Citation Nr: 1309263	
Decision Date: 03/19/13    Archive Date: 04/01/13

DOCKET NO.  07-13 589	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and major depressive disorder.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Fleming, Counsel



INTRODUCTION

The Veteran had active military service from June 1964 to June 1968.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  In that decision, the RO denied the Veteran's petition to reopen a previously denied claim for service connection for what it identified at the time as major depressive disorder.  The Veteran appealed the denial, and the Board reopened the previously denied claim and remanded it on its merits via a January 2011 decision.  As discussed in the January 2011 Board decision, the United States Court of Appeals for Veterans Claims (Court) has held that, although an appellant's claim identified posttraumatic stress disorder without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors-including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim.  The Court reasoned that the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, however described, causes him.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).

In this case, although the Veteran filed a claim seeking service connection for depression specifically, he has been diagnosed with and has sought treatment for both major depressive disorder and posttraumatic stress disorder (PTSD).  Pursuant to the Court's holding in Clemons that VA must consider alternative psychiatric disorders within the scope of an initial claim of service connection for a specific psychiatric disorder, the Board thus found in the January 2011 decision that the Veteran's service connection claim is more accurately classified as one for an acquired psychiatric disorder, to include both PTSD and major depressive disorder.  See Clemons, 23 Vet. App. 1 (2009).  As such, and in light of the Court's holding in Clemons, the Board amended the issue in the January 2011 decision to read as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder.  

As noted, the Board remanded the case in January 2011 for further notification, evidentiary development, and adjudication.  In the remand, the Board instructed the agency of original jurisdiction (AOJ) to provide the Veteran with Veterans Claims Assistance Act of 2000 (VCAA) notice, obtain records of the Veteran's award of benefits from the Social Security Administration (SSA) and other treatment records, obtain an expert medical opinion concerning the claimed acquired psychiatric disorder, and then re-adjudicate the claim.  The AOJ provided the Veteran a VCAA-compliant notice letter in August 2010, obtained the identified treatment and SSA records, and obtained a VA medical examination in April 2011.  The Veteran was then provided a supplemental statement of the case in January 2012, in which the AOJ again denied the Veteran's service connection claim.  Thus, there is compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).  


FINDING OF FACT

Resolving all doubt in the Veteran's favor, PTSD with major depression is attributable to his active military service.


CONCLUSION OF LAW

PTSD with major depression was incurred during active service.  38 U.S.C.A. §§ 1111, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board notes at the outset that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et 

seq; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2012).  This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements.  Without deciding whether the notice and development requirements of the VCAA have been satisfied with respect to the claim for service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, it is the Board's conclusion that the VCAA does not preclude the Board from adjudicating the claim.  This is so because the Board is taking action favorable to the Veteran by granting service connection for PTSD with major depressive disorder, which represents a full grant of the issue on appeal.  A decision therefore poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92 (July 24, 1992), 57 Fed. Reg. 49,747 (1992).

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  Generally, service connection requires:  (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999).  Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition such as a psychosis during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  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 afforded the claimant.  38 U.S.C.A. § 5107(b).

Service connection for post-traumatic stress disorder (PTSD) requires:  (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor.  See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997).

Where it is determined that a Veteran was engaged in combat with the enemy and the claimed stressor is related to such combat, the Veteran's lay testimony regarding the claimed stressor is accepted as conclusive as to its actual existence, absent clear and convincing evidence to the contrary.  See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f).  However, if, as in the present case, the Veteran did not engage in combat, his alleged stressors must be established by official service records or other credible supporting evidence.  38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994).  Additionally, if a stressor claimed by a Veteran is related to the Veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not 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.  Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)); 75 Fed. Reg. 41,092 (July 14, 2010) (correcting the effective date of the rule published on July 13, 2010).  For purposes of this section, "fear of hostile military or terrorist activity" means that "a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, . . . and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror."  75 Fed. Reg. at 39,852.  

However, in this case, the Veteran has not contended that his stressor is related to a fear of hostile military or terrorist activity or that he served in combat, nor does the evidence show that he served in combat or was exposed to hostile or terrorist activity.  Rather, he asserts that he was sexually assaulted in service and that this assault caused his acquired psychiatric disorder.

Cases involving allegations of a personal assault fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran complains.  See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999).  As noted under Part III.ii.1.D.17 of VA's Adjudication Procedure Manual, M21-1 MR, personal assault is an event of human design that threatens or inflicts harm.  Examples of this include rape, physical assault, domestic battering, robbery, mugging, and stalking.  Id.  Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault.  See YR v. West, 11 Vet. App. 393, 399 (1998).  The Manual also notes that since personal assault, to include sexual assault, can be an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, making it difficult to obtain direct evidence, and requiring that the alternative evidence be sought.  Id.

Under § 3.304(f)(3), 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.  See 38 C.F.R. § 3.304(f)(3).

The Veteran's service treatment records are silent as to any complaints of or treatment for symptoms of PTSD or any other psychiatric disorder.  Post-service medical records, however, reflect that several VA and private medical professionals have identified the Veteran as suffering from a variety of acquired psychiatric disorders, including both PTSD and major depressive disorder.  A review of the post-service medical evidence reveals that the Veteran was first seen in 1969-approximately 13 months after his separation from service-at which time he was hospitalized and diagnosed with "severe depressive reaction."  He has been hospitalized on multiple occasions following his separation from service, including multiple suicide attempts.  He has been diagnosed on multiple occasions with depressive reaction, depressive neurosis, and was first assigned a diagnosis of major depressive disorder in January 1996.  He was diagnosed with PTSD in September 2008 and again in July 2009.  Report of VA inpatient treatment the Veteran underwent in July 2008 further reflects a diagnosis of major depressive disorder; at that time he reported having been raped in service but not having reported it out of fear and shame.  He stated at an October 2008 treatment visit that he felt better having talked about his "past trauma."  

The Veteran underwent VA psychological examination in April 2011.  Report of that examination notes that the Veteran reported experiencing decreased concentration, nightmares, and occasional flashbacks.  He reported having been sexually assaulted by three fellow sailors while on board ship during active duty.  The examiner noted that the Veteran had been hospitalized on multiple occasions following service for psychiatric problems, including at least one suicide attempt.  The examiner noted that the Veteran experienced daily intrusive thoughts and memories concerning the in-service rape.  The Veteran also complained of hearing weapons fire while on active duty and seeing a Filipino national get shot and killed; however, the examiner opined that the in-service sexual assault was his primary stressor.  The examiner found the Veteran to be withdrawn and isolated and to avoid crowds, including family gatherings.  Psychological evaluation found the Veteran to have a sad mood, with a blunted to flat affect with no evidence of thought disorder, hallucinations, delusions, panic attacks, or inappropriate behavior.  The Veteran's memory was found to be somewhat impaired.  The examiner 

diagnosed the Veteran with PTSD and major depressive disorder and found his social and economic situation to be consistent with those diagnoses and with his mental status examination.  The examiner noted that the Veteran's PTSD was the primary diagnosis but found his depressive disorder had become the "predominant diagnosis in terms of what is affecting him the most now."  The examiner specifically found that the Veteran's in-service sexual assault led to his PTSD and that his major depressive disorder was secondary to PTSD.

The Veteran has also stated on multiple occasions that he was raped in service by three fellow sailors but that he did not report the assault to an board ship due to his fear and shame at having been attacked.  He has further stated that he worked for an understanding supervisor during his remaining tour of duty, who assigned him to an undemanding position in the ship's laundry room.  In support of his claim, the Veteran has submitted a letter from his sisters, dated in February 2012, and from a service buddy, dated in October 2009.  In their letter, his sisters state that the Veteran's personality was quite different when he returned from service, including mood swings, isolation, and depression.  They stated that he was a "shell" of the person he had been before entering active duty.  Similarly, the Veteran's service buddy stated in his October 2009 letter that the Veteran confided the in-service rape to him and that he was "horrified and concerned for [the Veteran's] safety."  The friend stated that he remembered the incident after so many years because he was "so disturbed" that the attack occurred.

In this case, the Veteran's service treatment records reflect that he was not diagnosed with any chronic psychiatric problems during his period of active duty.  However, the competent medical evidence has identified that the Veteran carries a current diagnosis of PTSD with major depressive disorder that is likely linked to his time on active duty.  The VA examiner who provided the medical opinion in April 2011 opined that the Veteran's in-service sexual assault was a sufficient stressor to cause his current PTSD with major depressive disorder.  Importantly, this finding is not contradicted by any medical evidence of record.  The Board thus concludes that the Veteran likely suffers from PTSD with major depressive disorder that is related to his time on active duty.

Here, the Board is inclined to give considerable weight to the findings of the VA examiner who provided the April 2011 medical opinion and concluded that the Veteran's PTSD and depressive disorder are likely related to his experiences on active duty.  In this regard, the Board notes that the April 2011 examiner's opinion is based on a review of the Veteran's medical history and records, as well as the examiner's own expertise.  The Board also notes that, as discussed above, the United States Court of Appeals for Veterans Claims has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  See Clemons v. Shinseki, supra.  

In sum, and giving the Veteran the benefit of the doubt, the Board finds that the Veteran has a current diagnosis of PTSD with major depressive disorder that has been linked to his active duty by competent and probative medical opinion.  The VA examiner and multiple VA and private treatment providers have diagnosed the Veteran with PTSD with major depressive disorder.  The Board asked the VA examiner to review any behavioral changes that occurred at or near the time of the stressor(s) in service that could possible support the occurrence of the incident(s).  The April 2011 VA examiner specifically concluded that the symptoms of PTSD are related to the Veteran's in-service stressor, and that his symptoms of major depressive disorder developed secondary to his PTSD.  Given that the April 2011 VA psychiatrist provided a clear diagnosis of PTSD with major depressive disorder that he found to be linked to the Veteran's in-service sexual assault, the Board thus concludes that the competent and probative medical evidence supports a conclusion that the Veteran does in fact suffer from PTSD with major depressive disorder that is linked to his period of active duty.  In light of these conclusions, and resolving reasonable doubt in the Veteran's favor, the Board thus finds that there is satisfactory evidence that the Veteran has PTSD with major depressive disorder that is the result of disease or injury incurred in active military service.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).  



ORDER

Entitlement to service connection for posttraumatic stress disorder with major depressive disorder is granted.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs