Citation Nr: 1312901 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-18 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depressive disorder and psychosis, claimed as due to an in-service sexual assault. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1970 to January 1972. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in part, denied the Veteran's service-connection claim for PTSD. The Veteran disagreed with the RO's determination, and perfected an appeal as to this issue. The Veteran testified at a Travel Board hearing which was chaired by the undersigned at the Muskogee RO in November 2010. A transcript of the hearing has been associated with the Veteran's VA claims folder. The RO originally developed the Veteran's service-connection claim as one for PTSD alone. Notably however, the Veteran's post-service treatment records demonstrate that the Veteran has been diagnosed not only with PTSD, but also with depressive disorder and a psychosis not otherwise specified (NOS). As such, the Board is expanding the Veteran's claim at this time to include consideration of whether service connection may be awarded for any acquired psychiatric disorder to include PTSD, depressive disorder and a psychosis. Indeed, the United States Court of Appeals for Veterans Claims (Court) has determined that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). For the sake of clarity, the Board has recharacterized the issue on appeal to reflect this change above. FINDING OF FACT The evidence of record supports a finding that a relationship exists between the Veteran's currently diagnosed acquired psychiatric disabilities and a corroborated in-service sexual trauma stressor. CONCLUSION OF LAW The Veteran's current acquired psychiatric disorders, to include PTSD, depressive disorder and psychosis NOS, were incurred during active duty service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, though, the Board need not discuss whether there has been VCAA compliance because the claim is being granted in full. See, e.g., 38 C.F.R. § 20.1102 (2012) ("An error or defect in any decision by the Board of Veterans' Appeals which does not affect the merits of the issue or substantive rights of the appellant will be considered harmless and not a basis for vacating or reversing such decision."). Legal criteria In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish service connection a claimant must generally show: "(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). In particular, establishment of service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition, (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). Where a PTSD claim is based on an in-service personal assault, credible supporting evidence that the claimed stressor actually occurred is still required. Significantly however, evidence from sources other than the Veteran's service records may corroborate the 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. 38 C.F.R. § 3.304(f)(5); see also Patton v. West, 12 Vet. App. 272 (1999). VA will not deny a PTSD 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. 38 C.F.R. § 3.304(f)(5). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In essence, the Veteran asserts that his current psychiatric problems are due to having been sexually assaulted while serving on active duty in Germany in October 1970. In particular, the Veteran asserts he was physically and sexually assaulted in the shower by three other servicemembers on October 29, 1970. He has testified under oath that he never told anyone about the assault during service or for decades thereafter because he was ashamed, and instead started using heroin and opiates to deal with the trauma. See November 2010 Hearing Transcript [Tr.], at 3-7. Turning first to this claimed in-service stressor, the Board notes that the Veteran's service treatment records and service personnel records are completely silent as to any reports of in-service sexual assault. That stated, as noted above, the Veteran has competently and consistently indicated that he did not tell anyone about this in-service assault for decades after service. Indeed, he testified in November 2010 that he started discussing the incident only recently because his Narcotics Anonymous sponsor encouraged him to seek professional help in an effort to curb his drug habit. See id. at 6. The Veteran's service personnel records corroborate service in Germany in October 1970. Significantly, they also show that the Veteran attended a drug abuse class within one month of the alleged assault on November 16, 1970. See Veteran's record of foreign service, and his November 16, 1970 Disposition Form. To help corroborate his claimed stressor, the Veteran has also submitted lay statements from his brother and his sister, who both attest to observing a change in the Veteran after he completed his active duty service. In a statement received in April 2010, the Veteran's sister, B.J.B., recalled that the Veteran entered the Army a "fun and loving person" and returned a "changed man." She noted that she at times became scared of the Veteran, and indicated that he would "flip out and start a fight" if something was said to him in the wrong tone. The Veteran's brother, R.A.W., similarly recalled in April 2010 that the Veteran was strong and brave prior to entering service. The Veteran was described as funny and as a person who joked with family and friends. R.A.W. observed that the Veteran was different after his separation from service, "always looking over his shoulder as if someone was after him," staying to himself a lot, and even losing facial tone and expression. The Veteran is competent to attest to his own in-service observations and experiences, to include the circumstances of his claimed sexual assault. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the Veteran's service records include no documentation of any in-service assault and/or mental health disability symptomatology, the Board finds that this does not diminish the Veteran's account of in-service sexual trauma. While the Veteran denied having experienced military sexual trauma at a December 13, 2005 VA Social Work Assessment, he has made clear that he was ashamed of discussing this assault with anyone for decades after service, and was unable to do so until recently. Further, with respect to in-service personal assault in particular, 38 C.F.R. § 3.304(f)(5) indicates that evidence of behavioral changes from sources other than the Veteran's service records may corroborate the account of the stressor incident. As discussed above, the Veteran's siblings have offered competent and credible statements of observation noting a change in the Veteran's ability to interact and relate to people upon completion of his relatively short period of active duty service. The Veteran has confirmed service in Germany at the time of his claimed assault, and his assertions that he started using narcotics in-service to deal with the trauma are supported by the fact that the Veteran attended a class addressing drug abuse within one month of the claimed in-service assault. In light of this corroborative evidence, the Board resolves all doubt in the Veteran's favor and finds the Veteran's in-service stressor to be corroborated. See 38 C.F.R. § 3.102 (2012). Turning next to current disability, as discussed in the Introduction above, the Veteran has been diagnosed by VA treating physicians with multiple psychiatric disabilities, to include PTSD, depressive disorder and psychosis NOS. See, e.g., December 2, 2005 VA Attending Admission Note and Psychiatry Note (confirming diagnoses, respectively, of both psychosis NOS and major depressive disorder); see also March 30, 2009 VA PTSD Group Therapy Note (indicating a diagnosis of chronic PTSD). While the Board recognizes that VA physicians have not explicitly stated that the Veteran's PTSD diagnosis conforms with the PTSD criteria outlined in the DSM-IV, the validity of the diagnosis for the purposes of this inquiry is not in question. Indeed, a diagnosis of PTSD from a competent medical professional is assumed to have been made in accordance with the DSM-IV psychiatric criteria that include the adequacy of the symptomatology and the sufficiency of the stressor. See Cohen v. Brown, 10 Vet. App. 128, 153 (1997). Moreover, the Veteran's PTSD diagnosis has been based in large part on his own accounts of in-service sexual trauma, which the Board has already accepted as competent and credible above. Thus, current disability is also demonstrated by the record. Finally, with respect to nexus or relationship, a March 8, 2009 VA PTSD Discharge Note specifically indicates that the Veteran has "PTSD secondary to MST (military sexual trauma)," with depression by history. In addition, the Veteran has submitted two statements from his readjustment counselor, C.W., both suggesting that the Veteran's MST directly caused the Veteran to develop PTSD. Indeed, in an April 20, 2010 letter, counselor C.W. indicated that the Veteran "continues to work through the Military Sexual Trauma (MST) and the residual Post Traumatic Stress Disorder (PTSD) influence in his everyday life," and that his "PTSD from MST does not seem to be responding very well to treatment and his condition has had very little improvement." In a second letter, dated October 29, 2010, counselor C.W. reiterated that the "military sexual trauma this veteran experienced while stationed in Germany has impacted his life negatively in the ways listed above [to include a history of substance abuse, limited contact with family, intrusive thoughts, fear of being in groups of people (especially men), isolation, sleep disturbances from nightmares about the sexual assault, irritability, depression and problems concentrating], and continue to be a daily struggle for this veteran." There are no medical opinions of record that specifically contradict the favorable nexus evidence noted above. Thus, all elements for the award of service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder and psychosis NOS are satisfied. See 38 C.F.R. §§ 3.303, 3.304(f) (2012). The benefit sought on appeal is granted. ORDER Service connection for an acquired psychiatric disability, to include PTSD, depressive disorder and psychosis NOS, is granted. ____________________________________________ Paul Sorisio Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs