Citation Nr: 1313766 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 07-06 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for PTSD. This case was previously before the Board in September 2009 and again in September 2012, and was remanded on each occasion to ensure due process. As the requested development has been accomplished, the case is again before the Board for appellate consideration. In its March 2006 rating action, the RO concluded new and material evidence had not been received, and denied the Veteran's claim for service connection for depression. Following the Veteran's notice of disagreement, the RO issued a statement of the case in December 2006 that addressed his claims for service connection for PTSD and depression. In his substantive appeal received in February 2007, the Veteran specifically limited his appeal to service connection for PTSD. Thus, the only matter properly before the Board is the claim for service connection for PTSD. FINDING OF FACT The Veteran's PTSD may not be disassociated from his in-service sexual assault. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.304(f)(5) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the fully favorable finding with regard to the claim for service connection, no further discussion of compliance with the duties to notify and assist is warranted at this time. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). If a posttraumatic 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 posttraumatic 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 the 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)(5). The Veteran asserts service connection is warranted for PTSD due to a personal assault in service. During the March 2013 hearing before the undersigned, the Veteran testified he was in the shower when attacked by two individuals. He claims he was penetrated, but acknowledges he did not report this incident. The service treatment records are negative for complaints or findings pertaining to a psychiatric disability. A psychiatric evaluation on the separation examination in February 1968 was normal. VA outpatient treatment records disclose the Veteran was seen in April 2001. He denied depression, but indicated he felt discouraged at times. His complaints centered around musculoskeletal issues, and noted he had experienced such problems since an accident at work in 1999. It was noted he discussed the stressors in his life. The Veteran was seen by a private psychologist in April 2003. He said he was frustrated with his memory problems and that he had difficulty concentrating. He stated he became angry with himself and that he heard voices. He could not report on his childhood. The diagnoses were major depressive disorder with anxiety, malingering and mixed personality disorder with histrionic, obsessive-compulsive, dependent and schizoid features. It was indicated the Veteran reported being depressed and anxious for about 10 years. The Veteran believed such symptoms stemmed from a previous accident at work. VA outpatient treatment records disclose the Veteran was seen in February 2004. He had a terrible time expressing himself. Finally, he began to weep, stating something had happened to him in service that he had never talked about. He asserted he had been assaulted but that it could not be proven. The assessments were anxiety and depression by history, with reports of histrionic behaviors and possible malingering, and rule out PTSD, military sexual trauma. The Veteran was seen in a Vet Center in July 2004. He related he was sexually assaulted by a group of soldiers while taking a shower in service. He maintained he had never been able to describe the details of the assault and generally shut down emotionally when discussing it. He stated he had only recently been able to disclose the incident. The counselor related it was not uncommon for male veterans to have sexual assaults go unreported while on active duty. The examiner commented that the Veteran's symptomatology was consistent with PTSD. The diagnoses were major depressive disorder, sexual trauma, PTSD. In May 2004, the Veteran discussed the rape and said he did not know the soldiers who did it and acknowledged he did not report it. Additional VA medical records, including the report of a VA hospitalization from February to April 2008, reflect diagnoses including PTSD. Statements from family members have bees associated with the claims folder. In 2009, the Veteran's wife stated he ruined their relationship because he did not disclose what had happened in service. She related he suffered from anger and depression, but when she asked him what was wrong, he said not to worry. In a statement dated March 2009, a VA social worker reported she had counseled the Veteran since January 2004. She stated the Veteran had not disclosed the in-service sexual trauma to anyone, including his family, until 2003. She maintained on his second visit with her, the Veteran disclosed it to her with great difficulty. He had so much shame and guilt he could not talk about it without breaking down. The social worker concluded the Veteran was entitled to a service-connected disability due to the military sexual trauma he suffered in service. The Veteran was afforded a VA psychiatric examination in February 2012. He again described the in-service sexual assault. The examiner diagnosed PTSD. He commented the stressor was adequate to support the diagnosis of PTSD, and concluded it contributed to its diagnosis. He further noted that other than the Veteran's historical recounting of the sexual assault, there was no evidence to support this stressor as having occurred. The examiner asserted there were several reasons to doubt the Veteran's credibility. He noted there was not enough information to ascertain whether the Veteran had a change in personality or mood caused by service, and there were inconsistencies in the record. The examiner opined it was less likely as not that the Veteran's current symptoms are solely the result of service. The Board acknowledges the Veteran is competent to provide information concerning the in-service incident. The Board also recognizes the medical opinion on the February 2012 VA psychiatric examination is inconsistent. On one hand, the examiner appears to call into question the Veteran's credibility. Yet, he concluded the Veteran has PTSD, and that it was due to the in-service sexual assault. In addition, the Board emphasizes that the examiner determined the Veteran's symptoms were not solely due to service. Clearly, this strongly suggests that at least some of his symptoms are due to service. Therefore, the Board finds, resolving doubt in the Veteran's favor, service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs