Citation Nr: 1125316 Decision Date: 07/05/11 Archive Date: 07/14/11 DOCKET NO. 06-37 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1978 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In July 2009, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development, and it now returns to the Board for appellate review. On an October 2008 VA Form 9, the Veteran requested a personal hearing before a Veterans Law Judge, sitting in Washington, DC. The hearing was scheduled for May 2009, and the Veteran failed to report. No further communication with respect to a hearing has been received from the Veteran and without a showing of good cause for her failure to attend the hearing, VA is not obligated to make further effort to afford her one. Thus, the Board considers the Veteran's request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2010). FINDINGS OF FACT 1. The Veteran is presumed sound upon service entrance, and there is not clear and unmistakable that the currently diagnosed acquired psychiatric disorder preexisted service. 2. Resolving all reasonable doubt in the Veteran's favor, she has a verified in-service stressor. 3. PTSD is etiologically related to a verified in-service stressor. CONCLUSION OF LAW PTSD was incurred during the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2010), 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision herein to grant service connection for PTSD is a full grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)) and the implementing regulations. Additionally, the Board observes that the grant of the claim renders moot lack of compliance, if any exists, with the Board's orders in the July 2009 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). 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). A finding of direct service connection requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under section 3.303(b), an alternative method of establishing the second and/or third Caluza element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage, 10 Vet. App. at 495-96; Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). Service connection for PTSD requires medical evidence of a current diagnosis of PTSD, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link between the current diagnosis and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). If a PTSD claim is based on an in-service personal trauma, evidence from sources other than the Veteran's service records may corroborate an account of a stressor incident. Examples of such evidence include 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 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)(4). Once independent verification of the stressor event has been submitted, the Veteran's personal exposure to the event may be implied by the evidence of record. A veteran need not substantiate his actual presence during the stressor event; the fact that the Veteran was assigned to and stationed with a unit that was present while such an event occurred strongly suggests that he was, in fact, exposed to the stressor event. See Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). In evaluating a claim for aggravation of a preexisting disorder during service, the Board must first determine that the disorder preexisted service. When no preexisting disorder is noted upon entry into service, the Veteran is presumed to have been sound upon entry and the presumption of soundness arises. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, if a preexisting disorder is noted upon entry into service, the Veteran cannot claim service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The pertinent VA regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). If a veteran is found to have had a preexisting disability and there is an increase in that disability during service, 38 U.S.C.A. § 1153 provides that a preexisting injury or disease will be presumed to have been aggravated during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. However, aggravation will not be conceded where there was no increase in severity of the disability during service, based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. The Veteran has the responsibility to establish an increase in severity. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Such increase must be shown through independent medical evidence. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). If there is no evidence of injury, complaints, or treatment of the preexisting disability in service, an increase in severity has not been shown. However, should such increase be established, aggravation is presumed to be the result of service, unless rebutted by clear and unmistakable evidence. 38 U.S.C.A. § 1111; Wagner; see also VAOPGCPREC 3-03 (July 16, 2003); 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). A claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the rebuttal standard attaches. Cotant v. Principi, 17 Vet. App. 116 (2003); see also VAOPGCPREC 3-03 (July 16, 2003). Any increase in severity must also be permanent. Recurrence or temporary flare-ups of symptoms do not constitute an increase in severity. Davis v. Principi, 273 F.3d 1341, 1345 (Fed. Cir. 2002); see Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The Board observes that at her March 1978 enlistment examination, the Veteran denied any significant injury, illness, or hospitalization. The clinical examination conducted at that time was normal. Therefore, the Veteran is presumed to have been in sound condition upon entry into service. 38 U.S.C.A. § 1111; Wagner. The Board observes that clear and unmistakable evidence that a disability preexisted service and was not aggravated by service can rebut this presumption. However, there is no such evidence in this case. The July 2008 VA examination report discusses psychiatric symptoms and a stressor of child physical and sexual abuse that purportedly preexisted service; however, there are no treatment records dated prior to service of record. The first reference to these purported preexisting symptoms and stressor are service treatment records dated in 1988, which refer to a diagnosis of dependent personality disorder and adjustment disorder; however, neither diagnosis is stated to have been present at service or to be due to the documented pre-service symptoms and stressors. The Veteran's post-service treatment records do not reflect treatment related to symptoms and stressors that pre-dated service. Absent documentation of an actual preexisting diagnosis of an acquired psychiatric disorder, including PTSD, the Board concludes that the VA examiner's acknowledgement of possible preexisting psychiatric symptoms and stressor is insufficient alone to constitute clear and unmistakable evidence that such disability was present at enlistment. Further, as there is not clear and unmistakable evidence that the Veteran had a preexisting acquired psychiatric disorder, discussion of whether any such disability was aggravated by service is not necessary. The Board notes that VA and Vet Center treatment records reflect that the Veteran is currently treated for PTSD with notation that she has been treated for the disorder since approximately 1998. Thus, the claim rests on whether the currently diagnosed PTSD is causally or etiologically related to the Veteran's military service, including her claimed in-service personal assault. The Board observes that the Veteran's service treatment records show that she was treated for dependent personality disorder and adjustment disorder, but they do not refer to a personal assault or PTSD. Nevertheless, the Board observes that the VA examining psychiatrist in his November 2007 and April 2008 VA examination reports found credible the Veteran's description of her personal assault and related her current PTSD to that assault. Moreover, the Veteran's treating psychologist at the Vet Center provided treatment notes, including a lengthy July 2005 psychological assessment, in which she concluded that the Veteran has PTSD that is associated with the reported in-service events. The Board acknowledges that the VA examiner did not review the claims file in conjunction with either the November 2007 or April 2008 VA examination report and that his review of the claims file caused him to reverse his opinion on the basis that the Veteran's service treatment records did not reference the personal assault or PTSD. Moreover, he cited the fact that she requested birth control pills as an indication that she was engaging in sexual activity, which would not support her contentions of sexual assault. However, the Board observes that the Veteran's Vet Center psychologist, in an October 2008 letter, refuted the VA examiner's opinion, stating that the Veteran wanted birth control because she was afraid of being assaulted again and that this reaction was reasonable and that such fear was a core symptom of PTSD. The Board finds no basis upon which to conclude that one of the above assertions is more likely than the other. Therefore, the Board determines that the opinions of the VA psychiatrist and psychologist coupled with the fact that the Veteran received psychiatric treatment in service provide sufficient support for the Veteran's contentions for the Board to conclude that the Veteran's stressor at least as likely as not occurred in service. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In light of the above analysis, the Board concludes that the Veteran has a current diagnosis of PTSD that is causally and etiologically related to a verified in-service stressor. The criteria for a claim of entitlement to service connection for PTSD have therefore been met in this case, and the claim is granted. ORDER Service connection for PTSD is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs