Citation Nr: 1303367 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 08-19 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from March 1976 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Nashville, Tennessee, which denied service connection for PTSD. In November 2009, the Veteran testified at a Travel Board hearing before a Veterans Law Judge at the RO. Unfortunately, an accurate transcript of the hearing testimony could not be made. In February 2010, the Board remanded this matter for further development. As part of the remand, the Board noted that a transcript of the prior hearing was not available for review. In March 2012, the Veteran requested that he be scheduled for a Travel Board hearing. As a result, the Board remanded this matter for the scheduling of the requested Travel Board hearing. The Veteran was scheduled for a Travel Board hearing in July 2012 and did not appear for the requested hearing. In a July 2012 statement in support of claim, the Veteran's representative indicated that the Veteran would not appear for the hearing and that the Veteran requested that his claim be sent to the Board for a decision. FINDINGS OF FACT 1. The competent and credible evidence supports the Veteran's claimed in-service stressor (military sexual trauma (MST)). 2. The Veteran has been diagnosed with PTSD as the result of military sexual trauma. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify Service connection is being granted and there is no need to discuss VA's duties of notice and assistance. Service Connection Service connection is granted if the evidence shows a current disability resulted from an injury or a disease that was incurred or aggravated during active military service in the line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Stated somewhat differently, direct service connection generally requires: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). A disorder may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Continuity of symptomatology is required where the condition noted in service is not shown to have been chronic or this is at least legitimately questionable. Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity (permanency) of disease or injury in service and, in turn, link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Evidence relating a current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service connection for PTSD, in particular, requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). An opinion by a medical professional based on a post-service examination can be used to establish the occurrence of a stressor. 38 C.F.R. § 3.304(f)(5) [formerly subpart (f)(3)]; VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section H, part 30(b), (c), (e) (Aug. 1 ,2006). Furthermore, the occurrence of the claimed stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102. Because personal assault is an extremely personal and sensitive issue, many incidents are not officially reported, which creates a proof problem with respect to the occurrence of the claimed stressor. In such situations it is not unusual for there to be an absence of service records documenting the events the Veteran has alleged. Therefore, evidence from sources other than the Veteran's service records may corroborate an account of a stressor incident. Patton, 12 Vet. App. at 277. 38 C.F.R. § 3.304(f)(5) [formerly subpart (f)(3)] specifically provides that if a PTSD claim is based on in-service personal or sexual 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. Id. VA will not deny a PTSD claim that is based on in-service personal or sexual assault without first advising the claimant that evidence from sources other than the claimant'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. 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 or sexual assault occurred. Id. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). See also Pentecost v. Principi, 16 Vet. App. 124 (2002). As stated by the Court in Bradford v. Nicholson, 20 Vet App 200 (2006), § 3.304(f)(5) [formerly subpart (f)(3)] provides "unequivocally" that "VA will not deny a [PTSD] claim that is based on in-service personal assault" without first providing the requisite notice. Treatment records associated with the claims folder contain numerous references to treatment for drug abuse on multiple occasions. The Veteran is currently in receipt of Social Security Disability benefits, with the primary diagnosis being substance abuse, alcohol, and the secondary diagnosis being substance abuse, drugs. Service connection for a drug induced psychotic disorder was denied in an August 2002 rating determination and was again denied on a new and material basis in February 2004 and January 2005 rating determinations. In March 2007, the Veteran filed a claim for depression as a result of a sexual assault that occurred while he was stationed at Ft. Hood in 1976. He stated that he was awoken at 5 A.M. one morning to find another soldier by the name of A. H. performing oral sex on him. The Veteran reported that he had been diagnosed as having manic depression and that the trauma was a factor leading to that diagnosis. VA outpatient treatment records reveal that, at January and February 2008 VA outpatient visits, the Veteran reported having been sexually assaulted while at Fort Hood in 1976. The February 2008 treating physician rendered diagnoses of chronic paranoid schizophrenia by history; PTSD; and polysubstance dependence in partial remission. VA treatment records subsequent to this time also noted diagnoses of PTSD. In a May 2008 statement, the Veteran also indicated that a friend of his, N. F., was killed while in service. He noted that he did not know what caused his death but stated that N. F. frequently talked to him. In its February 2010 remand, the Board observed that the Veteran asserted two stressors during service. First, he claimed that he observed a fellow soldier named N. F. die during service. Second, he claimed he was sexually assaulted by a solider named A. H. The Board indicated that additional development with respect to these two stressors was required, to include attempting to verify the death of service man, N. F., during the Veteran's period of service, and to attempt to verify the nature of the discharge of service member A. H. The Board also requested that the Veteran be afforded a VA examination to determine the nature and etiology of any current psychiatric disorder, and its relationship, if any, to his period of service. The Board also expanded the issue on appeal from service connection for PTSD to service connection for an acquired psychiatric disorder, to include PTSD, pursuant to the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In support of his claim, the Veteran submitted two letters, both received in March 2010. N. S., the Veteran's fiancé, indicated that the Veteran had broken down and told her about the sexual assault he had experienced in service. She noted that the Veteran reported dreaming about killing A. H. almost every night. She stated that after being told of his molestation she understood his pain of being a victim as she had been a victim of molestation herself. M. J., the Veteran's mother, indicated that the Veteran had told her of the inservice incident. She noted that the Veteran had not been the same since he returned from the Army. In June 2010, the U. S. Army Crimes Record Center indicated that it had no record of any incident related to the death of N. F. Service personnel records of A. H. reveal that he was at Ft. Hood at the time of the claimed sexual incident by the Veteran. The records received reveal that A. H. was discharged following an assault with a knife on a soldier other than the Veteran. In conjunction with the remand, the Veteran was afforded a VA examination in February 2011. The examiner indicated that the claims folder was available and had been reviewed. The examiner noted that the Veteran related an incident of homosexual assault after having been in the Army for six to seven months. He stated that he and some friends had gone out drinking and he woke up with someone performing oral sex on him. He stated that this soldier was beaten up by several other soldiers. The Veteran reported that as a result of this incident, he had dreams about killing this man and that he also hated homosexuals. He further reported an incident where he was in the back of a vehicle driven by another soldier that was involved in an accident, at which time the Veteran hurt his back and had to be helivaced out. He also noted that a friend of his fell out and died due to smoking PCP. The Veteran indicated that he found the sexual assault particularly traumatic and named others who were witnesses to the event. He reported having shock, severe anger, and wanting to kill the perpetrator. The examiner rendered Axis I diagnoses of psychotic disorder, NOS, rule out cocaine induced; cocaine dependence in remission; polysubstance dependence; PTSD related to MST. He stated that the Veteran's PTSD symptoms appeared to be related to the MST. He noted that the psychotic disorder was difficult to categorize, but seemed more consistent with a drug-induced condition than with schizophrenia, as there was no indication of prodromal manifestations of schizophrenia. It was observed that a mental health evaluation as late as 1996 did not indicate any psychosis in the Veteran's presentation, and chronic cocaine use could definitely result in persistent psychosis. It was also indicated that his Axis II personality issues likely contributed to the situation. The evidence is not unequivocal. The fact that the Veteran first filed a claim for service connection for PTSD in January 2007, several decades after leaving service, and after filing a claims for other psychiatric disabilities with no prior mention of the inservice sexual assault, weighs against his claim. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). However, the evidence is at least in equipoise. The Board finds no adequate basis to reject the competent lay statements and medical evidence of record that is favorable to the Veteran. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Given the circumstantial evidence of record corroborating the reported military sexual trauma, as well as evidence of record showing a current diagnosis of PTSD related to the claimed trauma, the Board finds that the in-service stressor identified by the Veteran has been corroborated sufficiently to warrant service connection for PTSD. ORDER Service connection for PTSD is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs