Citation Nr: 1306371 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 11-20 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from August 1973 to July 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2011, the Veteran was afforded a personal hearing before a hearing officer at the RO and in March 2012, the Veteran was afforded a hearing before the undersigned. Transcripts of the hearings are of record. FINDINGS OF FACT 1. In the July 2011 substantive appeal, the Veteran indicated that he was only appealing the claim for service connection for PTSD. 2. Medical evidence of record relates the Veteran's currently diagnosed PTSD to military service and the personal assault stressor asserted to have been experienced is supported by the evidence of record. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran with regard to the issue of entitlement to service connection for a back disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2011). 2. The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn issue Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the July 2011 substantive appeal, the Veteran indicated that he was only appealing the claim for service connection for PTSD and, therefore, the issue of service connection for a back disability is withdrawn. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. II. Service connection VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be competent evidence of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Service connection for certain chronic disorders, such as psychoses, may be established based on a legal "presumption" by showing that either disability manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV), credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. The Veteran's claim for service connection for PTSD involves a non-combat stressor. He claims that he experienced personal (sexual) assault during service at the hands of other service members. As the Veteran's claimed stressor is not combat-related, whether he engaged in combat with the enemy under 38 C.F.R. § 3.304(d) is not for consideration. Similarly, as the Veteran's claimed stressor does not include fear of hostile military action, 38 C.F.R. § 3.304(f)(3), is not for consideration. Where a Veteran alleges non-combat stressors, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The Veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). 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. VA will not deny a posttraumatic stress disorder 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. 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)(5). The Veteran has stated during the February 2011 and March 2012 hearings and in correspondence of record that, while in boot camp, he was physically assaulted and forced to perform sexual acts on other service members. In a June 2009 statement, the Veteran reported being forced to perform sexual acts on two squad leaders while in boot camp in 1973. This happened with a bayonet pointed at him and his life was threatened if he reported it. He turned to drugs and alcohol to forget what happened. In a detailed statement received in July 2009, the Veteran stated that sometime in September 1973, during training exercises, the Veteran almost caused serious injury to himself and an instructor. The Veteran was then beaten by his platoon commander to "teach" him to follow orders. The Veteran was shaken up, but did not seek medical treatment. Following that incident, the Veteran was ridiculed and threatened by members of his platoon. About a week later, the Veteran was assigned fire watch from 2:00am to 4:00am and was attacked in the shower area. His attackers put a bayonet to his throat and he was forced to perform sexual acts on three of the four privates who were there. They also threatened to attack him later when he was off-base. He was ashamed and afraid and wanted to get out of the Marine Corps, although he enlisted hoping to make a career of military service. He began drinking and using drugs to cope with the trauma. When he married, he had problems with intimacy and withdrew from his wife. His marriage eventually failed. He also had trouble holding a job and had nightmares and flashbacks of the sexual trauma. He also became depressed and suicidal. During the March 2012 hearing, the Veteran stated that he wanted to get out of the military because he feared for his life after the attack so he requested a medical discharge in order to continue his orthodontic treatment. Service treatment records are silent for any psychiatric treatment or findings. The Veteran was treated in February 1974 for an abrasion to the lower lip that was caused by a fight. In a May 1974 medical board report, the Veteran was recommended to either have his orthodontic bands removed and defer his treatment or be discharged from service. The Veteran agreed to accept discharge. Post-service treatment records show that the Veteran began receiving private treatment for depression in 2005. He was initially diagnosed as having severe major depressive disorder. In an April 2012 VA examination, the Veteran was diagnosed as having PTSD caused by a service-related stressor. He was also diagnosed as having bipolar disorder secondary to PTSD and polysubstance abuse in remission secondary to PTSD. The Veteran met all the criterion for PTSD which the examiner determined was based on the inservice stressful event of having been forced to perform a sexual act on his squad leader in the shower in September 1973 while two other enlisted men watched and being threatened if he reported the incident. In a letter dated May 2010, a VA social worker wrote that she first met the Veteran when he was hospitalized in a psychiatric unit for suicidal ideation. The Veteran presented like many others who enter the military striving to achieve, but following a military sexual trauma was unable to report the trauma and sought discharge due to the experience. He also was found to have many symptoms related to the sexual trauma experienced. She opined that it was more likely than not that the Veteran's experiences as a corrections officer exacerbated the military sexual trauma. The VA social worker stated in another letter dated September 2012 that the Veteran had been participating in a men's military sexual trauma program for two years. The Veteran's former wife, a registered nurse, submitted a statement in February 2012, corroborating the Veteran's assertion about their marriage. She stated that he struggled with physical intimacy and confided in her about the service trauma he experienced. As a registered nurse, she recognized classic signs of someone who had been through a traumatic event such as a sexual assault. After the Veteran took a job with the state prison and was assigned to the sex offender unit, he began drinking more and had flashbacks and nightmares about being assaulted. He lost his job and began talking about suicide. They divorced in 2006, but she remained close friends with the Veteran. The evidence of record supports the Veteran's claimed in-service personal trauma. The Veteran showed behavioral changes in service following the sexual assault as shown by the record of treatment of an abrasion on the lower lip caused by a fight. The VA social worker affirmed that the Veteran opting for a medical discharge less than a year after entering service was normal behavior for someone who had been through a personal trauma. The Veteran's reported sexual trauma was supported by his ex-wife who is a registered nurse and verified that his problems with intimacy were consistent with someone who experienced a sexual trauma and he had flashbacks and nightmares about that event. Moreover, the April 2012 VA examination showed that the Veteran met all the criterion of PTSD and concluded that it was caused by the reported inservice sexual trauma, which has been consistently reported for the most part. Accordingly, service connection for PTSD is warranted. ORDER Service connection for a back disability is dismissed. Service connection for PTSD is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs