Citation Nr: 1313741 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 11-03 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), bipolar disorder, schizophrenia and depression. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1970. He also served in the Army Reserve from 1973 to 1984. This matter is on appeal from a January 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before a Decision Review Officer (DRO) at the RO in December 2010. A transcript of the hearing is of record. In November 2011, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran has an acquired psychiatric disorder, to include PTSD, as a result of military sexual trauma during active military duty. CONCLUSION OF LAW PTSD was incurred in active duty. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially diagnosed after service, 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). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) a link, established by medical evidence, between current PTSD symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred; except that in the case of a combat Veteran claiming a combat stressor, credible supporting evidence is generally not required. 38 C.F.R. § 3.304(f) (2012). 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 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). 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contends that he has a current psychiatric disability, to include PTSD, related to an in-service physical and sexual assault, during basic training at Fort Benning, Georgia on or about November [redacted], 1967. Service treatment records are negative for any evidence of complaints, treatment or a diagnosis of PTSD or any other psychiatric disability. There is also no evidence of treatment for an assault in service. Service personnel records as well as Morning Reports are negative in this respect as well. Nevertheless, as provided above, the lack of evidence of the assault does not necessarily disprove its occurrence. VA and private treatment records show that the Veteran has been diagnosed with PTSD, based on his reports of military sexual trauma, as well as childhood sexual abuse. He has also been diagnosed with major depressive disorder, a mood disorder, bipolar disorder, and schizophrenia, and he has been hospitalized on numerous occasions for suicidal ideation. These records also show that the Veteran reported substance abuse, in particular alcohol dependence, and indicated that his drinking started at the age of 15 and escalated during and after his military service. The Veteran underwent a psychiatric evaluation in May 2008 at the VA Brevard Clinic, by clinical psychologist, J.S., who had also previously treated him at the VA Outpatient Clinic in Viera, Florida. The Veteran was administered the MMPT-2 and MCMI-III, and it was noted that there were strong indicators on both tests of PTSD symptomatology, which appeared to be related to life events in his childhood and adulthood, and not directly related to any combat experience. There were also indications of possible military sexual trauma, or sexual trauma at one point in time in his life. Dr. J.S. noted that the Veteran's alcoholism escalated in the military, likely to self-medicate against existing and possibly exacerbated PTSD symptoms and depression. He was diagnosed with major depression with psychotic features, PTSD, and alcohol dependence. During a June 2008 VA mental disorders (except PTSD and eating disorders) examination, the Veteran reported that he was sexually abused as a child at a sleepover, physically abused as a child by his father, and sexually and physically abused during basic training in 1967. He also reported struggling with alcohol dependence since the military. The Veteran was diagnosed with major depressive disorder with psychosis, dysthymic disorder, and PTSD, chronic. The examiner noted that the depression was most likely secondary to PTSD and worsened by his chronic alcohol use. However, he did not give an opinion regarding the etiology of the diagnosed PTSD. In a December 2008 statement, Dr. J.S., indicated that he had personally reviewed the Veteran's medical and mental health history (including his reports related to the alleged physical and sexual assault that occurred during active duty in November 1967), and conducted psychodiagnostic testing with him at the VA Outpatient Clinic in Viera, Florida, where he had been treated since August 2005. He added that he had reviewed statements submitted on the Veteran's behalf by his former wife, his stepson, his son, and his fiancé. Dr. J.S. noted that the Veteran's diagnoses were PTSD, major depressive disorder, with psychosis, dysthymic disorder, and alcohol dependence. He then stated that the aforementioned documents, as well as the Veteran's account of the traumatic incident in 1967, the absence of other factors to precipitate his constellation of symptoms and diagnoses, and review of testing, clinical notes and available clinical literature on PTSD and/MST, led him to conclude that there was a clear nexus between the MST and acute physical threat to life that the Veteran experienced while in the military (causally related to his current PTSD diagnosis), and sequelae or subsequent development of symptoms, coping patterns, and diagnosed conditions that had plagued and disrupted his functioning since November 27, 1967. More specifically, it was his clinical opinion that the physical/sexual trauma that the Veteran suffered during his military service in November 1967 caused his PTSD, that the PTSD was the primary diagnosis, and that the nexus to his current dysfunction was the PTSD/MST. He opined further that over time, the Veteran's largely failed efforts to cope with his PTSD/MST contributed to the development of chronic alcoholism, major depressive disorder with psychotic features, and dysthymic disorder. In an April 2009 report, Dr. J.S. indicated that based on the results of a Medical Informatics Solution Test, which he administered to the Veteran, the Veteran had a positive diagnosis for agoraphobia, alcohol dependency, bipolar disorder, dysthymic disorder, generalized anxiety disorder, major depression, panic disorder, and PTSD/MST, among other things. He then concluded that, based on the documents previously submitted from his office, in support of the Veteran's claim, and the results of the most recent examination, it was his firm opinion that there was a clear nexus between the MST that the Veteran experienced while in the military (causally related to his current PTSD/MST diagnosis), and sequelae or subsequent development of symptoms, coping patterns, and diagnosed conditions that had plagued and disrupted his functioning since November 27, 1967. In a December 2011 report, Dr. J.S. noted that in May 2008, he met with members of the Veteran's treatment team, which included S.C., VA ARNP, and K.R., LCSW, to discuss the Veteran, and it was agreed that the Veteran suffered from a trauma which more likely than not occurred during his childhood, but the Veteran was withholding details of when and where the trauma occurred. He indicated that when the Veteran gave him a letter in June 2008, relating that he had suffered a sexual assault in service, he decided that this was actually the traumatic event that the Veteran had suffered in the past that had caused his PTSD. He also clarified his earlier reports regarding the onset of the Veteran's alcohol abuse. In this regard, he stated that although the Veteran had his first taste of alcohol at the age of 15, he reacted negatively to the drink and abstained from all forms of alcohol until his alleged in-service assault in 1967. In an October 2012 PTSD Disability Benefits Questionnaire, completed by Dr. J.S., it was noted that the Veteran's current diagnoses included PTSD, bipolar disorder I, schizophrenia, and depression. The doctor opined that all the Veteran's symptoms appeared to be attributable to his PTSD, which occurred following his assault and rape while serving in the U.S. Army in 1967. In an October 2012 report, S.C., nurse practitioner at the Orlando VA Medical Center, who had been treating the Veteran since July 2005, indicated that over the course of the Veteran's treatment, it was discovered that the Veteran had experienced one incident of sexual trauma as a young boy; however, he had also experienced a sexual assault in the military, and it was his MST that triggered major anxiety and symptoms of distress. She also noted that the Veteran had used alcohol, repression and denial to cope. Several family members and acquaintances of the Veteran, including his ex-wife, his son, his step-son, his brother, two ministers, and his current fiancé, have submitted statements, indicating either that they knew the Veteran prior to his alleged in-service assault in 1967 and after, and that his behavior (including heavy drinking, isolation, and lack of intimacy) indicated that something was wrong with him, or that the Veteran or his ex-wife had told them that the Veteran was physically and sexually assaulted in the military. Social Security Administration records show that the Veteran has been determined to be disabled, due to an affective/mood disorder and an anxiety related disorder since February 2007. In response to the Board's November 2011 remand, the Veteran was afforded a VA examination in October 2012. The Veteran reported physical and psychological abuse from his father as a child, and repeated his contentions of sexual assault in the military. He also reported a history of substance abuse, in particular alcohol dependence, which he reported started after his alleged sexual assault and discharge from service, and an extensive mental health history, which included multiple hospitalizations for suicidal ideation and a diagnosis of bipolar disorder. He reported that he had been sober for 14 months. The examiner diagnosed alcohol dependence, in remission and a mood disorder, not otherwise specified. He also concluded that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD under DSM-IV criteria, because on interview, he did not report symptoms fully consistent with a diagnosis of PTSD. He emphasized that the Veteran had no exposure to a traumatic event. Specifically, he found that the Veteran did not meet this criterion because his alleged stressor was an uncorroborated military sexual assault. The examiner also found that criterion B, C and D were not met because the traumatic event was not persistently re-experienced; there was no persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness; and there were no persistent symptoms of increased arousal. The examiner added that it would be merely speculative to causally connect the Veteran's mental health problems, including both his alcoholism and mood disorder, with his military service, including, but not limited to, the alleged personal assault. In this regard, he said that it is impossible to post-dict whether something occurred previously based upon current symptoms, and that there is no empirically supported profile that would reliably post-dict that someone was the victim of sexual assault, and that in fact, treatment professionals take the patient's word at its value. The examiner also noted that although the Veteran had also been diagnosed with bipolar disorder, based upon the examination, it remained unclear whether he had bipolar disorder or if his mood symptoms were related to his alcoholism, as it is not uncommon for chronic alcoholics to become clinically depressed, and for that depression to be acute at times, including the presence of suicidal ideation. He stated that a review of prior psychiatric records would have been helpful in clarifying the diagnostic questions. As highlighted above, the medical evidence of record shows that the Veteran has varying diagnoses of an acquired psychiatric disorder including, but not limited to, major depressive disorder, bipolar disorder, schizophrenia, and alcohol dependence. The record thus demonstrates a current disability. There is definite question as to whether or not the Veteran has been diagnosed as having PTSD. The evidence favoring the diagnosis of PTSD includes the numerous reports from Dr. J.S., who is his treating psychiatrist. Dr. J.S. has consistently diagnosed PTSD since at least 2008. The October 2012 DBQ shows that this diagnosis was rendered with respect to the DSM IV and thus meets the requirements of 38 C.F.R. § 4.125. While rationale supporting the diagnosis was not included with report, the Board emphasizes that the report clearly identifies how the criterion for establishing a diagnosis of PTSD were met. The fact that Dr. J.S. is the Veteran's treating psychiatrist is also relevant. The only significant evidence against the diagnosis is the report of the October 2012 VA examination. This report is also probative. The VA examiner explained in some detail how the criteria for a diagnosis of PTSD under the DSM-IV had not been met. Significant weight was placed on his determination that the Veteran did not have exposure to a traumatic event in service. The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Overall, the evidence is in at least equipoise. Thus, resolving reasonable doubt in the appellant's favor, the Board finds that there is sufficient evidence support a finding that the Veteran has a diagnosis of PTSD. 38 U.S.C.A. § 5107(b). Turning to question of whether there is credible supporting evidence that the claimed in-service stressor occurred, there is evidence against the claim, inasmuch as the Veteran has reported physical and sexual trauma during childhood, and his private psychiatrist originally opined that his PTSD symptomatology appeared to be related to life events in his childhood and adulthood. The VA examiner has also indicated in his October 2012 that it was not possible to post-dict the occurrence of the personal assault. However, the Board is persuaded by the fact his treating psychiatrist, Dr. J.S., has clearly based his diagnosis of PTSD on the Veteran's account of what transpired in service, i.e., a sexual assault. In this regard, the Veteran has been consistent in his reports detailing the assault which he contends occurred during service, and his reports were confirmed in the letters of family and friends who claim that the Veteran confided in them. The Board has no reason to find the Veteran's report not credible. Incurrence of the in-service stressor (personal assault) is established. The Board also finds that there is ample evidence, most notably the reports from Dr. J.S., supporting a nexus/link between the Veteran's PTSD diagnosis and his in-service stressor. In light of the above discussion, the Board finds no adequate basis to reject the competent medical evidence that is favorable to the Veteran, based on a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). This favorable medical evidence supports a finding that the Veteran suffers from PTSD as a result of an in-service stressor event (personal assault). Service connection for PTSD is thereby warranted. Finally, as noted above, the Veteran has carried diagnoses of depressive disorder, bipolar disorder, and generalized anxiety disorder during the pendency of the appeal. The June 2008, December 2008, and October 2012 reports from Dr. J.S. strongly suggest, however, that these diagnoses are symptoms and sequelae of the Veteran's PTSD. Such suggests that these psychiatric disorders, if they are truly distinct disabilities, are comorbid entities that all derive from the PTSD. Moreover, even if service connection for depressive disorder, bipolar disorder, or generalized anxiety disorder were to be established, the Board notes that no additional benefit would be due to the appellant. See Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009) (held that while it was possible for two mental disabilities to have different symptoms and therefore be evaluated separately, if the manifestations of the two mental disabilities were the same, a separate evaluation was not warranted). ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs