifiable stressor, the Board concludes that the Veteran has failed to satisfy the criteria for service connection for PTSD. As the Veteran bases his claim on the reported stressors, service connection cannot be granted without verification of them, regardless of current diagnosis of PTSD. The Board recognizes that during the appeal period the Veteran has also received other psychiatric diagnoses, including major depressive disorder. As noted above, however, the Veteran was previously denied service connection for depression. Thus, in order for VA to address service connection for major depressive disorder on its merits the Veteran must submit new and material evidence to reopen that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Board does not find that such claim has been raised so as to be inextricably intertwined with the appeal before the Board at this time. In sum, the medical evidence demonstrates that the Veteran is not entitled to service connection for PTSD due to personal assault. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for PTSD due to personal assault is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs