Citation Nr: 1127013 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 09-04 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and her cousin (observer) ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1974 to March 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision, dated November 2008, of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran was afforded a Board videoconference hearing before the undersigned in June 2011. A transcript of the hearing is incorporated in the claims file. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy during service. 2. The Veteran has a current diagnosis of PTSD. 3. An in-service personal assault stressor occurred. 4. The Veteran's PTSD is due to the verified in-service personal assault stressor. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The claim of service connection for PTSD has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection for PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 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). Personality disorders are not disabilities for VA disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2010). Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); 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). The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror. See DSM-IV § 309.81 (4th ed. 1994). If a claim for service connection for PTSD is based on allegations of in-service personal assault, evidence from sources other than a veteran's service records may corroborate a 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 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 and such evidence 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)(5). The regulation specifically provides that 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 a 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)(5). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d),(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In this Veteran's case, the evidence does not show, nor does the Veteran allege, that she engaged in combat with the enemy during active service. The Veteran has specifically stated that her claimed PTSD is not due to combat experiences, but is due to an in-service personal sexual assault. The Board also finds that there is no objective evidence that the Veteran "engaged in combat with the enemy." For this reason, 38 U.S.C.A. § 1154(b) is not applicable in the instant case. The Veteran contends that she suffers from PTSD due to two episodes of rape in service. In April 2007 statements, the Veteran contends she was raped by a fellow service member in January 1978 while stationed at Galena Air Force Base, and that she was later raped by her commanding officer in November 1984 while stationed at Patrick Air Force Base. With regard to the first element necessary for a grant of service connection (medical evidence of PTSD), there are diagnoses of PTSD of record in accordance with DSM-IV criteria. The first requirement for any service connection claim is competent evidence of existence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). VA treatment records from February to March 2007 reported that the Veteran had positive PTSD and MST screenings. An October 2007 VA PTSD examination listed an Axis I diagnosis of PTSD. A December 2008 VA PSTD examination report also listed an Axis I diagnosis of PTSD. The October 2007 VA PTSD examination that listed an Axis I diagnosis of PTSD also listed an Axis IV diagnosis of psychosocial stressors that included a history of rape. The VA examiner noted a history of the Veteran being raped multiple times in service. A December 2008 VA PSTD examiner opined that the Veteran gave a coherent, consistent history of being sexually assaulted in service, and that the Veteran's weight gain symptoms in service were consistent with an individual who had been sexually assaulted. The second criteria for service connection for PTSD is credible supporting evidence that the claimed in-service stressor occurred. Service treatment records, coupled with the Veteran's reported history of the in-service assaults given during treatment, provide credible evidence of the occurrence of the claimed in-service stressors of being sexually assaulted by a fellow service member in 1978 and by her commanding officer in 1984. As in this case, where the claim for service connection for PTSD is based on allegations of in-service personal assault, evidence from sources other than a veteran's service records may corroborate a veteran's account of the stressor incident. The evidence of record in this case does not contain any reports from law enforcement authorities or rape crisis centers evidencing a sexual assault, and the Veteran does not contend that she made any such reports or that such records were created. There are service records reporting symptoms consistent with an in-service assault. A January 1978 service treatment record reported that the Veteran had symptoms of pain, nausea, and constipation. The service examiner reported pain involving a large area of the Veteran's right lower quadrant (RLQ). Service treatment record entries dated in March 1978 and July 1978 reflect that the Veteran reported suffering from insomnia and being unable to sleep. In July 1978, the Veteran also reported severe pain in the inguinal (groin) area. A March 1979 service treatment record entry reflects a one year history of RLQ pain that increases during menses. A May 1979 service treatment record reported a possible urinary infection the year before and continued groin pain. A September 1979 service treatment record reported a long history of menstrual cramping. The Veteran's service treatment records also report a weight gain of thirty pounds while in service. The Veteran has also submitted statements from family members concerning the alleged in-service sexual assault. In a July 2007 statement, the Veteran's brother wrote that the Veteran had confided in him about the personal assaults while stationed at Galena Air Force Base, and that her behavior changed dramatically while she was in service. An April 2007 letter from D. Z. reported that the Veteran's behavior changed dramatically during her active service. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. In this case, there is credible evidence of record that, following the claimed sexual assault in January 1978, the Veteran requested a transfer to another military duty assignment. In the June 2011 Board hearing, the Veteran testified that she requested a transfer, but was denied. The Veteran was also reprimanded multiple times for being overweight. The Veteran was ultimately discharged from the Air Force in March 1986 due to her weight. The Board finds the Veteran's statements concerning the occurrence and details of the alleged in-service assaults to be credible. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran has been very consistent in reporting the in-service personal assault events. In the October 2007 and December 2008 VA examination histories, the Veteran's reporting of the in-service assaults was consistent. The December 2008 VA examiner opined that the Veteran gave a coherent, consistent history of being sexually assaulted in service. Based upon the weight of the evidence, the Board finds there is credible supporting evidence that the claimed in-service stressors of sexual assault occurred. The third criteria, a link, established by medical evidence, between current symptoms and an in-service stressor, is met in this case. In the October 2007 VA PTSD examination, the Veteran was given an AXIS I diagnosis of PTSD and the VA examiner listed a history of rape as a psychosocial stressor. In a February 2008 VA PTSD opinion, the VA examiner opined that the Veteran never reported the sexual assault in service due to the lack of confidentiality and feared that any report would lead to retributions and her career being significantly harmed. In the December 2008 VA PTSD examination, the VA examiner opined that the Veteran gave a coherent, consistent history of being sexually assaulted in service. The VA examiner also opined that the Veteran's weight gain was consistent with an individual who had been sexually assaulted. The Board finds that the October 2007 VA PTSD opinion, the February 2008 VA PTSD opinion, and the December 2008 VA PTSD opinion are competent and probative medical evidence because they are all based on a factually accurate history. It appears the VA examiners were informed of the relevant evidence in this case, relied on accurate facts, and gave fully articulated opinions that were supported by a sound reasoning. Prejean, 13 Vet. App. at 448-9; Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens, 11 Vet. App. at 382; see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). For these reasons, the Board finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's currently diagnosed PTSD is related to active service. For these reasons, and with resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for PTSD are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs