Citation Nr: 1315093 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 12-10 006 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depressive disorder (MDD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION Active service from April 1954 to June 1958 has been verified. The record reveals that the Veteran claimed in testimony before the Undersigned at the Travel Board hearing in June 2012 and in other communications of record, including a January 2013 statement, that he was released from prison and the Marine Corps in June 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the VARO in St. Petersburg, Florida, that, in pertinent part, denied entitlement to service connection for PTSD. The Board notes that the service connection issue on appeal has been recharacterized. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (in that case, the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record, not merely the diagnosis mentioned by the claimant). In compliance with the Court's holding in Clemons, the Board has recharacterized the issue as reflected on the title page. In June 2012, the Veteran testified at a travel board hearing before the Undersigned. A transcript of the hearing proceedings is of record and has been reviewed. The Board notes the record reflects that at the June 2012 hearing, the parties discussed a March 23, 2012, statement from the Veteran that was construed by the RO as a claim for service connection for chronic obstructive pulmonary disease (COPD). While the undersigned notified the Veteran that his COPD claim was inappropriately dismissed, a report of contact (VA Form 21-0820) dated June 28, 2012, after the hearing, reflects that the Veteran never intended to file a claim for COPD. As such, this issue is not being further addressed by the Board. Please note this appeal has been advanced on the Board's docket pursuant to the provisions of 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran has a psychiatric disability, currently diagnosed as PTSD and MDD, that is reasonably related to an inservice personal assault. CONCLUSION OF LAW The criteria for service connection for a chronic acquired psychiatric disability, namely PTSD and MDD, have been reasonably met. 38 U.S.C.A. § 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Since the Board is granting entitlement to service connection for a psychiatric disability, the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the duties to notify and assist Veterans in developing claims for VA benefits. The Board notes there has been such essential compliance with the mandates of the VCAA throughout the course of the appeal. Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001). Pertinent Law and Regulations 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, 1131; 38 C.F.R. §§ 3.102, 3.303. Service connection requires competent evidence showing: 1) The existence of a current disability; 2) inservice incurrence or aggravation of a disease or injury; and 3) a causal relationship between the current disability and a disease or injury incurred in or aggravated during service--the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). There are particular requirements for establishing PTSD set forth at 38 C.F.R. § 3.304(f) which take precedence over the general requirements for establishing service connection set forth at 38 C.F.R. § 3.303. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. 38 C.F.R. § 3.304(f). Where a Veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the Veteran's testimony or statements after the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Generally, corroboration of an inservice stressor cannot consist solely of after-the-fact medical nexus evidence. See Moreau. However, in Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to claims such as this one for service connection for PTSD based on personal assault. In particular, the Court held that the provisions of VA's Adjudication Manual which addressed PTSD claims based on personal assault are substantive rules which are the equivalent of VA regulations and must be considered and adhered to. See also YR v. West, 11 Vet. App. 393, 398-99 (1998). However, VA has amended the PTSD regulations to provide that evidence other than the Veteran's service records can corroborate the occurrence of a claimed inservice stressor based on personal assault. See 67 Fed. Reg. 10,330-31 (March 7, 2002), codified at 38 C.F.R. § 3.304(f)(4). Examples of such evidence include evidence of behavioral changes following a claimed assault. Examples of behavioral changes that may constitute credible evidence of a stressor include deterioration in work performance and episodes of depression, panic attacks, or anxiety, without an identifiable cause, or unexplained economic or social behavioral changes. 38 C.F.R. § 3.304(f)(4). Significantly, 38 C.F.R. § 3.304(f)(4) also provides that 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. Factual Background and Analysis The Board has thoroughly reviewed all the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail all the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to the Veteran). The service treatment records are without reference to complaints or findings indicative of the presence of a psychiatric disorder. The service personnel records disclose that in March 1958 the Veteran was charged with the offense of possession of narcotics and was confined at an adult probation camp in San Diego County, California. The post service evidence includes a psychiatric history report dated in November 1965 from the Fort Logan Mental Health Clinic. The Veteran had been admitted to a 24-hour care at the facility in September 1965 with a diagnosis of agitated depression. The Veteran had felt a great deal of anxiety and pressure over the demands of his business running a restaurant and his seeming inability to effectively discipline and deal with his stepchildren. He had also experienced many marital difficulties. It was noted the Veteran had been hospitalized once previously. This was about three weeks prior to admission at the present time. He was admitted to another hospital for 2 or 3 hours in a highly agitated state because of the factors described above. He received medications at that time and was released. Also, in the past, he reportedly had been prescribed medications for his depression and anxiety by his family physician. A detailed history was obtained from the Veteran. In discussing his military service, he stated that while at boot camp he got along well with others and liked the training to some degree. While receiving combat training at Camp Pendleton in California, he started smoking marijuana. It was remarked he did well in his job and received regular promotions. As a Latino, he felt some prejudice in the Marines and he would take the side of black soldiers. He found there was not as much prejudice toward Latinos, but the prejudice of other men bothered him and he found it very frustrating to argue with them. He stated that while assigned to a postal exchange in Korea he became depressed and asked for a transfer to Japan. It was related the only way the transfer could be accepted was a change of service job classification. The Veteran did this and was transferred to Japan as a military police officer. When he returned to the United States in 1957, he was unhappy. As a squad leader, he found it hard to discipline soldiers and this went against his feeling of wanting to be good to them. Also, he stated he was flat footed and marches were very hard on him. He had to relearn military tactics and had a very hard time adjusting. He asked to be relieved of his rank, but was refused. He began smoking marijuana to help deal with the misery and depression. While in a Los Angeles hotel room, he was caught with marijuana and arrested. For the first couple years after service, the Veteran referred primarily to personal matters including buying a restaurant and dating and then marrying his wife. He began to doubt his own self-worth and became depressed because he believed his wife and family did not really need him. Reference was made to anxiety and depression. No reference was made during the lengthy interview to any traumatic incidents that might have taken place during the Veteran's active service. Also of record is a summary report of the Veteran's psychiatric status at the Fort Logan Mental Health Center. Notation was made that the Veteran was transferred to the outpatient department in June 1966. It was indicated that he had been evaluated by an alcohol and drug counselor in November 1960 for acute alcoholism and drug abuse symptoms. He remained on 24-hour care for 10 days because of suicidal ideation which was present upon his entering the outpatient department. It was noted that the Veteran's symptoms were primarily associated with alcohol and drug abuse. However, it was related that medical history taken in December 1960 referred to pes planus and severe low back pain. The Veteran became very angry when questioned about this condition and refused to participate in the interview. His only comment was to "ask the damn Marines." Upon discharge from the outpatient department and prior to entering a halfway house another interview was conducted. He was more receptive this time and stated his greatest concern was his inability to adjust to marital difficulties and difficulties he was having with his stepchildren. When the issue of the Marines was further discussed, it became apparent to the examiner that the Veteran's negative use of alcohol and other drugs started upon his entering the service at age 17. It was remarked by the examiner that the most profound and obvious condition was chronic alcoholism. The examiner stated the Veteran's experience while in service appeared to be the primary motivational factor. He indicated the pain because of pes planus and the back started while in service. The examiner stated that this pain, coupled with severe emotional anxieties created when he received an undesirable discharge "are no doubt, in my opinion, a prime motivational factor in his negative alcohol abuse pattern. Marital difficulties which are an obvious concern for the client are aggravated considerably by his use of alcohol and drugs." The Veteran was given a diagnosis of alcohol anxiety reaction. Additional evidence includes an interim history report dated in January 1969 from the Fort Logan Mental Health Center. It was stated the Veteran was admitted for the second time to that facility. Reference was made to the aforementioned admission in September 1965 with a diagnosis of agitated depression. It was noted the Veteran was discharged in November 1966, after attending the program on an outpatient department basis. The present admission occurred on December 31, 1968, with an admitting diagnosis of depressive reaction. Current problems were focused on family difficulties. The Veteran doubted his own self-worth and believed he had no strengths and that his wife and family did not really need him. Difficulty in getting obedience and respect from his teenage stepson seemed to be the main conflict that was bothering him at the present time. Additional pertinent evidence includes the report of a psychological examination of the Veteran by a private psychiatrist in June 1975. The purpose was to develop diagnostic data for occupational planning. The Veteran's background information reflected he was in the process of disposing of his involvement in the restaurant business. The only reference to the Veteran's service was that he was in the Marines as a postal clerk and a military policeman before being apprehended for narcotics possession and serving a 7 1/2 month term. It was noted that his discharge was initially dishonorable, but was changed to honorable in 1973. The Veteran's initial reference to PTSD came in a July 2009 claim for disability benefits. The Veteran referred to injuring his back in a training exercise and sustaining damage to his spine. He stated following service he applied for disability, but "no record was found that I was ever injured or any record that I was in the hospital. I argued this case for several years but was told there was no evidence and nothing could or would be done. I have lived with this pain, anger and frustration until I suffer from PTSD and have taken medication to maintain for years." In an August 2009 statement the Veteran referred primarily to episodes of racism during his training. He claims when he finished boot camp he began drinking because he was so filled with hate, anger, frustration and helplessness. Of record is a May 2010 statement from a staff psychiatrist at the VA Primary Care Clinic in Homestead, Florida. He reported the Veteran was being followed at that facility for PTSD and MDD. Additional post service evidence includes a report of a PTSD examination accorded the Veteran by VA in May 2011. The claims file was reviewed by the examiner. The examiner referred to review of records from the Fort Logan mental health facility in 1965 and 1966 and from the Miami VA medical facility from 2010 to the present time. The Veteran did not experience any combat. He stated he was arrested by civilian authorities following service for marijuana possession. He spent about one year in jail and then was discharged back to the Marines where he was put in the brig and then discharged. He now claims that in boot camp he was physically abused by an officer and was regularly physically beaten by his drill instructor and that this individual attempted to rape him on several occasions. The examiner noted that the service records did not verify this claim. The Veteran reported that he was angry and depressed since boot camp and this led to his alcohol and drug abuse. Following examination, the examiner gave Axis I diagnoses of MDD and PTSD. There was no Axis II diagnosis. The examiner opined that the PTSD "is less likely caused by or a result of military sexual/physical assault." As for rationale, he referred to records from the local mental health clinic referring to several long detailed summaries in which some of the history was contradicted. He stated the Veteran told him he used marijuana and alcohol occasionally before the Marines and in the Marines began use after boot camp but not to treat emotional symptoms. He added that further, there was no mention of being beaten or sexually assaulted in boot camp or at any other time. The summary reflected that the Veteran became depressed at times but it was not related to any assault but more due to displeasure with postal duty in Korea. The depression diagnosed in 1965 referred to family concerns, with no mention of prior sexual assault or physical assault in the summary. He noted that in such cases where the claim is military sexual/physical assault and with the service records having no documentation of said traumas, the evaluator looks for other indications of significant change in behavior after the alleged assault to infer that some form of trauma might have occurred. In the Veteran's case there were his statements that he was very depressed and angry and this led to substance abuse. He noted at the same time there were no other significant indications such as multiple Article 15's or other changes of behavior requiring counseling or other interventions by the Marines. He referred to a lack of documented significant changes in the Veteran's behavior plus his psychiatric admission seven years following service discharge in 1965 when there was no mention of sexual/physical assault or any problems with the drill sergeant in boot camp. Also he reported that the Veteran seemingly reported using marijuana recreationally, and not to treat emotional problems. He noted that further, there was a gap of more than 40 years until the Veteran presented for treatment again. As a result, he opined that PTSD is less likely caused by or a result of any military sexual/physical assault. Following a remand by the Board in January 2013, the Veteran was accorded an examination by a VA physician in February 2013. The claims file was reviewed by the examiner. The examiner gave diagnoses of PTSD and MDD. Notation was made that the first documented treatment following service was in 1965 when there was no mention of military sexual trauma. The examiner noted there was a gap of treatment until 2009 when the Veteran was given a diagnosis of PTSD and major depression. The Veteran stated he was too ashamed to talk about the sexual assault until 2009. The stressor the Veteran referred to as being traumatic was shortly after his beginning boot camp when his drill instructor began physically assaulting him with sucker punches and then raped him. In response to the question as to whether it is at least as likely as not that the diagnosed PTSD and/or MDD had onset during service or are otherwise related to service, the physician stated, "I cannot resolve this issue without resorting to mere speculation." He indicated that, although the Veteran appeared credible in his accounting of the claimed assault, "and the fact that he did not mention this until the late 2000's could be explained by the fact that individuals suffering sexual assault are often very ashamed of this issue, there is a lack of objective markers in service and/or report in Marines of this occurrence and no documentation of any psychiatric disorder until about nine years later." The Board notes the claims file contains statements from several different individuals. One is from an individual who stated in December 2009 that he has known the Veteran since 1958. He recalled that he had always known the Veteran to have problems with his back as well as having bouts of depression. The individual claims that the Veteran never said too much to him but let him know "the injuries" were from his "experience" in the Marine Corps. As best he can recollect, the Veteran has always been on some type of medication for pain and depression. Another communication dated in September 2010 is from a nephew of the Veteran. He states he especially remembers the years between 1965 and 1969. He recalls that during those years the Veteran always seemed to be mad or sad or both. The nephew indicated that he seldom saw the Veteran happy. One time when he asked the Veteran what was wrong, he was told "some day I'll tell you, but he never did." Another lay statement is from a stepson of the Veteran dated in September 2010. He stated he had known the Veteran since 1995. He referred to mood changes, anger, sadness, nightmares, and memory difficulties. Also of record is a September 2010 communication from the Veteran's wife. She stated that they had known each other for 15 years. She commented that the Veteran was very young when he was in the military. Based on a longitudinal review of the evidence of record, the Board finds the evidence for and against the claim is at least in relative equipoise. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a psychiatric disorder, namely PTSD and/or MDD, is granted. The Veteran has given an inconsistent history regarding his experiences in service. At times, he reported that he was very happy and stated he only changed his occupational specialty from being a postal clerk to a military policeman because he wanted to leave Korea and go to Japan. The VA physician who examined the Veteran most recently in February 2013 had access to the entire claims file. He indicated that he could not resolve the issue of whether the Veteran's acquired psychiatric disorder is at least as likely as not related to service without resorting to mere speculation. However, the examiner stated that the Veteran appeared credible in his recounting of the claimed assault in service and he specifically noted that the fact the Veteran did not mention the incident until many years following service discharge could be explained by the fact that individuals suffering sexual assault are often reluctant to discuss the incident for years. The Veteran has submitted statements from several individuals who have known him over the years. His current wife and his stepson unfortunately did not know him during his active service or for years thereafter. However, he has submitted one communication from a longtime friend who stated that he had known the Veteran since 1958. That individual stated that the Veteran had had problems with his back and with bouts of depression ever since he met him in 1958. The VA physician who examined the Veteran in February 2013 did not address the lay statements. He did state that he found the Veteran to be credible and he did acknowledge that individuals sustaining sexual or physical assault are often "ashamed" of the issue and do not mention it for years after the fact to anyone. Accordingly, considering the medical and other evidence of record, the Board finds it is just as likely as not that the Veteran was sexually assaulted during his military service and that his currently diagnosed psychiatric disability is attributable to sexual trauma sustained in service. ORDER Service connection for a chronic acquired psychiatric disability, to include PTSD and/or MDD, is granted. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs