Citation Nr: 1301294 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-08 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for an acquired psychiatric disorder (other than an adjustment disorder with mixed features), to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to September 1973. He did not serve in the Republic of Vietnam and it is not otherwise contended that he participated in combat. The Veteran also appears to have had additional periods of service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran testified before the undersigned Veterans Law Judge in June 2011. A transcript of that proceeding has been associated with the claims file. The claim was previously before the Board in November 2011, at which time it was remanded for further development. Historically, the Board notes that a June 1994 rating decision denied service connection for a nervous condition, described as an adjustment disorder with mixed features. The Veteran did not appeal that determination. As explained in the Board's prior remand, however, new and material evidence is not required in this case as the claim now before the Board differs from the claim addressed in 1994, i.e., service connection for an adjustment disorder with mixed features. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7104 (West 2002). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1.The competent and credible evidence supports the Veteran's claimed in-service stressors relating to personal assault and harassment. 2. The Veteran has been diagnosed with posttraumatic stress disorder that is related to in-service personal assault(s). CONCLUSION OF LAW Resolving doubt in the Veteran's favor, the criteria for service connection for an acquired psychiatric disorder, diagnosed as PTSD, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA Before addressing the merits of the issues on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183, (2002). Given the determination reached in this decision the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for resolution of this service connection claim for PTSD at present without detriment to the due process rights of the Veteran. Service Connection - Applicable Laws and Regulations The Veteran contends that he has PTSD resulting from traumatic in-service events, including harassment and personal assault. To a lesser extent, he also claims that schizophrenia had its onset during active duty service. See, generally, Original Claim, August 2008. Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 . In order to establish service connection for a claimed disorder, there must be (1) medical evidence of 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Such determination is based on an analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Some chronic diseases may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3) ; see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases including psychoses). In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). The law provides that "[i]f the evidence establishes that the 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) (2012). Where, however, VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is unrelated to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the reported stressor. Instead, the record must contain evidence that corroborates the veteran's testimony as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d),(f); West v. Brown, 7 Vet. App. 70, 76 (1994). Further, there are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(4), provides that PTSD based on a personal assault in service permits evidence from sources other than the veteran's service records which may corroborate his or her 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. 38 C.F.R. § 3.304(f)(4) (2012). The M21-1MR also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1MR, Part IV, Subpart ii, 1.D.17.g. 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)(4) (2012). 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 VA of potential sources of such evidence. In addition, 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) (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). Factual Background and Analysis The Veteran primarily contends that his psychiatric disorder, variously diagnosed as PTSD and/or schizophrenia, is due to service. In pertinent part, the Veteran has long maintained that he experienced traumatic events, consisting of both personal assault and harassment, during service. For reasons explained below, the Board finds that service connection for PTSD is warranted; thus, the foregoing analysis will focus primarily on the criteria necessary to establish service connection for such disability. However, the Board acknowledges that the Veteran's post-service VA treatment records indicate that he has been variously diagnosed as having PTSD and schizophrenia. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Clemons v. Shinseki, 23 Vet. App. 1 (2009). In adjudicating the Veteran's claim, the Board has thus also considered the possibility of service connection for the other acquired psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As an initial matter, the Board notes that the evidence does not show, nor does the Veteran report, that he engaged in combat with the enemy or that his claimed stressor is related to combat service. Accordingly, his statements and testimony concerning the reported stressors may not be accepted, standing alone, as sufficient proof of their occurrence. Therefore, independent evidence is necessary to corroborate his statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). Again, the Veteran has alleged that he experienced various stressors in-service which caused him to develop PTSD. The stressors most capable of verification, and the stressors which have been linked to his PTSD diagnosis, are related to personal assault and/or harassment. In particular, the Veteran has asserted in statements and in hearing testimony, that he was abused and maltreated by his drill instructors (see October 1993 VA examination), and repeatedly smacked/slapped on the head and made to perform the "monkey stomp" - an embarrassing act in which he was forced to get into the kneeling position with his knuckles on the ground, and jump upwards, thereby scraping his knuckles. See, e.g., Hearing Transcript, pp. 4-5; see also VA Outpatient Mental Health Records, August 2004 and December 2007. The Veteran testified that during basic training it was only he who had been made to perform the "monkey stomp;" he reported that he was frequently singled out by his drill instructor for such punishment when other recruits were out of line. He stated that he began to drink alcohol around this time and developed psychiatric symptoms (such as flashbacks, dreams about his drill instructor, isolative behaviors, thoughts of going AWOL), some of which persist to the present day. VA has defined personal assault very broadly to include an event of human design that threatens or inflicts harm. Examples of personal assault include rape, physical assault, domestic battery, robbery, mugging, stalking, and harassment. See VA Adjudication Procedure Manual M21-1MR, Part III, Subpart iv., Ch. 4, Section H, part 30(a) (Aug. 1, 2006); VA Adjudication Procedure Manual M21-1MR, Part IV, Subpart ii., Ch. 1, Section D, part 17(a), (c) (Dec. 13, 2005). As the Veteran has claimed that he was assaulted and harassed in service, as detailed above, the Board will consider the provisions of 38 C.F.R. § 3.304(f)(4), which provides that PTSD based on a personal assault in service permits evidence from sources other than a Veteran's service records to corroborate his account of the stressor incident. The Veteran's service treatment records (STRs) during his active duty and reserve duty and service personnel records are on file. His STRs during his active duty and reserve duty are silent as to complaints, treatment, or diagnoses relating to a psychiatric disability; at his August 1973 service discharge examination he was psychiatrically normal. His service personnel records include an August 1973 Enlisted Efficiency Report in which it was reported that the Veteran had the potential to be an outstanding soldier but failed to realize his full capabilities. His off duty conduct was occasionally poor. His work performance was sometimes excellent but generally inconsistent. Although further removed from the alleged stressors which occurred between 1971 and 1973, later-dated Army Reserve personnel records show a pattern of excessive, unexcused absences from scheduled trainings. See, e.g., October 1985 Letter of Instructions - Unexcused Absence. The Board is cognizant that service personnel or service treatment records do not provide direct confirmation of the Veteran's alleged stressors. However, the personnel records do show a decline in proficiency (i.e., apparent behavioral changes), as of August 1973. See Enlisted Efficiency Report. In the absence of evidence to the contrary, the Board views this efficiency report, as well as the subsequent absences, as credible supporting evidence of the claimed stressors. See 38 C.F.R. § 3.304(f)(4) (2012). In addition, throughout the course of this appeal and beginning as early as 1993, the Veteran has submitted numerous statements (as well as statements contained in medical reports/examinations) and testimony regarding the nature of the physical assaults and harassment in-service, and the resulting behavioral/psychological effects. The Board also considers these statements to be both competent (as the Veteran is competent to report what he has experienced first-hand, such as being slapped/hit, or being made to do the "monkey stomp" throughout basic training) and credible (as the Veteran has consistently reported the stressful events in-service, as demonstrated in the evidence outlined below) supporting evidence of the in-service stressors. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this regard, the Veteran originally filed a claim for a nervous disorder in 1993; the contemporaneous VA examination reflects that the Veteran reported having reoccurring nightmares related to abuse and maltreatment by his drill instructors during basic training. See October 1993 VA Examination. Likewise, in a June 2004 VA treatment record (prior to the filing of his claim for PTSD in 2008), the Veteran reported that he continued to experience nightmares about his drill sergeant in-service. In an August 2004 VA treatment note, the Veteran stated that he had unknowingly slapped his girlfriend and himself in the face while sleeping; he also reported that he was still hearing his "old drill sergeant yelling in his ear to assume the smacking position and to get down and do the monkey stomps." In October 2008, the Veteran submitted a VA Form 21-0781, detailing his claimed stressors, and again reported that he was subjected to "intense and abusive harassment by the drill sergeants" during basic training at Fort Dix in 1971. The Veteran stated that Sergeant MK would hit him in the head, smack him around, and single him out for the "monkey stomps" until his knuckles were scraped. He reported that he was humiliated as he was often punished in front of the other trainees. He stated that the harassment and punishment occurred throughout his entire period of basic training. Throughout 2007 and 2008, VA treatment records reflect continued complaints of nightmares, hearing voices, and violent behaviors surrounding his memories of in-service "abuse" by his drill sergeant. See, e.g., December 2007 and April 2008 VA Treatment Notes. The treatment records also show diagnoses of PTSD (and schizophrenia). In addition, as noted above, the Veteran provided such consistent and competent testimony at his June 2011 before the undersigned Veterans Law Judge. Lastly, in June 2011, the Veteran submitted several lay statements in support of his claim. In a notarized statement, R.W., a fellow soldier who purportedly served with the Veteran during basic training, stated that he witnessed the Veteran "being smacked around" by their drill sergeant and made to do "monkey stands." R.W. stated that the Veteran became very withdrawn and emotional after these incidents. Also, a notarized statement was received in June 2011 from L.R. (the girlfriend that the Veteran identified as hitting in his sleep) in which she reported that the Veteran had punched her in the mouth one night while asleep. Upon awakening, the Veteran stated that he had been dreaming about how he had been abused by his drill instructor. She reported this incident to the Veteran's mother. The Veteran's mother told L.R. that she had noted a difference in the Veteran since returning home from the Army and that he was angry. Based on the foregoing, and specifically in light of: (1) the personnel records showing decreased performance; (2) the lay statements from R.W. and L.R., corroborating the Veteran's in-service and post-service accounts of in-service assault/abuse, respectively; and (3) the Veteran's competent and credible statements regarding the in-service stressors, the Board finds that there is sufficient corroborating evidence that the in-service personal assaults and harassment (i.e., in-service stressors) occurred. The Board recognizes that, on occasion, the Veteran has been deemed a poor historian, and that he now suffers from possible alcohol-impaired memory. See, e.g., October 2012 VA Examination. However, when considering the totality of evidence in this case, the Veteran's credibility is not substantially diminished by such findings. The Board will now address the remaining elements of the service connection claim, namely, evidence of a current PTSD diagnosis, and evidence of a link between current symptoms and the in-service stressor. 38 C.F.R. § 3.304(f) (2012); see also 38 C.F.R. § 4.125(a) (2012). In this regard, the October 2012 VA examiner found that neither PTSD nor schizophrenia were present. In so finding, the VA examiner stated that there was "no question" that the Veteran's in-service experiences with the drill sergeant were "traumatizing," and that he even re-experiences, or re-creates, these events currently in his mind. However, for reasons unknown to the Board and otherwise unexplained in the examination report, the examiner concluded that the Veteran's stressor did not meet the DSM-IV criteria. Therefore, PTSD was not diagnosed at that time. On the other hand, the Veteran's longtime treating VA psychiatrist, Dr. Q.Y.L., provided PTSD diagnoses in 2007 and 2008. See December 2007, July 2008, and October 2008 VA Mental Health Notes; see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). The Board finds Dr. Q.Y.L's psychiatric assessment and diagnosis of PTSD to be more persuasive and probative as to the issue of current diagnosis since she is the Veteran's longtime treating psychologist, and is likely very familiar with the Veteran's psychiatric and medical history than the VA examiner. Moreover, the October 2012 VA examiner provided little, if any, relevant reasoning as to why a PTSD diagnosis was not appropriate. For all of the reasons, the Board finds that a PTSD diagnosis is established as based on Dr. Q.Y.L's 2007 and 2008 mental health reports. With respect to the issue of nexus, in her December 2007 mental assessment of the Veteran, Dr. Q.Y.L. noted that that the Veteran currently experienced nightmares, heard voices, and became angry when he was reminded of the abuse sustained by his drill sergeant (misspelled in the dictated medical record as "surgeon") in service; Dr. Q.Y.L. stated that the Veteran mimicked the voice to her, and "it was scary." The Veteran also reported that he wished to kill the sergeant in his mind. Based on the Veteran's statements regarding his in-service stressor, as well as his current symptoms, Dr. Q.Y.L. diagnosed PTSD. This was again confirmed in July 2008 and October 2008 VA mental health treatment records. The Board finds that that Dr. Q.Y.L's reports sufficiently establish a link between the Veteran's current PTSD symptoms and the in-service stressors related to personal assault. In sum, the Veteran's stressors based upon personal assault have been corroborated by credible supporting evidence (i.e., personnel records showing decreased efficiency performance, and lay statements from a fellow service-member who observed the claimed stressors occur); in addition, Dr. Q.Y.L., a VA psychiatrist, has related the Veteran's current PTSD symptoms to the in-service abuse/assault. Accordingly, all three elements of a service connection claim for PTSD have been met here. The Board resolves any remaining doubt in the Veteran's favor and finds that the evidence supports service connection for PTSD. 38 U.S.C.A. § 5107(b). As such, the appeal is granted. In so finding, there can be no doubt that further medical inquiry could be undertaken with a view towards additional development of this claim, including perhaps undertaking an additional VA examination and medical opinion. However, this case has been on appeal for several years; again, the Veteran initially pursued this matter (in the form of a claimed "nervous disorder") in 1993, nearly 20 years ago. In addition, the October 2012 VA examination was conducted without medical opinion as to etiology because no diagnosis was provided. The Board finds that, in the interests of all involved, under the circumstances of this case and upon granting this Veteran the benefit of the doubt, the medical and lay evidence of record is sufficient to establish an in-service stressor based upon personal assault/harassment, and proof of a nexus, or relationship, between the current PTSD and the in-service stressor. Accordingly, service connection for an acquired psychiatric disorder, diagnosed as PTSD, is warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs