Citation Nr: 1141908 Decision Date: 11/10/11 Archive Date: 11/21/11 DOCKET NO. 09-26 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder, depressive disorder, and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a disorder manifested by dizziness. 3. Entitlement to service connection for a disorder manifested by fatigue. 4. Entitlement to service connection for a stomach disorder. 5. Entitlement to service connection for a disorder manifested by brown spots on the body. REPRESENTATION Appellant represented by: David F. Bander, attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from November 1968 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied service connection for disorders manifested by dizziness, fatigue, stomach problems, and brown spots on the body, and also denied service connection for anxiety reaction/ depressive disorder, finding that the Veteran had not submitted new and material evidence to reopen the claim. In April 2011, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO. A transcript is of record. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In light of Clemons, the Veteran's claim of entitlement to service connection for anxiety reaction/ depressive disorder has been recharacterized as a claim of entitlement to service connection for an acquired psychiatric disorder to include anxiety disorder, depressive disorder, and PTSD, as reflected on the cover page. The Board will consider the service connection claim for an acquired psychiatric disorder to include anxiety disorder, depressive disorder, and PTSD on the merits, without addressing the threshold issue of whether new and material evidence has been received to reopen the claim. Since the last final denial of the claim in January 2006, the RO obtained copies of the Veteran's service personnel records, which were previously available, but had not been added to the record. The records contain information concerning the possible existence of a pre-service psychiatric diagnosis and are therefore relevant to the claim on appeal. Thus, under 38 C.F.R. § 3.156(c), the Board will reconsider the claim without addressing the issue of new and material evidence. FINDINGS OF FACT 1. In April 2011, prior to the promulgation of a decision in the appeal, the Veteran submitted testimony that he wished to withdraw his service connection claims for disorders manifested by dizziness, fatigue, stomach problems, and brown spots on the body. 2. The Veteran's acquired psychiatric disorder, to include PTSD, was incurred in, or caused by, his military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of service connection for a disorder manifested by dizziness have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2011); 38 C.F.R. §§ 20.202, 20.204 (2011). 2. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of service connection for a disorder manifested by fatigue have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2011); 38 C.F.R. §§ 20.202, 20.204 (2011). 3. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of service connection for a disorder manifested by stomach problems have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2011); 38 C.F.R. §§ 20.202, 20.204 (2011). 4. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of service connection for a disorder manifested by brown spots on the body have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2011); 38 C.F.R. §§ 20.202, 20.204 (2011). 5. The criteria for service connection for an acquired psychiatric disorder, to include anxiety disorder, depressive disorder, and PTSD, have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Issues Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing or on record at a hearing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2011). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(c). The Veteran testified at the April 2011 Board hearing that the Veteran wished to withdraw his service connection claims for disorders manifested by dizziness, fatigue, stomach problems, and brown spots on the body. Because the Veteran has withdrawn his appeal as to the above issues, there remain no allegations of error of fact or law for appellate consideration on those issues, and the Board does not have further jurisdiction. II. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board grants service connection for an acquired psychiatric disorder. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. III. Service Connection The Veteran contends that his currently diagnosed PTSD is a result of military sexual trauma and being in a hotel when a grenade was thrown into the building in Vietnam. Specifically, in statements and testimony, the Veteran reported that soon after he arrived in Vietnam he was downtown in a hotel when Vietcongs on motor scooters threw grenades into the building and the grenades exploded. He recalled that one of the Marines had his arm blown off and that he ran out of the building and escaped. The second incident occurred when he was hiding on a rooftop when a Vietcong soldier found him and held a gun to his head for approximately one hour. He later stated on VA treatment records that the Vietcong soldier actually raped him. He testified that his psychiatric symptoms started shortly after he left the military and that he was seen at the Court Street VA Medical Center (VAMC) because he was having problems sleeping. He also indicated that he struggled with drug addiction because he was forced to self-medicate. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if 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 a veteran must provide medical evidence diagnosing PTSD; a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) . In PTSD cases in which the veteran asserts personal assault as the in-service stressor, VA has provided for special evidentiary-development procedures, including interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis. See Patton v. West, 12 Vet. App. 272, 280 (1999); see also VA ADJUDICATION MANUAL M21-1, Part III, para. 5.14c (February 20, 1996). Specifically, in claims concerning in-service personal assault, alternative forms of evidence (i.e., evidence other than service records) may be used to corroborate the Veteran's account of an in-service assault. 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 disease; statements from family members, roommates, fellow service-members, or clergy; evidence of behavioral changes following the claimed assault, such as a request for a transfer to another military occupational specialty (MOS) or duty assignment, deterioration in work performance, substance abuse, unexplained economic or social behavior changes, or episodes of depression, panic attacks, or anxiety without an identifiable cause. See 38 C.F.R. § 3.304(f)(3); see also Gallegos v. Peake, 22 Vet. App. 329 (2008). In determining whether service connection is warranted for a disability, VA is responsible for determining 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). The Veteran's service treatment records reveal that on the pre-induction physical dated in June 1968, psychiatric clinical evaluation was normal. The Veteran denied having a history of nervous trouble of any sort but did note a history of frequent trouble sleeping. Personnel records include a June 1968 Record of Induction, which notes a psychiatric problem and an attached letter from South Shore Mental Health Center. The May 1968 letter from South Shore Mental Health Center notes that the Veteran was referred for psychiatric evaluation by the Quincy Court prior to service in February 1963 because of his involvement in the theft of a carton of cigarettes. The psychiatrist who signed the letter noted that there was no clear indication that the Veteran's problems would prevent him from functioning adequately in service, or that his problems would be worsened by such service. VA regulations provide that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b). The presumption of soundness attaches only where there has been an induction examination that did not detect or note the disability that the Veteran later complains about. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. VAOGCPREC 3-2003; see also Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). The record shows that the Veteran had a history of delinquency prior to service but there is no clear and unmistakable evidence of a pre-existing psychiatric diagnosis. Even though the June 1968 Record of Induction notes a psychiatric problem, the psychiatric evaluation during the pre-induction physical was normal. Also, the psychiatrist who reported on the pre-service delinquency noted that psychotherapy had been suggested to the family but does not report on any diagnosed psychiatric condition that existed prior to service. As clinical evaluation of the Veteran was normal at entry into service and the medical evidence does not rise to the level of clear and unmistakable evidence of a pre-existing psychiatric disorder, the Veteran is considered sound at entry into service and the issue is whether the present psychiatric diagnoses were incurred in military service. Personnel records show that the Veteran served in Vietnam from January 21, 1970 to October 31, 1970. The service treatment records are negative for any psychiatric treatment during the Veteran's military service. His October 31, 1970 discharge examination was normal. However, approximately two weeks after the Veteran's discharge (and return from Vietnam), the record shows that he was seen at the VAMC Court Street Clinic on November 12, 1970 and was diagnosed with mild anxiety reaction. (see December 23, 1971 rating decision). A March 1972 VA hospital record notes that the Veteran was seeing a psychiatrist for drug addiction. VA hospital records dated from 1973 to 1978 note ongoing psychiatric treatment for drug and alcohol addiction. In October 1978, the Veteran was diagnosed with borderline personality organization. The Veteran was hospitalized again in January 1979 and was diagnosed with depression. It was noted that he had ingested a large, unknown quantity of unprescribed sleeping pills. The Veteran continued to receive VA outpatient psychiatric treatment through 1980. In May 1980, he was diagnosed with chronic severe anxiety. A March 1981 VA hospital record notes that the Veteran was again treated for ingestion of an unknown quantity of Valium. Private treatment records from Harvard Community Health Plan dated from February 1995 to January 1997 note a diagnosis of major depression. The Veteran reported on an April 1995 record that he had been subjected to mortar and rocket fire in Vietnam. The Veteran has since received fairly consistent VA psychiatric treatment, during which he has been diagnosed with depression, alcohol, opiate, and cocaine dependence, anxiety, and PTSD due to military sexual trauma. Significantly, during treatment in October 2007, the Veteran reported flashbacks to Vietnam and reported two traumatic incidents in Vietnam: The first event was when he was in Vietnam in a hotel downtown when grenades were thrown into the hotel. He described feeling terrified and vulnerable. In another situation he was held hostage with a gun by a Vietcong soldier. In January 2008, he had a positive PTSD screening and in June 2008, he was diagnosed with PTSD. A January 2009 VA emergency care record notes the Veteran reported that he was hiding on a roof in Vietnam when a Vietcong solder held a gun to his head and then raped him. He stated that he had been having increased flashbacks and nightmares about the event and discussed the shame and humiliation he felt of being a male rape victim. The diagnosis was PTSD; and the report was signed by a licensed social worker. A May 2009 VA treatment record shows the Veteran had PTSD symptoms referable to childhood sexual abuse and military traumatic experience with avoidance, re-experiencing, and increased arousal. This report was signed by a VA staff psychiatrist. A June 2009 VA hospital record notes the Veteran's reports of a North Vietnamese soldier holding a gun to his head; he stated that he was unable to recall how he escaped. The report also notes a history of being sexually molested as a child. The diagnosis was chronic PTSD. VA treatment records dated from 2010 to 2011 note ongoing assessments and treatment for PTSD due to military sexual trauma and childhood sexual trauma. In June 2011, the Veteran also reported that he had to shoot two people in Vietnam in a rice field. A letter from a counselor from the Boston Vet Center was submitted in April 2011 noting the Veteran's history of service in Vietnam. It was noted that the Veteran first became a client at the Vet Center in April 2010 and continued to be involved in readjustment counseling. The counselor who signed the letter reported that since his discharge from the military in 1970 the Veteran had experienced PTSD, which was related to his military service and that the stressors were due to the Veteran's persistent fear of hostile military activity. After a careful review of the evidence of record, the Board finds that the Veteran suffers from PTSD and that this condition is related to his reported in-service sexual trauma. In making this determination, the Board notes that the Veteran is competent to report that he was raped during service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge. Such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Board finds no reason to doubt the credibility of the Veteran in reporting that he was raped by a Vietcong soldier during service, and that he has experienced a continuity of symptomatology since service, including feelings of depression, anxiety, and difficulty sleeping. The Veteran's records are internally consistent, as evidenced by his private and VA treatment records, his statements, and testimony. Further, the Board finds that it is facially plausible that the rape described by the Veteran resulted in his resultant treatment for anxiety, depression, and PTSD. As such, the Board finds that the Veteran's statements are credible and probative, and add weight to the overall claim. See Struck v. Brown, 9 Vet. App. 145, 155-156 (1996). Furthermore, the Board points out that the Veteran's statements regarding the occurrence of his in-service stressors are consistent with the circumstances of his service as evidenced by the record. See Pentecost v. Principi, 16 Vet. App. 124 (2002); see also Gallegos v. Peake, 22 Vet. App. 329 (2008); see also 38 C.F.R. § 3.304(f)(3) (stating that alternative forms of evidence, including evidence of behavioral changes following the claimed assault, such as a request for a transfer to another MOS or duty assignment, deterioration in work performance, unexplained social behavior changes, or episodes of depression, panic attacks, or anxiety without an identifiable cause, may be used to corroborate the Veteran's account of an in-service assault). In this regard, the Board notes that the Veteran had no history of nervous trouble when he entered service, and was found to be normal psychiatrically at his pre-induction examination in June 1968. While the Veteran reportedly had a history of childhood sexual trauma and was noted to have delinquent behaviors prior to service, as stated above, he was shown to be psychiatrically sound at entry into service. Approximately two weeks after the Veteran's return from Vietnam and discharge from military service, the Veteran sought treatment and was diagnosed with an anxiety disorder and subsequently was treated for alcohol and drug abuse that he continues to struggle with. As such, the record shows that within weeks after service, the Veteran underwent unexplained social behavior changes and began experiencing episodes of anxiety without an identifiable cause. Finally, the Board finds it significant that, in January 2009, a VA licensed social worker diagnosed the Veteran with PTSD related to his reported stressor of being raped by a Vietcong soldier in military service; and in May 2009, a VA psychiatrist diagnosed the Veteran with PTSD due to childhood and military sexual trauma. While the Veteran's diagnosis of PTSD has been related to both his reported military sexual trauma and the childhood trauma, the medical evidence does not differentiate between the degree of relationship between the pre-service trauma and post-service trauma. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Moreover, the Veteran testified that the childhood event involved an adult exposing himself to him and his sister without any physical contact occurring and that he did not remember this happening until he was in his 50s. As noted above, when, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, 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; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (holding that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."). Because there is a medical diagnosis of PTSD related to the claimed in-service stressor, and credible supporting evidence of the occurrence of that stressor, the Board concludes that the preponderance of the evidence supports the grant of service connection for an acquired psychiatric disorder, to include PTSD. Thus, following a full review of the record, and applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, is granted. ORDER Entitlement to service connection for a disorder manifested by dizziness is dismissed. Entitlement to service connection for a disorder manifested by fatigue is dismissed. Entitlement to service connection for a stomach disorder is dismissed. Entitlement to service connection for a disorder manifested by brown spots on the body is dismissed. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder, depressive disorder, and PTSD, is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs