Citation Nr: 1126200 Decision Date: 07/12/11 Archive Date: 07/19/11 DOCKET NO. 95-37 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES Entitlement to service connection for posttraumatic stress disorder (PTSD). Entitlement to service connection for psychiatric disability other than PTSD. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to September 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified at a hearing before the RO in March 1996 and at a Travel Board hearing before the undersigned Veterans Law Judge in March 1998. A transcript of each hearing is associated with the claims folders. When this case was most recently before the Board in November 2009, the issue of entitlement to a disability rating higher than 20 percent for lumbosacral strain from October 14, 2006, to the present was decided and the issue of service connection for psychiatric disability, to include PTSD and major depression, was remanded to the RO or the Appeals Management Center (AMC). It has since been returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran's PTSD is not related to sexual assaults or other stressor in service that have been adequately corroborated. 2. The Veteran is not credible as to her assertions of in-service sexual assaults. 3. The Veteran's major depressive disorder (MDD) is etiologically related to the Veteran's service-connected back disability. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2010). 2. MDD is proximately due to or the result of service-connected lumbosacral strain. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. § 3.102 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for psychiatric disability, to include PTSD. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA- administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was not provided adequate VCAA notice until December 2009, after the initial adjudication of her claim. However, following provision of the required notice and completion of all indicated development of the record, the originating agency readjudicated the claim in March 2011. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by readjudication of the claim). There is no indication or reason to believe the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. Special development is required when a PTSD claim is based on stressor of alleged physical or sexual assault. See YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272 (1999); M21-1, Part III, para. 5.14d; 38 C.F.R. § 3.304(f)(3). In this case, the RO sent the Veteran a letter in July 2003 advising her of the elements required to establish service connection for PTSD and the types of evidence that are acceptable toward showing physical or sexual assault in service. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim. The Veteran's service treatment records (STRs) and service personnel records (SPRs) are of record, as are treatment records from those VA and non-VA medical providers identified by the Veteran as having relevant records. The Veteran has been afforded VA medical examinations in response to the claim herein decided. Although the RO attempted to verify the Veteran's account that she had been sexually assaulted in April 1971 and in "72-73," these attempts yielded no results. In sum, any procedural errors in the originating agency's development and consideration of the claim were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria 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. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself in service (or within the presumptive period under 38 C.F.R. § 3.307) and the veteran currently has the same condition; or (2) a disease manifests itself in service (or within the presumptive period) but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Entitlement to service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2009); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, 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)(1). 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 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). When the claimed PTSD stressor is physical or sexual assault in service, 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 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. Credible supporting evidence may consist of a medical opinion, based on review of the evidence, that the personal assault occurred. 38 CFR § 3.304(f)(4). A Veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2010). Only such conditions as are recorded in physical examination reports are to be considered as "noted." The Veteran's reported history of the pre- service existence of a disease or injury does not constitute notation of such disease or injury, but is considered with all other evidence in determining if the disease or injury pre-existed service. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service- connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of the claims for secondary service connection, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran states she has psychiatric disability that is related to service. She contends she has PTSD due to sexual assault in service. She also contends that her MDD is due to her service-connected back disability. Service treatment records (STRs) show no indication of psychiatric symptoms, pathology or treatment. Service personnel records (SPR's) reflect that her military occupational specialty was personnel records specialist. From the time of enlistment to August 5, 1972, her conduct was excellent. From that time forward, her conduct and efficiency were considered unsatisfactory. The Veteran was counseled on several occasions regarding job performance. From January through March 1973, she was counseled for duty inefficiency on four occasions, personal hygiene on one occasion and job inefficiency on one occasion. The non-commissioned officer in charge (NCOIC) noted in a March 1973 recommendation for elimination based on unsuitability that the Veteran had self-imposed problems which she brought to the workplace which interfered with her work as well as the work of others. She was advised to see the Chaplain and claimed that she visited mental hygiene without results. She was deemed very immature to the point of being unstable. The NCOIC observed that efforts at rehabilitation would probably be unsuccessful since the Veteran had been given more than ample opportunity to improve, without success. She was recommended for an Honorable Discharge with a bar to re-enlistment, as opposed to a General Discharge, since the action was based solely on inefficiency and the General Discharge would impose a stigma. The Veteran wrote a rebuttal to these accusations in April 1973. She stated that her conduct and efficiency were excellent prior to taking on the position of suspense clerk. She stated that she was instructed in the position by someone who did not really know what they were doing. She noted that a SP5 took over the job in the middle of November. She noted that she then became a Distribution Clerk, delivering orders and messages and activities as she had been instructed. When a new sergeant arrived, she found out that the job involved other duties. She noted that she was properly trained in Army school and had no problems with anyone. She had had no Article 15's and had made her decision to re-enlist. She indicated that she really did not know what to do at that point. In conjunction with her separation, a notification of pregnancy, dated in August 1973, was included in the SPR's, with an estimated delivery date in April 1974. The report of her separation physical examination also notes that she was pregnant; all other clinical evaluations, including psychiatric, were normal. The Veteran was discharged from active service in September 1973. At the time, she was reportedly not recommended for re-enlistment. The Board notes the Veteran is presumed to have been sound upon entry into active service as to her mental health, as no conditions were noted at the time of the acceptance, examination, or enrollment, and no clear and unmistakable evidence demonstrates that such a condition existed before acceptance and enrollment. The simple fact that the Veteran has a history of sexual abuse as a child does not convince the Board that she had a pre-existing mental health disability. Thus, the presumption of soundness attaches in this case, and is not rebutted. The Veteran applied for service connection for psychiatric disability in April 1998. The record of an April 1998 psychological evaluation from the Forrest Family Institute includes the initial Diagnostic Suggestions, based on the DSM IV criteria, of PTSD, bipolar disorder, adjustment disorder, major depression, anxiety disorder, agoraphobia, and or panic disorder. She reported a difficult childhood as well as sexual abuse by groups of males and females in service. She also noted ankle, back and leg injuries in basic training which caused depression. She reported that she went on to become a personnel clerk and was sexually assaulted by several NCIOC's on one occasion and an officer on one occasion. She reported the incidents to a colonel she trusted who referred her to the Judge Advocate General (JAG)'s office. Charges were filed but she was harassed during that time by room and clothing searches, as well as extra duties. She was transferred away from the colonel because of threats against her. She was again sexually harassed in her new assignment, and she reported that she could not handle it so she attempted suicide. She reported that she married an NCO and did not re-enlist. She reported that the JAG investigation resulted in personnel being discharged, fined and reduced in rank. She also reported abuse while in the hospital. The Veteran reported to the examiner that she sought treatment for her back in 1995. She had increased panic attacks, flashbacks, nightmares, nightsweats, recurrent memories of abuse and other related symptoms. The aforementioned diagnostic suggestions followed mental status examination. A December 2003 letter from the JAG officer at the base where the Veteran served indicates that the Army did not have any records of the incident as it was over 30 years ago. There is a lengthy history of reported sexual abuse in childhood, as reflected in private and VA records dated from January 1998. VA treatment records from August 1998 through the present reflect treatment for various ailments and include a historical diagnoses of PTSD and major depressive disorder. The report of a VA mental health examination in October 2006 notes that the Veteran acknowledged childhood sexual abuse but did not know who to report it to at the time. A VA mental health examination in May 2009 addressed whether there was a relationship between current psychiatric disorder and service-connected disability. The Veteran reported childhood sexual abuse as well as in-service sexual abuse. She stated that she was raped by lesbians in her barracks. Her sergeant was a lesbian who became angry with her because she returned one day late from her honeymoon. She stated that the sergeant unlocked her door, let the other women hold her down and beat her. She stated they also did other things she could not go into, and indicated these were of a sexual nature. She reported being raped during boot camp, being locked in closets for days at a time. She reported that during basic training she was sent through a gas chamber and then the trainers would "take you to other rooms...rape you, slap you around...shove broomsticks up your cavities...it was supposed to make us better to deal with what would happen if we were captured." She was told that if she told anyone about it she would be sent to Leavenworth and dishonorably discharged. She reported that shortly after this she broke her back doing KP and was hospitalized in traction for 6 weeks. The examiner opined that he could not render an opinion as to whether there was a relationship, without resorting to speculation. By way of explanation, he noted that the Veteran did report episodes of sexual assault as well as a back injury in service. However, he did observe internal inconsistencies in the Veteran's statements. For instance, she initially reported that she did not remember childhood sexual abuse, but later indicated that she was starting to remember. The examiner noted that the Veteran had previously recalled the childhood abuse in multiple examinations. He observed that, in his experience, once remembered, such memories are then available for recall. He also observed that she scored in the "interpret with caution" range of a personal assessment, indicating that she had a strong tendency to portray herself negatively. When confronted with this information, she reported that her alter ego "Louise" must have answered the questions. She was given a multiple personality screening and the results did not endorse multiple personality. Although she appeared to over-estimate her symptoms, she did, according to the examiner, have a history of depression. The Veteran had a lengthy mental health evaluation by a VA psychologist in April 2010 for the purpose of refining and clarifying the current diagnosis. The examiner noted the Veteran's history before, during and after service, to include the numerous instances prior to service in which she was sexually assaulted. He noted the Veteran's reports of being in various foster situations and having her biological mother offer her as a sex toy for men to make money for the family before she gave her up. It was noted that she reported that she dropped out of high school in senior year to get married in an arranged marriage, and that her marriage did not last since her husband threw her out a window. She received her GED after that. (This is confirmed in her STR's). The Veteran denied history of significant pre-service medical difficulties or diagnoses. As to mental health, the report notes her assertions as to depression secondary to difficulties coping with the childhood history of abuse. Again, the Veteran was noted to state that she tried to block out these memories. In regard to active service, the same incidents noted in the May 2009 examination were listed. She again stated she was assaulted by her lesbian first sergeant. She again stated she was also raped in boot camp and recited the same history regarding the gas chambers and rape. Moreover, she again stated that she was sexually assaulted when she went into the gas chambers, as the trainers felt this would make them better able to handle being captured. The psychologist who performed the examination in April 2010 diagnosed PTSD and major depressive disorder. He opined that these were at least as likely as not etiologically related to sexual and physical trauma experienced in service. Specifically, while she endorsed symptoms of depression and anxiety secondary to difficulties in coping with childhood sexual abuse, the military related content of the current recall symptoms suggest that exposure to sexual and physical trauma while in the military significantly aggravated any pre-existing symptoms beyond what would be anticipated. In a February 2011 addendum, the examiner opined that the service-connected back disability impacts how her depression manifests across time. He indicated that the depression was at least as likely as not related to the service-connected back condition. The depression is essentially affected or due in part to her back disorder. The Board concludes that the criteria for service connection for PTSD are not met. The Veteran's stressors are not verified despite attempts at verification. She did not engage in combat. The JAG office responded in December 2003 that no records could be found for any proceedings over 30 years old. There is no other independent verification of the alleged assaults. The Veteran's performance ratings were excellent in basic training and they are not indicative of assault having occurred. The Veteran's performance reviews indicate that she began to perform poorly in connection with her duties at her new command. She has not alleged these individuals sexually assaulted her. To the contrary, in her May 2009 and April 2010 examinations, she clearly indicated that the assaults occurred during her training period. The only data available for that time period shows that she was performing well. Her statement in rebuttal for her discharge in 1973 in fact indicates she had no trouble in training. The recent examiner in April 2010 asserted the Veteran has PTSD due to sexual trauma in service; however, the stressors alleged as the basis of this opinion are not corroborated. Thus, the opinion is not probative as to the establishment of PTSD related to service. The Board notes that a claimant is entitled to service connection where he/she submits supportable competent evidence of in-service nexus that is not rebutted by other medical opinion of record. Hanson v. Derwinski, 1 Vet. App. 512 (1991). Here, she has not met the VA criteria for PTSD because her stressors are not corroborated. The Board cites to the May 2009 VA examination report for support for the assertion that the Veteran's statements as to the nature and timing of assaults have been vague and inconsistent and are thus not considered credible. The May 2009 opinion indicates that her recall of the incidents is less than truthful. The Veteran's accounts of personal assault during service have been inconsistent. In April 1998 she seemed to indicate that the incidents occurred in her duty station following training, when her performance faltered. She has since stated the incidents occurred in basic training. Her declining performance and her trouble in service as reflected in her SPR's do not coincide with her reported assaults. In sum, the Board finds her assertions as to the in-service assaults to be not credible. With respect to the Veteran's depressive disorder, the Board notes that the February 2011 addendum essentially supports the assertion that it is related to the service-connected back disability in that the back pain affects how her depression manifests. As he noted, the Veteran has complained of periods of exacerbation of depression due to the back pain. The Veteran is competent to state that she has more depressed feelings when she has pain. "A layperson can certainly provide an eyewitness account of a veteran's visible symptoms." Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The medical opinion of February 2011 supports this assertion. Moreover, the April 2010 report suggests that the depression is directly related to the physical, or back, injury in service. Therefore, the Veteran is entitled to service connection for MDD. ORDER Service connection for PTSD is denied. Service connection for major depression is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs