Citation Nr: 1312488 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 08-21 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of a fracture of the inferior pubic ramus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran had active service from December 1992 to October 1994 and from August 2000 to July 2002, and additional unverified reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 decision of the Houston, Texas, Regional Office (RO) which denied the Veteran's claim of entitlement to service connection for PTSD. The Veteran filed her original claim in July 2005 for service connection for PTSD. In a September 2011 statement, the Veteran asserted entitlement to service connection for an acquired psychiatric disorder and specifically referred to an in-service diagnosis of depression. At that time, she had already perfected her July 2005 claim of entitlement to service connection for PTSD. Of record were post-service diagnoses of depression. Thus, the Board will expand her original claim of entitlement to service connection for PTSD to include depression, and her September 2011 statement is thus not considered a new claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that, when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"). The Veteran was scheduled to appear before a Decision Review Officer (DRO) at the RO in San Antonio, Texas, on October 17, 2011. However, the Veteran did not report to the hearing. The Veteran submitted a timely Notice of Disagreement (NOD), dated in July 2011, as to the July 2011 RO denial of her claim of entitlement to a disability rating in excess of 10 percent for service-connected residuals of a fracture of the inferior pubic ramus. To date, it appears that the RO has not issued a Statement of the Case (SOC) as to the issue. Where a NOD has been filed with regard to an issue, and a SOC has not been issued, the appropriate Board action is to remand the issue for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). The issue of entitlement to a disability rating in excess of 10 percent for service-connected residuals of a fracture of the inferior pubic ramus, addressed in the REMAND portion of the decision below, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The probative evidence of record indicates that the Veteran's acquired psychiatric disorder, to include PTSD and depression, is related to active service, specifically, an in-service personal assault. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD and depression, was incurred in active service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. Service Connection The Veteran presently seeks service connection for an acquired psychiatric disorder, maintaining that her current psychiatric symptoms are related to an in-service personal assault. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including psychoses, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2012). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.384 (2012), the term "psychosis" is defined so as to include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. Thus, the Veteran's acquired psychiatric disorder, diagnosed during the appeal as PTSD and depression, has not been diagnosed as psychosis; a disability for which service connection may be granted on a presumptive basis. 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 and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. When the claimed PTSD stressor is an in-service personal assault (e.g., physical or sexual assault), evidence from sources other than the Veteran's service records may corroborate the in-service stressor/incident. See 38 C.F.R. § 3.304(f)(5). 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. Id. Additionally, in the context of a PTSD claims based on personal assault, the United States Court of Appeals for the Federal Circuit (Federal Circuit) distinguished the holding in Moreau v. Brown, 9 Vet. App. 389 (1996), and held "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011); see also Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006); Patton v. West, 12 Vet. App. 272, 280 (1999). Thus, courts have made plain that, in the context of a PTSD service connection claim based on in-service personal assault, a favorable medical evidence diagnosing PTSD based on the Veteran's account of in-service assault must be weighed against all other evidence of record when determining whether the claimed in-service personal assault has been corroborated. See Menegassi, 638 F.3d at 1382 n.1. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. 498, at 511, aff'd per curiam, 78 F.3d 604. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts, in her May 2006 VA Form 21-0781a, Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault, that she was assigned to the 17th signal battalion in Germany, in 1993 and 1994, during her first period of active service. She reported that on her first day assigned to a new duty station, she was approached by a higher-ranking service member and repeatedly told to take a shower with him before he had to go back to the field. She reported that another higher-ranking service member tried to kiss her and touch her bottom. She asserted that finally, a first lieutenant of another company asked her lieutenant to try to get him and the Veteran "together," and she told her lieutenant that she was not interested. She reported that later, she was assigned to assist the first lieutenant in the field and he came into her tent and raped her after midnight on one occasion. She noted that she did not remember the names of the individuals, and reported that she went up the chain of command with her complaints and that one of the men was transferred. She asserted that she was isolated and treated badly. She complained of subsequent: break-up of primary relationship; unexpected social or economic change; visits to counseling or medical staff without a diagnosis; sudden request for a change in workplace; increased use of leave; change in performance; depression, anxiety, or panic; increased use of over-the-counter medication; substance or alcohol use; increased disrespect for authority; increased obsessive behavior; and pregnancy tests or tests for sexually transmitted diseases. In her September 2011 statement, the Veteran also reported in-service depression during her second period of active service. The Veteran thus provides a competent and credible account of psychiatric symptomatology, including in-service onset of psychiatric symptoms and personal assault. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau, 492 F.3d 1372, 1377. There is no evidence of any disciplinary or investigatory actions by her service department as to the Veteran's claimed in-service personal assault. However, she has provided a generally consistent account of being raped by a higher-ranking service member during VA treatment and treatment at a Vet Center. It is significant that she was diagnosed with marital problems in June 1993; and while report of which was silent for any psychiatric diagnoses; she was referred for a mental status evaluation in September 1994. She also sought screening for a sexually transmitted disease in October 1993. While she reported that she had an encounter with a boyfriend with visible lesions, it is plausible that the Veteran did not choose to discuss her rape at that time. It is also significant that the Veteran, in May 1994, was noted to have a "stress-related disorder," as she had multiple ailments without diagnoses. Records dated after her first period of active service, during her reserve service, indicate that she was cited for at least 2 unexcused absences in November 1999 and May 2000, experienced domestic abuse by her husband in January 2001, and sought behavioral health treatment and was seen by a social worker. Records of behavioral health treatment or social work visits are not of record. During her second period of active service, the Veteran was cited for at least 1 unexcused absence in August 2000 and diagnosed with depression in November 2001. In May 2002, she was referred to behavioral health for an evaluation by her command due to her disrespectful treatment of others. There is no record of her evaluation, however, her DD-214, her service separation form, indicates that she was discharged from active service for a personality disorder. At the time of her service separation examination in June 2002, she complained of depression. Considering the evidence as a whole, the Board finds the Veteran's account as to these matters, specifically, her claimed in-service personal assault, competent, credible and thus probative evidence in her favor. See Buchanan, supra; see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (elucidating that VA must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to). The only medical opinions pertinent to the question at hand weigh in favor of the Veteran's claim. In July 2004, she obtained psychiatric treatment from a Vet Center and reported military sexual trauma. During a July 2005 visit for VA treatment, the Veteran reported her in-service personal assault and was diagnosed with PTSD. On VA examination in July 2007, the Veteran described her childhood abuse and interpersonal problems, as well as her in-service personal assault. She was diagnosed with PTSD. The examiner provided recitation of the specific diagnostic criteria for PTSD the Veteran met, and included report of her depressive symptoms in her mental status examination. While the examiner reported that the Veteran's service treatment records were silent for any evidence of her claimed in-service personal assault and that he was unable to verify the stressor, the examiner reported that such was indeed the stressor giving rise to the Veteran's PTSD. The examiner also diagnosed the Veteran with borderline personality disorder and discussed her related symptoms. In numerous subsequent VA treatment records, the Veteran's PTSD diagnosis was included with a notation "second to military sexual trauma." Depression followed such as an Axis II diagnosis. Here, the medical opinion by the July 2007 VA examiner, that the Veteran had PTSD related to the stressor of her in-service personal assault, is credible because it is based on a thorough review of the file and available treatment records and the examiner offered a reasonable medical basis for his conclusions. Absent credible evidence to the contrary, the Board is not in a position to further question the results of this examination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). As there is no competent medical evidence contrary to this probative medical opinion, the Board finds the claimed in-service personal assault has been confirmed and sufficiently related to the Veteran's current diagnosis of PTSD with an Axis II diagnosis of depression. See Menegassi, supra. The Board notes here that the VA examiner did not specifically diagnose the Veteran with depression at the time of the VA examination, and the VA treatment providers did diagnose the Veteran with depression did not specifically attribute such to military sexual trauma, as they did her PTSD. However, it remains that the Veteran was diagnosed with depression during a period of active service, the VA examiner included report of the Veteran's depressive symptoms in her mental status examination resulting in a diagnosis of PTSD, and the VA treatment providers assigned the Veteran's depression an Axis II designation, immediately following her Axis I diagnosis of PTSD. As noted above, the Veteran was discharged from her second period of active service for her personality disorder, and on VA examination in July 2007, she was diagnosed with borderline personality disorder. However, personality disorders are considered congenital defects and are not diseases for VA purposes. Therefore, the adjudication and consideration of the merits of the Veteran's claim need not address any theory of entitlement based on a personality disorder, as this is precluded by relevant VA regulation. 38 C.F.R. §§ 4.9, 4.127 (2012). (CONTINUED ON THE NEXT PAGE) In sum, the Veteran has provides a competent and credible account of psychiatric symptomatology and in-service personal assault. The competent medical evidence of record sufficiently corroborates her account of in-service personal assault and relates currently diagnosed PTSD with an Axis II diagnosis of depression to the in-service event. Thus, the Board finds that the evidence sufficiently satisfies the criteria to establish service connection for an acquired psychiatric disorder, to include PTSD and depression, and the Veteran's claim is granted. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER Service connection for an acquired psychiatric disorder, to include PTSD and depression, is granted. REMAND Additional development is needed prior to further disposition of the claim. As discussed above, following the July 2011 rating decision's denial of a disability rating in excess of 10 percent for service-connected residuals of a fracture of the inferior pubic ramus, the Veteran expressed her dissatisfaction with the decision's determination in a timely NOD filed in July 2011. While the Veteran filed an additional claim of entitlement to the same benefit in August 2012 and such was adjudicated by a November 2012 rating decision; it remains that there is no evidence that the Veteran was ever furnished with a SOC with respect to this issue. Consequently, the Board finds that this issue must be remanded for the issuance of a SOC. Manlincon, 12 Vet. App. 238. Accordingly, the case is REMANDED for the following action: Issue a SOC with respect to the issue of entitlement to a disability rating in excess of 10 percent for service-connected residuals of a fracture of the inferior pubic ramus. The Veteran and her representative should be advised of the need to file a Substantive Appeal following the issuance of the SOC if the Veteran wishes to complete an appeal as to this claim. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S.L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs