Citation Nr: 1127205 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 09-38 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from June 1999 to May 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the above-referenced Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing held in September 2010, before the undersigned. The transcript from that hearing has been reviewed and associated with the claims file. FINDING OF FACT The Veteran's PTSD has been medically attributed to a corroborated in-service stressful incident. CONCLUSION OF LAW Giving the benefit of the doubt to the Veteran, service connection for PTSD is warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f)(3) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). The VCAA applies in the instant case. However, as the decision below constitutes a full grant of the benefits sought in the present appeal with regard to the Veteran's claim for service connection for PTSD, any deviation in the execution of the VCAA requirements by the RO constituted harmless error, and does not prohibit consideration of this matter on the merits. Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 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). To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (DSM-IV). 38 C.F.R. § 3.304(f). The Court of Appeals for Veterans Claims (Court) has taken judicial notice of the mental health profession's adoption of the DSM-IV. Cohen, supra. According to the current criteria, a diagnosis of PTSD requires exposure to a traumatic event, or stressor. A stressor involves exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and the person's response involved intense fear, helplessness, or horror. The sufficiency of a stressor is a medical determination, and the occurrence of a claimed stressor is an adjudicatory determination. Id. In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran's assertion that the stressful event occurred. A medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, supra, at 142; Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). The Board notes that 38 C.F.R. § 3.304(f)(3) was revised in 2002 to provide for specific notification to claimants alleging an undocumented personal assault in service concerning the types of evidence other than service records which could be submitted to corroborate such assault. In particular, if a PTSD claim is based on an in-service personal assault, evidence from sources other than the Veteran's service records may corroborate his or her account of the stressor incident. Examples of such evidence include, but are not limited to the following: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians, 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, but are not limited to the following: 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)(3); see Patton v. West, 12 Vet. App. 272 (1999) (holding that special VA Adjudication Procedure Manual evidentiary procedures apply in PTSD personal assault cases). Chapter 38 C.F.R. § 3.304(f)(3) further provides that VA may submit any such evidence as is described under that provision to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. In essence, unlike claims for PTSD that do not involve an assertion of personal or sexual assault, VA can take into account the opinion of a medical professional as to the likelihood that the stressor actually occurred, rather than just relying on such a professional to determine whether or not a stressor supports a diagnosis of PTSD. 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 appellant'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. See 67 Fed. Reg. 10330-10332 (March 7, 2002). The Board also notes that VA regulation at 38 C.F.R. 3.304(f) has recently been amended in order to liberalize the requirement of verification or corroboration of a veteran's claimed in-service stressor events in a PTSD claim. 38 C.F.R. § 3.304(f)(3), as added in 75 Fed. Reg. 39,843-852 (July 13, 2010). The amendments, which eliminate the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity", are not relevant in this case. The Veteran contends that she developed PTSD as a result of a sexual assault during service. The incident in question involves a date rape by a fellow serviceman. She further claims that, as a result of the assault, she began having trouble sleeping and engaged in various types of inappropriate behavior, including an outburst of anger which resulted in a laceration to her arm that required several stitches. In support of her claim is a report from the Air Force Office of Special Investigations (OSI) dated in December 1999, approximately 1 month after the claimed sexual-assault. The Veteran basically related that while she could not recall that she was actually raped, she felt that sexual intercourse had taken place without her consent or knowledge as she was incapacitated. She described feeling violated and that she been taken advantage of. The Veteran ultimately dropped the charges. The Board finds that given the independent verification of the Veteran's claimed stressor, the record contains credible supporting evidence that an in-service stressful event actually occurred. 38 C.F.R. § 3.304(f)(3). The record also contains evidence favorable to the claim in the form of multiple diagnoses of PTSD. The pertinent records show that the Veteran described her claimed stressor in some detail to her VA treating psychologist. She also reported that she continues to suffer from severe chronic depression, anxiety, anger, mood swings, flashbacks, nightmares, and social withdrawal resulting from her rape while serving in the military. The psychologist concluded that the Veteran endorsed symptoms consistent with a diagnosis of PTSD and that it was more likely than not related to the trauma the Veteran experienced in service. In January 2009 the Veteran underwent VA psychiatric examination. At that time a psychiatrist reviewed the claims file in its entirety, took a detailed history of the Veteran's military service, including the documented stressor; post-service symptoms; and complaints. However, the psychiatrist concluded the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. Instead, the Axis I diagnosis was major depressive disorder and alcohol abuse. Her conclusion appears to be based on the fact that the Veteran was not sure that she was raped and was confused about the whole incident. The psychiatrist explained that the Veteran reported that she was drunk at the time and remembered not wanting to engage in sexual intercourse, but did not feel threatened or intimidated when it occurred. The Veteran also reported that she did not think she had been taken advantage of until a friend, in whom she confided, told her she had been. Also of record is an undated letter from the Veteran's ex husband, who stated that the Veteran told him that she had been sexually-assaulted in service. In determining whether service connection is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Board finds that the PTSD diagnosis from the VA treating psychologist, and the negative medical opinion from the VA psychiatrist, at the very least place the evidence in equipoise as to whether the Veteran has PTSD due to an in-service assault. Although the medical evidence of record does present questions, it is not so sufficient as to totally reject the Veteran's contentions. Of particular significance to the Board in this matter are the Veteran's in-service stressor (as is confirmed by the OSI report) and her description of continued problems since service (assertions that she is competent to make). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Resolving all reasonable doubt in her favor, there is sufficient evidence showing that the Veteran has a current diagnosis of PTSD that is associated with her conceded in-service stressor pertaining to military sexual trauma. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs