Citation Nr: 1312684 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-14 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from January 1976 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The October 2007 rating decision denied service connection for PTSD. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. After the issuance of the March 2010 Statement of the Case (SOC) and the submission of her April 2010 Substantive Appeal, the Veteran submitted additional evidence. She waived RO initial consideration of this evidence. 38 C.F.R. § 20.1304(c) (2012). The Veteran testified at a hearing in April 2011 before the undersigned. A copy of the transcript has been associated with the claims file. FINDING OF FACT The evidence of record, to include competent medical evidence and lay evidence, is at least in equipoise as to whether the Veteran has PTSD that began during active service or is related to an incident of service. CONCLUSION OF LAW The Veteran's PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, 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. 38 C.F.R. § 3.303(d) (2012). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV)); 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. 38 C.F.R. § 3.304. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of 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, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)(1) (2012). Furthermore, if the Veteran did not engage in combat with the enemy or if the claimed stressors are not related to combat, then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his or her testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996); Fossie v. West, 12 Vet. App. 1 (1998). According to the DSM-IV criteria, a diagnosis of PTSD requires that a veteran be exposed to a traumatic event, and that he/she experience a number of specified current symptoms. The traumatic event, or stressor, involves experienced, witnessed, or being confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. In addition, the response must involve intense feelings of fear, helplessness, or horror. The Veteran has been diagnosed with PTSD by a VA psychiatrist. VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standard for establishing the in-service stressor required for PTSD claims. Service connection for PTSD may now be granted if the evidence demonstrates (1) a current diagnosis of PTSD (rendered by an examiner specified by the regulation); (2) an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically related to the Veteran's fear of hostile military or terrorist activity by a VA psychiatrist or psychologist, or one contracted with by VA; and (3) evidence that the Veteran's PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA. Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,852 (July 13, 2010). Because the Veteran's reported stressor does not involve the fear of hostile military or terrorist activity, the new regulations do not apply and verification of her non-combat stressor is required. The Veteran's reported stressor is that in June 1979, while serving in Panama, she was sexually assaulted by a civilian. Special consideration must be given to claims for PTSD based on personal assault. Patton v. West, 12 Vet. App. 272 (1999). In particular, the United States Court of Appeals for Veterans Claims (Court) noted that the provisions in M21-M1, Part IV, Subpart ii, Section D.17, which address PTSD claims based on personal assault, are substantive rules which are the equivalent of VA regulations and must be considered. Id.; see also YR v. West, 11 Vet. App. 393, 398-99 (1998). In personal assault cases, more particularized requirements are established regarding the development of "alternative sources" of information, as service records "may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities." VA ADJUDICATION PROCEDURAL MANUAL M21-M1, Part IV, Subpart ii, Section D.17 (formerly M21-1, Part III, para. 5.14c(5)). For claims involving service connection for PTSD due to personal assault, VA regulations provide, in pertinent part, as follows: If a post-traumatic stress disorder 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 post-traumatic 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). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). As noted above, the Veteran has been diagnosed with PTSD as a result of her in-service personal assault. To corroborate her stressor, the Veteran has submitted medical and lay evidence. In December 1993, she wrote a journal entry documenting that her father abused her as a child. She wrote that her mother did not believe her when she informed her of the abuse. She stated that her mother did not support her when she was assaulted in Panama. She regretted that the attack happened and stated that she hated the perpetrator. An October 1997 therapy record shows that the Veteran reported blaming herself for the attack. In October 2007, the Veteran's aunt, stated that prior to service, the Veteran was "bubbly" and "fun-loving." But, when the aunt saw her in October 1979 for her sister's wedding, she was "despondent" and "tearful." The Veteran's aunt stated that she thought something terrible happened to the Veteran in service. In October 2007, the Veteran's mother, stated that she thought the Veteran enjoyed being in the military but since her discharge she had had mood swings. She stated that the Veteran informed her that she was sexually assaulted while stationed in Panama. In June 2008, the Veteran's husband of 13 years, stated that while they were dating and after they got married, the Veteran experienced symptoms of depression and anxiety. He stated that she sometimes was hospitalized two or three times a year. At her March 2009 RO hearing, she testified that she was attacked while serving in Panama. In April 2009, the Veteran's aunt wrote a second letter to VA. She stated that in 1979, at the Veteran's sister's wedding, she noticed a "dramatic change" in the Veteran's personality. She asked the Veteran if she had been raped and she answered in the affirmative. The aunt stated that no details were discussed and she never mentioned it to the Veteran again. At her April 2011 hearing before the undersigned, the Veteran testified that she was sexually assaulted in June 1979 while serving in Panama. Her attacker was a civilian with whom she had been set up on a blind date. She testified that she did not report the attack because she was afraid no one would believe her and she blamed herself. She stated that she went home for her sister's wedding and confided in her aunt. The Veteran testified that she had had psychiatric problems since she was assaulted and required hospitalization every year. The Veteran and her family are competent to discuss observable symptoms such as changes in the Veteran's behavior. The Veteran is also competent to discuss her assault. Layno v. Brown, 6 Vet. App. 465 (1994). Further, the Board finds that the combined lay evidence is credible with regard to the Veteran's reported stressor. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Her stressor is considered corroborated. In September 2009, a VA psychiatrist, stated that the Veteran has PTSD due to sexual assault in the military. She noted that the Veteran did not report the incident because she did not trust her chain of command. Her symptoms included flashbacks, intrusive thoughts, guilt about the incident, anger, lack of trust, and fear. The VA psychiatrist noted that these symptoms were not present prior to service. The doctor concluded that the Veteran's PTSD was caused by her reported stressor of being sexually assaulted in service. This establishes a link between her PTSD and the in-service personal assault. 38 C.F.R. § 4.125. Because her reported stressor of military sexual trauma is considered corroborated and a VA examiner has linked it to her diagnosis of PTSD, service connection for PTSD is warranted. Where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown , 5 Vet. App. 413, 421 (1993). Given the granting of the benefit, any further development or notification action under the Veterans Claims Assistance Act of 2000 (VCAA) would not avail the claimant. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2010). ORDER Service connection for PTSD is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs