Citation Nr: 1126475 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 09-05 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depressive disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from May 1958 to December 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November and December 2008 rating decisions rendered by the Portland, Oregon, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's claim for entitlement to service connection for PTSD. The Veteran testified during a hearing before the undersigned Veterans Law Judge in March 2011; a transcript of that hearing is of record. During that month, the Veteran submitted to the Board additional evidence for consideration in connection with the claim on appeal along with a waiver of RO jurisdiction of such evidence. The Board accepts this evidence for inclusion in the record on appeal. 38 C.F.R. § 20.1304 (2010). As noted on the title page, the Board has recharacterized the issue as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depressive disorder. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). FINDINGS OF FACT 1. The Veteran has been diagnosed with PTSD as the result of a military sexual trauma during her active duty service. 2. There is credible supporting evidence of record to support her claimed in-service stressor. CONCLUSION OF LAW Resolving doubt in the Veteran's favor, PTSD was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Regarding the claim of entitlement to service connection for PTSD, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Laws and Regulations Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). 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 treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2010). For certain chronic disorders, to include psychosis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of 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. 38 C.F.R. § 3.304(f) (2010). The law provides that "[i]f 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." 38 C.F.R. § 3.304(f)(2) (2010). Where, however, VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is unrelated to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the reported stressor. Instead, the record must contain evidence that corroborates the veteran's testimony as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d),(f); West v. Brown, 7 Vet. App. 70, 76 (1994). Further, there are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(4), provides that PTSD based on a personal assault in service permits evidence from sources other than the veteran's service records which may corroborate his or her 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 family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(4) (2010). The M21-1MR also 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. M21-1MR, Part IV, Subpart ii, 1.D.17.g. 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. 38 C.F.R. § 3.304(f)(4) (2010). 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. In addition, 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). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2010). Factual Background and Analysis As an initial matter, the Board notes that the evidence does not show, nor does the Veteran report, that she engaged in combat with the enemy. According to her Form DD-214, she was not awarded any combat medals or decorations. In addition, her military occupation specialty (MOS) was listed as Clerk Typist, and available service treatment and personnel records do not contain any reports of combat incidents in service. For these reasons, the Board finds that the Veteran did not engage in combat with the enemy within the meaning of 38 U.S.C.A. § 1154(b). Gaines v. West, 11 Vet. App. 353, 359 (1998). Accordingly, her statements and testimony concerning the reported stressors may not be accepted, standing alone, as sufficient proof of their occurrence. Therefore, independent evidence is necessary to corroborate her statement as to the occurrence of the claimed stressors. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The Veteran's claim of service connection for PTSD is based on her allegations of a sexual assault in service. During active service, she contends she was sexually assaulted one evening by a group of men. VA has defined personal assault very broadly to include an event of human design that threatens or inflicts harm. Examples of personal assault include rape, physical assault, domestic battery, robbery, mugging, stalking, and harassment. See VA Adjudication Procedure Manual M21-1MR, Part III, Subpart iv., Ch. 4, Section H, part 30(a) (Aug. 1, 2006); VA Adjudication Procedure Manual M21-1MR, Part IV, Subpart ii., Ch. 1, Section D, part 17(a), (c) (Dec. 13, 2005). As the Veteran has clearly claimed that she was sexually assaulted in service, as detailed above, the Board will consider the provisions of 38 C.F.R. § 3.304(f)(4), which provides that PTSD based on a personal assault in service permits evidence from sources other than a veteran's service records to corroborate his or her account of the stressor incident. In response to the requests for the Veteran's service records in 2008, the National Personnel Records Center (NPRC) indicated that these records were "fire related," meaning that they were most likely destroyed in a fire that occurred at the NPRC in St. Louis, Missouri, in July 1973. Copies of all available original service documents were associated with the record. The Board notes that when service treatment records are lost or missing, VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Thus, because the Veteran's service records are damaged, VA has a heightened duty to assist the Veteran in the present case. A May 1958 Recruiting Officer's Indorsement noted that the Veteran appeared to be a well adjusted individual of normal ability who should do well in either of her requested schools. In her May 1958 service enlistment examination report, the Veteran was marked as abnormal on psychiatric clinical evaluation. The examiner noted that she seemed to be somewhat inappropriate with answers and actions, non-disabling (ND). A June 1958 disposition form detailed that the Veteran had been seen in sick call often during her first weeks of training with no indicated medical disability as well as rated in the bottom half of her platoon during the third week of training, with reprimands about her personal appearance/area and comments, including "boy crazy, lazy, could try harder, could take more pride in work, doesn't cooperate". The Veteran was noted be inattentive, drowsy during class, conflicted, and very nervous. It was indicated that her present wish was to see the psychiatrist for help. In a July 1958 psychiatric evaluation, the Veteran described a childhood that included living in an orphanage, family hostility and rejection, sibling rivalry, truancy, a very limited social life, and considerable involvement in religious activities. She reported that her sister had been treated for a nervous disturbance in the past, that she feared going insane, and that her present life in service conflicted with her religious views. Mental status evaluation was noted to reveal a mildly depressed, confused, and rejected individual. The examiner indicated that the Veteran was a very immature, inadequate, functioning female that was in need of considerable direction and understanding to understand deep conflicts which confront her, especially sex identification and guilt about past wild associations. Service health records dated from July 1958 to September 1958 showed that the Veteran continued to be seen for mental health treatment. In August 1958, she was noted to be withdrawn, quiet, and shy, with complaints of a phobia of going crazy as well as memory loss. She described her desire to wander, drink, and dull her tension in September 1958. The examiner indicated that she was definitely depressed. In an affidavit, the Veteran's Sergeant and Captain described their observed gradual decline in the Veteran's personal appearance, ill advised choice of friends, and inability to understand the importance of cleanliness. In a certificate, the Executive Officer of the Veteran's company discussed her stay at the Clerical Training Company, noting that she was a constant attention seeker, was always complaining, and had received numerous demerits. The officer indicated that the Veteran had come to see her, claiming not to remember any conversation with her Captain or to understand what she had done to warrant board action. It was detailed that after her first board was withdrawn and she was made available for assignment, she almost immediately left post while restricted without a pass, came in late for bed check, was involved with an automobile accident, and later went AWOL in October. In November 1958, the Veteran was noted to show a willingness to work but display a bitter and vulgar attitude as well as an inability to maintain upkeep of her area. In a statement, the Chief of the Mental Health Clinic listed a diagnosis of severe and longstanding schizoid personality ETPS (existed prior to service), manifested by seclusiveness, withdrawal, unwillingness to trust people or to make friends with people, anxiety, and tendency to nomadic experience. In a November 1958 Report of Proceedings by Board of Officers, the Veteran was found to be unsuitable for further military service and it was recommended that she be furnished a General Discharge. In her service discharge examination report, the Veteran was marked as abnormal on psychiatric clinical evaluation. The examiner noted that she suffered from severe, schizoid personality. The Board is cognizant that service personnel or service treatment records do not provide direct confirmation of the Veteran's alleged stressors. In an October 2008 memorandum, the RO made a formal finding that there was a lack of information in the record required to corroborate stressors associated with the Veteran's claim for service connection for PTSD. However, the Veteran submitted several statements and hearing testimony regarding the nature of the sexual assault in service in 1958. In a November 2008 written statement of record, she reported that the incident occurred in the late summer of 1958 at Fort McClellan, Alabama. It was noted that she received her first duty station orders and went out to a beer garden on base to celebrate her completion of training. When a fight broke out in the beer garden, she ran from the establishment by herself back toward the barracks when she ran into a group of four to five males. After pulling her into some bushes off the path back to the barracks, she indicated that they took turns raping her. After they let her go, she returned to her barracks, scrubbed herself in the shower, and went to bed. She stated that she did not recognize any of her assailants and never told anyone of the incident because she was afraid. After the incident, the Veteran commented that she became quiet, afraid to draw attention to herself, withdrew, and had a lot of memory loss during that time period. She indicated that she remembered receiving mental health counseling at some point and was told she was going to be discharged from the military, receiving a General Discharge under honorable conditions within a couple weeks of the alleged incident. She further reported that her life after service had been affected by the incident with problems in both of her marital relationships and with fear and anger. She also submitted a lay statement from her sister dated in January 2010. Her sister indicated that the Veteran was very changed after she returned from service, noting that she was unable to relax, very anxious, and somehow diminished. She commented that after she was informed of the Veteran's prior rape her behavior finally made sense. During her March 2011 hearing, the Veteran recounted that three to four men cornered and raped her as she was coming back to her barracks alone after a night out on base. She indicated that it was like a curtain dropped after the incident and that she had mental health issues afterward, seeing a psychiatrist once during service but did not discuss the assault with him. She further detailed psychiatric treatment after service in the 1960s and 1970s, being prescribed sedatives by one physician and being put in a psych ward after a suicide attempt. It was indicated that after she told her husband about her in-service sexual assault, he told her to just deal with it, that he did not want to talk about it, and forbade her to tell anyone that she was ever in service. She stated that she was afraid to talk about the incident and was already of a shy disposition anyway. The first time she told anyone was during treatment at Roseburg VAMC and that she did not even know she qualified for VA treatment until seven or eight years ago. In rendering a decision on appeal, however, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Here, the Veteran consistently reported a history of sexual trauma occurring in service in 1958. She has supplied comprehensive written statements and hearing testimony that described in detail her in-service stressor as well as a statement from her sister that corroborated her change in demeanor after returning from service. Service treatment records also showed complaints of memory loss, a symptom the Veteran has continually asserted occurred after she was assaulted. In addition, as noted above, the Veteran's VA treatment records indicated that she has been variously diagnosed as having PTSD and depression. In adjudicating the Veteran's claim, the Board has considered the possibility of service connection for the other acquired psychiatric disorders. Beginning in 2007 to the present, the Veteran was diagnosed with depressive disorder NOS (not otherwise specified), major depressive disorder, generalized anxiety syndrome, depression, anxiety, and PTSD. During her initial treatment sessions she again asserted that she was a victim of an in-service sexual assault, recounting the same stressor listed above. These diagnoses were confirmed in subsequent VA treatment records dated from 2007 to 2011 and VA treatment provider statements discussed below. In an April 2009 statement, a VA Licensed Clinical Social Worker (LCSW), psychologist, and Psychiatric and Mental Health Nurse Practitioner (PMHNP) indicated that they were clinicians who have provided the Veteran with individual therapy, case management, and medication management for chronic PTSD related to military sexual trauma. They reported their belief that their collective clinical judgment has validity as on-going providers of mental health care for the Veteran. The statement contained another recitation of the same sexual assault stressor during service in 1958. Thereafter, the treatment providers noted that the Veteran was subjected to a predatory sexual assault at a very young age. It was reported that the Veteran has consistently struggled to function throughout her adult life having difficulties with relationships, employment, legal and financial struggles, and a myriad of psychiatric symptoms related to her complex PTSD. They opined that the Veteran's life was tragically altered by her military sexual trauma experiences during her time of service and finding that sexual trauma resulted in ongoing symptoms of PTSD, highlighting multiple key points and citing multiple sources. In a December 2009 and January 2010 VA treatment notes, a VA psychiatrist listed an assessment of chronic PTSD and military sexual trauma that most likely caused PTSD. He noted some exacerbation of symptoms, mostly anxiety, due to stress of impending C&P that often stirs up memories and symptoms. In July 2010, he indicated that the Veteran needed individual therapy for longer standing issues than military sexual trauma, as her father was a cold and aloof tyrant who loathed intimacy. In a March 2011 statement, a VA PMHNP indicated that she had met with the Veteran on three occasions when her in-service sexual assault was discussed. She reported that the Veteran does continue to be quite distressed by the incident, appeared to be very credible, and has maintained consistency about her in-service experience for many years. The diagnoses of PTSD due to a sexual assault stressor during service contained in the record were rendered by a VA LCSW, VA psychiatrist, VA psychologist, and VA PMHNPs as a result of their treatment of the Veteran as well as her detailed recital of an in-service sexual assault in 1958. It is important to note that, for personal assault PTSD claims, an after-the-fact medical opinion can also serve as the credible supporting evidence of the reported stressor. Patton v. West, 12 Vet. App. 272, 280 (1999). Indeed, during the pendency of this appeal, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued its decision in Menegassi v. Shinseki, No. 2010-7091 (Fed. Cir. Apr. 21, 2011), expressly holding that, in PTSD cases where the alleged in-service stressor is a sexual assault, "under 38 C.F.R. § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether occurrence of the stressor is corroborated." Accordingly, the Federal Circuit held that favorable medical opinions that diagnose PTSD must be weighed against all other evidence of record for purposes of determining whether a claimed in-service sexual assault has been corroborated. In this case, after carefully reviewing all the evidence on file, the Board finds no adequate basis to reject the competent lay statements and medical evidence of record that is favorable to the Veteran, based on a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). There is simply no competent medical opinion to outweigh the favorable medical opinions of record. Moreover, as indicated, these opinions not only diagnose PTSD and relate that diagnosis to an in-service trauma, they also provide assessments as to whether the stressor event (sexual assault) occurred. In so finding, the Board must note that the evidence of record is not unequivocal. While indicating that she had psychiatric treatment after service in the 1960s and 1970s during her hearing, the fact that the Veteran first filed a claim for service connection for PTSD in 2008, over four decades after leaving service, weighs against her claim. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). Additionally, service treatment records clearly reflected that she was marked as abnormal on psychiatric clinical evaluation on enlistment and separation, a finding considered not disabling on entrance but noted as severe, schizoid personality on discharge. Available service personnel records also showed deterioration in her work performance and demeanor both before and after her alleged in-service assault during the late summer of 1958. Finally, the Veteran's statements concerning her in-service assault, while deemed consistent, are nevertheless not overly detailed or illustrative. Even so, the Board must find that the evidence is at least in equipoise. Given the circumstantial evidence of record corroborating the reported military sexual trauma, as well as evidence of record showing a current diagnosis of PTSD related to military sexual trauma, the Board finds that the in-service stressor identified by the Veteran has been verified as is necessary to establish a claim for PTSD based on a personal assault pursuant to 38 C.F.R. § 3.304(f). Accordingly, the Board resolves all doubt in the Veteran's favor and finds that the evidence supports entitlement to service connection for PTSD. 38 U.S.C.A. § 5107(b). As such, the appeal is granted. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs