Citation Nr: 1305569 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-39 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to February 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Veteran's Law Judge in October 2011 in Washington, D.C.; a transcript of the hearing is included in the claims file. Initially, the Board notes that it has considered the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. In that regard, the Board recognizes that the Veteran has been diagnosed with various psychiatric disabilities, including PTSD, bipolar disorder and depression. FINDING OF FACT The Veteran's PTSD is related to sexual assaults in service corroborated by a medical opinion, based on review of the evidence that the assaults occurred. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for 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. As to the claim for service connection for PTSD, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the Board has determined that the evidence currently of record is sufficient to establish the Veteran's entitlement to service connection for PTSD. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010) or 38 C.F.R. § 3.159 (2012). Legal Principles 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. § 1131; 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). Service connection for PTSD 'requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms an in-service stressor; and credible supporting evidence that the in-service stressor occurred.' 38 C.F.R. § 3.304(f). Generally, when the claimed stressor is not related to combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates the veteran's testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). However, 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. 38 C.F.R. § 3.304(f)(4). Further, when the claimed PTSD stressor is physical or sexual assault in service, credible supporting evidence may also consist of a medical opinion, based on review of the evidence that the personal assault occurred. 38 C.F.R. § 3.304(f)(4). 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 the 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's Service Treatment/Personnel Records for the period February 1971 to February 1973 including his DD-214 were reviewed. These records show that the Veteran was assigned to Germany for a period of time. There is no mention of any mental disorder or negative personnel actions shown in these records. No counseling was noted. The Veteran was honorably discharged from active duty in February 1973. The treatment reports from the Ft. Wayne VA Medical Center for the period of February 1987 to July 1987, shows treatment of depression and schizophrenia. The Veteran's stress was increased due to being evicted. The discharge summary dated in August 1987, from the Ft. Wayne VA Medical Center for the period of 10 days in July1987, shows the Veteran was admitted with a history of schizophrenia for severe depression and confusion with suicidal thoughts. The Veteran was an unemployed auto mechanic. He was started on medications and was discharged with a diagnosis of schizophrenia with depression. The letter dated in August 2005, to the Veteran from J.C., M.D., of the Ann Arbor VA Medical Center noted the Veteran had been followed by the VA (Ft. Wayne at first) since the 1980's. The Veteran had 4-5 previous psychiatric admissions. The Veteran had relied on Social Security benefits since 1984. She felt the Veteran is unemployable from a psychiatric illness. She also noted she first saw the Veteran for depression in January 1996. The Veteran's current claim was received in June 2009, by the VA Regional Office. A Duty to Assist development letter dated in July 2009, was sent to the Veteran with another Statement In Support Of Claim For Service Connection For Posttraumatic Stress Disorder (PTSD), VA Form 21-0781 to complete. The VCAA Notice Response dated July 10, 2009, from the Veteran noted the Veteran had no additional evidence to submit. In a June 2009 statement, the Veteran stated he felt like he "was treated as a piece of shit" at Ft. Knox. He reported while laying in the sun in front of the barracks, a bunch of GIs first stole his watch and he chased them to the barracks. The Veteran left the barracks on the advice of another. The Veteran reported a sergeant asked him to his quarters and offered a Veteran a beer, which the Veteran felt the sergeant drugged. The Veteran claimed that while drugged, he was assaulted. The Veteran stated he woke up and was taken back to his bunk and slept for two or three days. The Veteran reported he did not remember finishing the military classes he was in. A Formal Finding of a Lack of Information Required to Document the Claimed Stressor(s) Memo dated in August 2009 noted that they were unable to verify any claimed stressors based on the evidence of record. The VA Medical Center treatment reports show continued treatment of bipolar affective disorder and depression. During his admission in January 2009, the Veteran reported he was beaten by his father as a child and reported he was sexually abused repeatedly in the military. The Veteran also reported he was disabled due to a motorcycle accident in 1984. An April 2009 VA progress note included a diagnosis of PTSD. During an October 2011 Board hearing, the Veteran reiterated his assertion that his psychiatric disorder is related to the sexual trauma he experienced in service. In an October 2011 letter from the Veteran's ex-wife, she reported that when she married the Veteran in 1972, he was a smart, fun, outgoing, energetic person. However, while stationed in Germany she noticed he had changed. He had become very withdrawn and would not discuss what was bothering him. When he was home on leave, he would be happy, but that would change as it came closer for him to go return to Germany. After service he remained very withdrawn, and he would wake up in a cold sweat and shaking uncontrollably. She stated she never pushed him to talk about his problems, and he never did. In an October 2011 letter, signed by C. G., M.S.W., and J. C., M.D., the physician reported that the Veteran had a history of psychiatric admissions and was eventually diagnosed with bipolar affective disorder, type two. The Veteran became less able to work and his psychiatric symptoms began to increase. In 2004 he reported having a history of military sexual trauma (MST) to his psychiatrist for the first time. He became increasingly depressed and was referred to the Hospital Intensive Outpatient Program. He was admitted for hospitalization in January 2009. Following discharge, he was subsequently followed by Dr. C. in the Mental Health clinic. In April 2009, the Veteran was diagnosed with PTSD and bipolar II. He was treated with group and then individual therapy. The social worker related the story of the Veteran's claimed sexual assault. The social worker also reported that the Veteran described having multiple "nervous breakdowns" triggered by intrusive symptoms connected to the MST, and that he has been hospitalized multiple times over the years. The social worker and physician opined that the Veteran's difficulties are as likely as not related to the traumatic rape he experienced while service in the Army and he has chronic PTSD as a result of those symptoms. It is uncontroverted that the sexual assaults alleged by the Veteran were not reported to authorities. He did not report seeking medical treatment following the alleged assaults, and the STRs do not show any such treatment. The Veteran asserts he has PTSD due to sexual trauma during service. As noted, a VA psychiatrist has diagnosed him with PTSD associated with MST. However, just because a physician or other health care professional accepted the appellant's description of his active service experiences as credible and diagnosed the appellant as suffering from PTSD does not mean the Board is required to grant service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The existence of an event alleged as a 'stressor' that caused PTSD, although not the adequacy of the event to cause PTSD, is an adjudicative, not a medical, determination. Zarycki, 6 Vet. App. 91, 97-8. Nevertheless, when the claimed PTSD stressor is physical or sexual assault in service, credible supporting evidence may also consist of a medical opinion, based on review of the evidence that the personal assault occurred. 38 C.F.R. § 3.304(f). It appears in this case that the most recent VA examiner has rendered such a medical opinion, based on review of the evidence. The Board must examine the validity of this opinion. The Veteran is competent to report events during active service. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ('a legal concept determining whether testimony may be heard and considered') and credibility ('a factual determination going to the probative value of the evidence to be made after the evidence has been admitted'). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case the Board finds the Veteran's account of MST during active service, as presented to VA adjudicators and to various treatment providers, is not wholly incredible because it is inconsistent with objective evidence of record. The Board notes that although the Veteran's previous psychiatric treatment has primarily listed financial and family stressors, since 2009 he has repeatedly reported for purposes of treatment that he was sexually assaulted in service. This does seem credible, as he has discussed the incidents in therapy at length. That he has reported increasing more details of his incident as time passes makes him seem less credible on the one hand but this is possibly the result of therapy. As noted, the Veteran's ex-wife submitted a letter in 2011 stating the Veteran's personality changed while he was stationed in Germany. The Board finds the ex-wife's letter, written in October 2011, to be credible and thus of some probative value. The ex-wife observed a change in the Veteran during service. Notwithstanding the foregoing, the Board has attached significant weight to the October 2011 psychiatrist's opinion that indicates that the assaults occurred. Therefore, with resolution of reasonable doubt in the Veteran's favor, the Board finds that the alleged in-service sexual assaults did occur. The October 2011 VA psychiatrist has opined, based on a review of the record and the examination results, that the current PTSD is based, at least in part, on the personal assaults in service. This opinion is essentially uncontroverted inasmuch as it is based on a reported review of the entire record, and is accorded substantial probative weight. It results in the evidence being at least in equipoise as to whether that the current PTSD is due to personal assaults in service. As such, the Board will resolve reasonable doubt in the Veteran's favor and grant service connection for PTSD. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs