Citation Nr: 1122591 Decision Date: 06/10/11 Archive Date: 06/20/11 DOCKET NO. 10-15 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from August 1995 to May 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied the benefits sought on appeal. A hearing was held on January 12, 2011, in Wichita, Kansas, before the undersigned Acting Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. There is medical and lay evidence of record establishing a diagnosis of PTSD, credible supporting evidence that a claimed in-service sexual assault occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). However, in the decision below, the Board has granted the Veteran's claim for service connection for PTSD, and therefore, the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. II. Law and 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, 1131. 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). Service connection for PTSD requires a medical diagnosis of the disorder, credible supporting evidence of the claimed in- service stressor actually occurred, and a link, as established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy" as established by official records, including recognized military combat citations or other supportive evidence. If VA determines that the veteran engaged in combat with the enemy and the alleged stressor is combat 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, VA determines that the veteran did not engage in combat with the enemy, or that the veteran engaged in combat with the enemy but the alleged stressor is not combat-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). Effective July 13, 2010, VA amended the regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, 38 C.F.R. § 3.304(f) was amended to redesignate former paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 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)(4) (2010). In Patton v. West, 12 Vet. App. 272 (1999), the United States Court of Appeals for Veterans Claims (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)(4) 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." In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for PTSD. She has asserted that she was raped during her military service and that she developed PTSD as a result of her in-service sexual assault. In a February 2010 statement of the case (SOC), the RO conceded that an in-service assault or rape likely occurred. In so doing, it was noted that the Veteran's service treatment and personnel records had shown that she was considered a good soldier in an October 1996 performance appraisal, but later received an Article 15 for disrespect toward a noncommissioned officer in April 1998. The RO also noted that the Veteran had sought private treatment in November 2006 during which time she discussed memories of a rape in service, which would have been several months before she requested service connection. The RO also found it noteworthy that the claim for service connection was raised by VA personnel and not by the Veteran herself. The Board further notes that the Veteran's mother had written a letter in March 1998 in which she expressed concern for the Veteran's physical and mental well-being. A chaplain also submitted a letter of support for a hardship discharge that same month. He had had indicated that the Veteran did not feel that she could fulfill her duties as a soldier and a mother. In addition, the Board finds that the Veteran's statements, including her testimony and private treatment reports, have been consistent and credible throughout the pendency of the appeal. Therefore, the Board concludes that there is evidence, including behavior changes, verifying the Veteran's reported assault in service. In addition, the evidence of record shows that the Veteran has a current diagnosis of PTSD related to the in-service assault. Although the Veteran failed to appear for a VA examination, there are private treatment records to support her claim, including a March 2003 intake evaluation, private treatment records dated from May 2006 to June 2009, and a transcript from an April 2008 private therapy session. Throughout her private treatment, she described her in-service sexual assault and related her current symptoms to that stressor. The Board notes that the Veteran has been repeatedly diagnosed with PTSD. Moreover, private treatment records dated in November 2006 noted that rape had been discussed in her women's study class, which raised memories and feelings related to her own rape when she was in service. She was diagnosed with PTSD at that time. The Veteran was also seen in February 2007 at which time she indicated that she was still struggling with her rape in service. The assessment was PTSD. In February 2009, it was noted that the Veteran was suicidal and that the precipitating factor was a posttraumatic reaction to information from her women's studies class. She reported at that time that she had been sexually assaulted while in the military. In March 2009, the Veteran's private therapist indicated that they talked at length about her appeal to VA and her fears. The therapist stated that she "validated that she [the Veteran] deserved to have her PTSD service connected." Based on a review of the private medical records, it does appear that the Veteran's diagnosis of PTSD was based on the in-service stressor of sexual assault. The Board also finds it significant that the Veteran's private treatment providers have never identified any other stressor. Thus, in light of the verified stressor, the Veteran's current diagnosis, and the private medical records, there is a reasonable doubt as to whether the Veteran currently has PTSD that is related to her in-service stressor. To the extent that there is any reasonable doubt, that doubt will be resolved in her favor. Based on the evidence of record, the Board finds that the Veteran's current PTSD was incurred in service. Accordingly, the Board concludes that service connection for PTSD is warranted. ORDER Subject to the provision governing the award of monetary benefits, service connection for PTSD is granted. ____________________________________________ JESSICA J. WILLS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs