Citation Nr: 1314461 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 10-39 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for neurosis. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran had active service from June 1990 to September 1991, during the Gulf War Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A March 2011 rating decision, in part, granted a 70 percent rating for major depressive disorder (MDD), effective September 3, 2010. The RO erroneously stated that the law does not allow a separate evaluation for mental disorders and that the Veteran was already service connected for MDD. (See September 2012 Supplemental Statement of the Case). Service connection for MDD does not in and of itself render the PTSD or neurosis claim moot. In Amberman v. Shinseki, the Federal Circuit recognized that separately diagnosed psychiatric conditions could be service connected, but could not be separately rated unless they resulted in different manifestations. 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("Section 4.14 clearly contemplates that several separately diagnosed disorders may have a single manifestation, and it clearly prohibits the VA from rating that manifestation for each disorder.") (Emphasis added). A review of the Virtual VA paperless claims processing system revealed additional treatment records dated from May 2003 to September 2012 pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran is service connected for fibromyalgia. 2. The Veteran's neurosis is due to her service-connected fibromyalgia. 3. The Veteran has PTSD that is as likely as not attributable to events during her active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for neurosis, as secondary to service-connected fibromyalgia, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.310 (2012). 2. The criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim 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 and 3.326(a) (2012). In this decision, the Board grants service connection for PTSD and neurosis. This award represents a complete grant of the benefits sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. The Veteran contends that she has PTSD from sexual harassment during service. Specifically, the Veteran stated that she has been sexually and physically assaulted by a fellow enlisted female seaman in the fall of 1991 while stationed in San Diego, California. (See October 2010 Form 9). She also asserts that she suffers from neurosis secondary to her service-connected fibromyalgia. (See July 2008 Written Statement). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Establishing service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). Section 4.125(a) requires the diagnosis to conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Regarding her claim of service connection for PTSD, the Veteran alleges, as discussed above, that she experienced an in-service stressor involving sexual trauma and other instances of harassment. The regulations provide that 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. 38 C.F.R. § 3.304(f)(5). Additionally, VA will not deny a PTSD claim that is based on in-service personal assault without first advising the Veteran that evidence from sources other than the Veteran's service records or evidence of behavioral changes may constitute credible supporting evidence of the stressor in allowing 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. Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor). The Veteran's service treatment records (STRs) do not contain a diagnosis of, or treatment for PTSD or neurosis. However, the STRs showed treatment for anxiety and depression in August 1991. The service records, including personnel records, also do not document an incident involving sexual trauma or harassment. However, this is not unexpected in light of the regulations concerning PTSD due to personal assault, which suggest that evidence from sources other than official service records may be necessary to corroborate the Veteran's account of the stressor incident. Post-service treatment records noted complaints of anxiety, feelings of panic, and restlessness. (See private treatment records dated in November 2000, December 2000, December 2001, and August 2002 private treatment records; see also July 2003 written statement). A September 2003 VA treatment record reflects a diagnosis of depression, chronic pain from fibromyalgia, and anxiety. A November 2003 VA treatment record noted that the Veteran had depression since 1991 and had anxiety and mood swings. An October 2008 VA treatment record noted a past medical history of neurosis and obsessive compulsive disorder (OCD). A December 2008 VA treatment record showed a diagnosed of PTSD. A February 2009 VA examination noted that the Veteran had multiple episodes of abuse, including during childhood, adulthood, in the military, and outside the military. The Veteran was diagnosed with MDD, PTSD, pain disorder, and passive dependent personality feature. The Veteran reported symptoms of depression, PTSD, and chronic pain. The VA examiner only attributed the MDD to the service-connected fibromyalgia. The Veteran was diagnosed with PTSD, MDD, and OCD in an August 2010 VA treatment record. A June 2010 VA treatment record reflects a history of childhood sexual trauma. A September 2010 VA treatment record reflects that she was treated in psychotherapy and her childhood trauma symptoms resolved. After a mental status examination, the VA physician noted, in part, that the fibromyalgia significantly worsened her anxiety and mood levels. (emphasis added). In a January 2011 VA examination, the Veteran was diagnosed with major depression and a pain disorder associated with both psychological factors and general medical condition. The VA examiner stated that the conditions were separate clinical conditions, independently responsible for impairment in psychosocial adjustment and quality of life. The March 2012 Disability Benefits Questionnaire (DBQ) with May 2012 addendum diagnosed the Veteran with MDD, OCD, and a personality disorder. The examiner described the Veteran's symptoms as follows: depressed mood; anxiety; panic attacks (more than once per week); sleep impairment; mild memory loss; disturbance of motivation and mood; difficulty in adapting to stressful circumstances; suicidal ideation; and difficulty maintaining effective work and social relationships. He further stated, in part, that the Veteran had symptoms attributable to PTSD (and other disorders), but would not provide a diagnosis of PTSD because the Veteran was an unreliable historian. He also mentioned that it was not possible to differentiate the symptoms to each diagnosis. And that, the Axis II features with generalized medical condition overlap with mood disorder symptoms. He stated that her PTSD symptoms were as follows: distress to cues or triggers, numbing; diminished interest in activities; feelings of detachment; hypervigilance; difficulty falling asleep; irritability or outbursts of anger; and difficulty concentration. The medical evidence of record has opinions in favor of a diagnosis of PTSD and opinions against a diagnosis of PTSD. (See December 2008 VA treatment record; February 2009 VA examination; and March 2012 DBQ). The medical evidence also consistently reflects that the Veteran suffered from anxiety and OCD. The Veteran's childhood traumas also had been mentioned previously as contributing factors on VA treatment records, but the degree of psychiatric impairment related to childhood trauma versus military service has not been differentiated. Therefore, the Board will resolve any doubt in the Veteran's favor. The earliest treatment for possible symptoms of PTSD occurred in November 2000 based on the medical evidence of record. A diagnosis of PTSD was initially made in December 2008, which was approximately 17 years after the Veteran's separation from active military service. Even so, multiple VA medical professionals have diagnosed the Veteran with PTSD and attributed the disorder to trauma. (December 2008, February 2009, and August 2010 VA treatment records). In fact, no fewer than three VA mental health care providers have diagnosed the Veteran with PTSD. Essentially, multiple evaluators considered the Veteran's report of military sexual trauma and found it to be credible enough to support a clinical diagnosis of PTSD. In this type of case, the medical opinions themselves are supporting evidence that the claimed in-service stressor actually occurred. See Menegassi, 683 F.3d at 1382. Although the March 2012 DBQ examiner stated that he would not diagnose the Veteran with PTSD despite her symptoms because she was an unreliable historian, the rationale provided is inadequate as the opinion impermissibly ignores the Veteran's testimony regarding her progression of symptoms, and the opinion is based on the lack of documented treatment in the STRs. See Buchanan, 451 F.3d at 1337 (lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence). Consequently, it is outweighed by the other medical evidence of record diagnosing the Veteran with PTSD. See Nieves-Rodriguez, 22 Vet. App. at 301; Stefl, 21 Vet. App. at 124. The Veteran is credible in her statements concerning the claimed in-service sexual trauma and other evidence in the claims file does not conflict with her account. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds that the in-service stressor as likely as not occurred. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Given the clinical diagnosis of PTSD secondary to the in-service stressor, the Board finds that the Veteran has PTSD that is as likely as not attributable to events during her active military service. With regard to neurosis, the STRs reflect that the Veteran was treated for anxiety in August 1991. The Veteran has consistently complained of anxiety since service. Further, a September 2010 VA physician opined that her service-connected fibromyalgia significantly worsened her anxiety. Therefore, as the greater weight of the medical evidence shows that the Veteran has a current disability of neurosis that is a result of her service-connected fibromyalgia, service connection for neurosis is warranted on a secondary basis, resolving all doubt in favor of the Veteran. See Smith v. Shinseki, 24 Vet. App. 40, 49 (2012); 38 C.F.R. § 3.310; see also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53. ORDER Service connection for neurosis is granted. Service connection for PTSD is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs