Citation Nr: 1136869 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 08-09 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to September 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from adverse action by the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia, (RO). The Veteran was scheduled to attend a hearing before a Veterans Law Judge scheduled for January 28, 2011, but failed to attend. The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has recharacterized the issue of entitlement to service connection for PTSD as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). FINDING OF FACT 1. The evidence of record fails to sufficiently corroborate the Veteran's claimed non combat stressor of a sexual assault. 2. The evidence does not relate an acquired psychiatric disability to the Veteran's time in military service. CONCLUSION OF LAW Criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in April 2005, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. It is noted that this letter included notice as to the information that could be submitted in support of a claim for service connection for PTSD based on personal assault. It is also noted that in August 2007, the Veteran was sent another letter, again informing him of types of evidence that might be used to corroborate his alleged military sexual trauma. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment and service personnel records have been obtained, as have post-service VA and private treatment records. Moreover, the Veteran has not identified any records to obtain or individuals to contact that might provide corroboration for the sexual assault he contends occurred during service. Additionally, the Veteran was scheduled to testify at a hearing before the Board, but he failed to report to the scheduled hearing and has not advanced good cause for his absence. VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the Veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of: (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evaluation, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that a 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 a Veteran's service, the Veteran's lay testimony may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). If, however, a Veteran did not serve in combat, or if the claimed stressor is not related to combat, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). A Veteran's testimony alone cannot establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Furthermore, an opinion by a medical health professional based on post-service examination of the Veteran cannot be used to establish the occurrence of a stressor. See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). If the PTSD claim is based on 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 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: 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 the VA of potential sources of such evidence. (Such notice was accomplished by the April 2005 letter referenced above, as well as by an August 2007 letter). 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). VA amended its adjudication regulations governing service connection for PTSD during the pendency of his appeal by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor when it is related to fear of hostile military or terrorist activity. Specifically, the final rule amended 38 C.F.R. § 3.304(f), by redesignating current paragraph (f)(3) and (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3). 38 C.F.R. § 3.304(f) as amended 75 Fed. Reg. 39843 (July 13, 2010). As the Veteran does not assert that he has PTSD as a result of fear of military or terrorist activity, these amendments are not applicable and the Veteran is not prejudiced by the fact that he was not provide notice of these amendments. Several decisions of the United States Court of Appeals for Veterans Claims (Court) have affected the adjudication of claims for service connection for PTSD. In approaching a claim for service connection for PTSD, the question of the existence of an event claimed as a recognizable stressor must be resolved by adjudicatory personnel. If the adjudicators conclude that the record establishes the existence of such a stressor or stressors, then the case should be referred for a medical examination to determine the sufficiency of the stressor and to determine whether the remaining elements required to support the diagnosis of PTSD have been met. In other words, if the adjudicators determine that the existence of an alleged stressor or stressors in service is not established by the record, a medical examination to determine whether PTSD due to service is present would be pointless. Likewise, a diagnosis of PTSD based upon claimed stressors whose existence the adjudicators have not accepted would be inadequate for rating purposes. See Zarycki v. Brown, 6 Vet. App. 91 (1993); West v. Brown, 7 Vet. App. 70 (1994); and Caluza v. Brown, 7 Vet. App. 498 (1994). In this case, the Veteran alleges that he was raped by two sergeants while serving in Korea in 1974 or 1975, however, as discussed below, the evidence of record does not corroborate his account and therefore, no duty to obtain a VA examination has been triggered. The record in this case includes private (see e.g. February 2002 and January 2003 opinions by R.E.T, Ph.D.) and VA (see e.g. VA hospitalization reports dated from April 2004 to June 2004) clinical evidence reflecting diagnoses of PTSD due to military sexual trauma (specifically relating the Veteran's PTSD to his allegedly being raped while serving in Korea in 1974 or 1975). However, these private and VA diagnoses of PTSD cannot be used to establish the occurrence of a stressor. See Moreau, supra. In addition, as the alleged stressor is not related to combat, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. See Doran, supra. The Veteran's representative, in accord with the provisions of 38 C.F.R. § 3.304(f)(4), contends that there is corroboration of the Veteran's stressor to the extent that the service personnel records reflect substance abuse and a deterioration in the Veteran's work performance. The Veteran's representative also contends that the stressor is corroborated by service treatment reports reflecting multiple visits for treatment of stomach complaints, which is asserted to have been related to the stress associated with the claimed assault. It was also contended that the Veteran divorced his wife due to problems dealing with the memories of his rape. Addressing the contentions of the Veteran's representative, the service personnel reports do reflect a reduction in grade for the Veteran after being found to be in possession of a controlled substance (marijuana). However, this action was suspended by the Veteran's commander in March 1975 who stated as follows: [The Veteran] has been under my command for 1 week short of a year. During this period of time, other than the above circumstances [a reference to the Veteran being charged with the possession of marijuana], he has been a very trusted and loyal member of this Company. He has worked many long and hard hours on his own initiative while being assigned to the shop office. Thus, and contrary to the assertion of the Veteran's representative as to a decline in performance around the time of the alleged rape, the very individual under whom the Veteran served described the Veteran's performance around this time as being so exemplary that he recommended suspending his reduction in grade. Moreover, upon the termination of the Veteran's active duty, he continued on Reserve duty until 1985, attaining the position of a Reenlistment Non Commissioned Officer. The Veteran's responsibilities in this position were described by a service personnel report as including providing training in career development retention counseling. It is difficult to believe that had the Veteran's service experience been as negative as he has described due to the alleged rape, he would have upon discharge from active duty not only continued with military service in the Reserves for many years, but done so in a position that included the responsibility of ensuring that service members continue with their military service. As such, when viewed in their totality, the Board does not find corroboration of the stressors by the service personnel records, to include the assessments of the Veteran's performance therein. With respect to in-service gastrointestinal complaints, the Veteran's service treatment reports do reflect stomach complaints. However, the service treatment records suggest that the stomach problems pre-dated the Veteran's time in Korea. For example, a January 1974 service treatment reports reflects a "one year" history of such complaints and a September 1974 report reflects a "2 1/2 year" history of such complaints. Moreover, approximately one month after separation, the Veteran filed a claim seeking service connection for a stomach condition, which he reported had its onset in 1973 at Ft. Jackson. He was provided with a medical examination at which he reported that he had been experiencing stomach problems for three years. As such, the Veteran's initial stomach complaints predate the alleged sexual assault, which the Veteran reported had occurred in 1974 or 1975. Treatment for gastritis and a spastic colon was provided in 1975 but these reports do not, nor do any other service treatment reports, link gastric complaints to psychiatric problems, and no psychiatric problems were identified on the report from the July 1976 separation examination. In short therefore, the Board does not find corroboration of the Veteran's stressor by the mere fact that the Veteran was treated for stomach complaints during service. Finally, with regard to the reported reasons for the Veteran's divorce, while a private psychologist's report completed in August 2001 noted that the Veteran divorced his first wife in 1976, the Veteran stated that this was because "she was staying with another guy." Moreover, a May 27, 2004, VA outpatient treatment report noted that the Veteran was initially married in 1972 and that when he returned from the Army, his wife was living with another man, precipitating a divorce. Thus, the clinical record does not corroborate that the reason for the Veteran's divorce was difficulty over memories of the alleged in-service rape, but instead suggests infidelity as its cause. As such, the Board does not find corroboration of the asserted stressor by the mere fact that the Veteran and his first wife were divorced. Also weighing against the Veteran's claim is the fact that when he presented for VA psychiatric hospitalization in October 1986, the Veteran made no reference to the alleged in-service assault and instead complained about anxiety over financial and health matters and recent deaths of his sister, brother, and father. Furthermore, the Veteran made no mention of the in-service sexual assault when he presented for a private psychiatric evaluation in April 1997 or the appointment prior to the above referenced private psychologist's assessment completed in August 2001. Indeed, no treatment record relates a psychiatric diagnosis other than PTSD to the Veteran's military service. The Board recognizes that the Veteran in later statements beginning in 2002, first to the private psychologist and to VA medical professionals thereafter, referred to the alleged in-service assault. However, while such statements may be may be useful for purposes of treatment, for purposes of addressing the matter on appeal, the reliability of any of these statements is reduced by the Veteran's failure to mention the alleged military sexual trauma to medical professionals at an earlier date. In addition, it is noted that the Veteran twice filed VA disability claims without pursuing a psychiatric claim, before eventually filing for service connection for PTSD. With the Veteran's statements not considered to be reliable, the Board must look to other evidence to consider the claim, which in this case would include the Veteran's service records. The service medical records, as set forth above, do not show any psychiatric complaints or treatment, or link a gastrointestinal disability or any other medical problems to psychiatric complaints. Also as concluded above, the service personnel reports from active and Reserve duty, in their totality, do not reflect behavioral changes which might describe coping with a stressor as described by the Veteran. These records are considered highly probative as their purpose is to document the state of the Veteran's health and level of performance during service, and because these do not show any psychiatric impairment, that is strong evidence that the Veteran did not develop a psychiatric illness during service. It is then, despite intervening contact with mental health professionals initiated in 1986, well over twenty years between separation from active duty and the first time the Veteran alleged being raped in service, a gap in time that weighs against the Veteran's credibility. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). It is more than a decade between the Veteran's separation from service at which time he was found to be psychiatrically normal and the first treatment for psychiatric problems in October 1986. In short, while the Veteran and his representative have made several arguments as to why the evidence of record should be taken as having corroborated the Veteran's account of military sexual trauma, the Board, for the reasons enumerated above, does not find that this evidence is sufficiently persuasive to show that the Veteran was in fact raped in the military. The evidence which the Veteran and his representative advance as evidence of the Veteran being raped is more plausibly attributable to other causes. The Veteran has not provided any corroborating evidence, in the form of either evidence or a statement from an individual, that would establish the occurrence of the alleged in-service sexual assault. As such, the only evidence describing the alleged rape is from the Veteran himself (as he has described it to medical professionals). However, as noted, the Veteran's statements alone cannot corroborate the occurrence of his stressors, and even if they could, the inconsistencies in the record undermine his assertions to the point that they are not considered believable. Thus, after considering this record in its entirety, the Board considers the most probative evidence to be the Veteran's service medical and personnel records. As indicated above, since these have not demonstrated psychiatric impairment to the Board, the Board concludes the weight of the evidence is against a conclusion that the Veteran has a psychiatric disability, in particular PTSD, that was incurred in service. Not only has the evidence not corroborated the Veteran's reported stressor, but it has failed to relate an acquired psychiatric disability, other than PTSD, to the Veteran's service. In short, service treatment records and personnel records were both negative for any psychiatric complaints, problems, or treatment; and the Veteran was found to be psychiatrically normal at separation. Following service, the Veteran continued to be a productive member of the reserves. A decade after service, the Veteran first sought psychiatric treatment, but even then there was no suggestion that the psychiatric symptoms, diagnosed as Dysthymic Disorder and depression, were related to the Veteran's time in the military. Rather, the diagnosis was based on financial and health matters. Moreover, no medical professional appears to have related a acquired psychiatric disability, other than PTSD, to the Veteran's time in service. As such, the criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met, and the Veteran's claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection for PTSD, the doctrine is not for application. Gilbert, supra. ORDER Service connection for acquired psychiatric disability, to include PTSD is denied. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs