Citation Nr: 1237446 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 10-21 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 and her husband ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from November 1975 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT The Veteran has PTSD that is as likely as not attributable to events during her active military service. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this decision, the Board grants service connection for PTSD. 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. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Establishing service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). Section 4.125(a) requires the diagnosis to conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Regarding her claim of service connection for PTSD, the Veteran alleges that she experienced an in-service stressor involving sexual trauma and other instances of harassment. The regulations provide that if a 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. 38 C.F.R. § 3.304(f)(5). Additionally, VA will not deny a PTSD claim that is based on in-service personal assault without first advising the Veteran that evidence from sources other than the Veteran's service records or evidence of behavioral changes may constitute credible supporting evidence of the stressor in allowing 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. Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor). The Veteran's service treatment records do not contain a diagnosis of, or treatment for, PTSD or any other psychiatric disorder. The service records, including personnel records, also do not document an incident involving sexual trauma or harassment. However, this is not unexpected in light of the regulations concerning PTSD due to personal assault, which suggest that evidence from sources other than official service records may be necessary to corroborate the Veteran's account of the stressor incident. In August 2003, the Veteran submitted a comprehensive statement in which she detailed several instances of harassment that occurred during service and an incident of rape that occurred in 1976. Through other submitted statements in support of her claim, testimony at an April 2011 Board hearing, and statements made to medical professionals in the course of treatment, the Veteran has set forth a consistent account of military sexual trauma. In addition, her husband, whom she first married during service, has indicated that the sexual trauma occurred as the Veteran has reported. He submitted statements and provided hearing testimony to this effect. Moreover, the Veteran's children submitted statements indicating that the Veteran recounted the experiences to them many years earlier. Thus, the Veteran is seemingly credible in her statements concerning the claimed in-service sexual trauma and other evidence in the claims file does not conflict with her account. The earliest treatment for possible symptoms of PTSD occurred in April 2003 at the VA Medical Center (VAMC) in Tampa, Florida. A diagnosis of PTSD was initially made in June 2003, which was approximately 25 years after the Veteran's separation from active military service. Even so, multiple VA medical professionals have diagnosed the Veteran with PTSD and attributed the disorder to military sexual trauma. In fact, no fewer than five VA mental health care providers have diagnosed the Veteran with PTSD secondary to military sexual trauma. This included the Chief of Psychology at the Tampa VAMC. Essentially, multiple evaluators considered the Veteran's report of military sexual trauma and found it to be credible enough to support a clinical diagnosis of PTSD. In this type of case, the medical opinions themselves are supporting evidence that the claimed in-service stressor actually occurred. See Menegassi, 683 F.3d at 1382. When considering this consistent supporting evidence, and when resolving reasonable doubt in the Veteran's favor, the Board finds that the in-service stressor as likely as not occurred. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Given the clinical diagnosis of PTSD secondary to the in-service stressor, the Board finds that the Veteran has PTSD that is as likely as not attributable to events during her active military service. In view of this finding, the Board concludes that the criteria for service connection for PTSD are met. See 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Therefore, service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs