Citation Nr: 1315732 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-14 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, dysthymia and anxiety. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from December 1981 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, denying, among other issues, the matter currently on appeal. Jurisdiction rests with the RO in New York, New York, from which this appeal was certified. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that a claimant seeks service connection for the symptoms of a disability, regardless of how those symptoms are diagnosed or labeled. The record reflects that the Veteran's psychiatric symptomatology has been related to differing diagnoses throughout the pendency of the appeal. Therefore, the claim has been recharacterized as one of service connection for a psychiatric disorder, to include PTSD. The issue is thus restated on the title page of this decision. As an introductory matter, the record reflects that the Veteran originally filed a claim seeking service connection for PTSD in July 2003. A claim of entitlement to service connection for PTSD/depression was subsequently denied in a rating decision dated May 2004. In July 2004, the Veteran submitted a statement identifying relevant VA treatment records. These records were eventually obtained, albeit a year following the May 2004 rating decision. The Veteran did not submit a notice of disagreement to this rating decision, instead requesting in June 2005 that her claim be reopened. As set forth in 38 C.F.R. § 3.156(b), when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. The Federal Circuit case of Voracek v. Nicholson, 421 F.3d 1299 (Fed. Cir. 2005) provides further guidance, finding that the definition for the phrase "new and material" contained in § 3.156(a) applies to § 3.156(b). After making this determination, it was noted that to qualify as "material" evidence under the revised version of § 3.156(a), the evidence must, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the original claim for service connection disability. Here, the record reflects that the Veteran sought treatment with VA for her PTSD within one year of the May 2004 rating decision. Specifically, the Veteran was admitted for mental health treatment in November 2004. In addition to being diagnosed with PTSD, a diagnosis of depressive disorder with suicidal ideation was also assigned. While evidence previously of record reflected a diagnosis of PTSD and a single diagnosis of "rule out" major depression in September 2003, the November 2004 record is the first evidence of a confirmed diagnosis of depression. The Veteran's claim was denied in part in May 2004 because there was no evidence of a chronic disability associated with in-service treatment for depression. As such, the November 2004 evidence relates to an unestablished fact necessary to substantiate the original claim. While the above evidence was not physically associated with the Veteran's claims file within one year of the May 2004 rating decision, the Board does note that the Veteran identified these records in a July 2004 written statement and it is found that these records constituted new and material evidence. As such, the Board concludes that the identified VA records are deemed received within one year of the May 2004 rating decision. Finally, the Veteran's claim was again denied in a September 2006 rating decision. The Veteran failed to appeal this decision as well. However, there is also new and material evidence in the form of VA treatment within one year of this rating decision. A June 2007 record reflects that the Veteran had a dream involving her ex-husband the previous night. This adds further support to the Veteran's assertion of a traumatic experience involving her ex-husband during military service. Records also reflect a diagnosis of PTSD related to both childhood abuse and adult sexual trauma in July 2007. This evidence provides further support for the Veteran's assertion that she suffers from PTSD related to trauma from her ex-husband, and when viewed in light of the other evidence of record, raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). As such, since new and material evidence was received within one year of the May 2004 and September 2006 rating decisions, these decisions are not final and the July 29, 2003, claim is still pending. Consequently, the RO's adjudication of the issue on a de nova basis was correct and the Board will continue with such a review. FINDINGS OF FACT 1. The Veteran was previously denied service connection for PTSD in May 2004 and September 2006 rating decisions. 2. The Veteran did not file a timely notice of disagreement following the issuance of either the May 2004 or September 2006 rating decision. 3. The record reflects that the Veteran submitted new and material evidence within a year of the May 2004 and September 2006 rating decisions. 4. It is as likely as not that the Veteran's PTSD, major depressive disorder, dysthymia and anxiety manifested as a result of physical, emotional and sexual trauma sustained during active military service. 5. The Veteran's borderline personality disorder/borderline personality traits are not disabilities for which service connection can be granted. CONCLUSIONS OF LAW 1. New and material evidence received within one year of the May 2004 and September 2006 rating decisions was material, and as such, these decisions are not final. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156(a), 3.156(b) (2012). 2. The criteria for establishing entitlement to service connection for a psychiatric disorder, to include PTSD, major depressive disorder, dysthymia and anxiety, have been met. 38 U.S.C.A. §§ 1111, 1131, 1154, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. The criteria for establishing entitlement to service connection for a borderline personality disorder or borderline personality traits have not been met. 38 U.S.C.A. §§ 1111, 1131, 1154, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.9, 4.127 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist 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 case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). 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). See 38 C.F.R. § 3.304(f). The United States Court of Appeals for Veterans Claims (Court) has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke ... in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128 at 140-41. In this case, the veteran's PTSD claim is based on an in-service personal assault. Because of the personal and sensitive nature of a personal assault, many incidents are not officially reported. This creates a proof problem with respect to the occurrence of the claimed stressor. In such situations, it is not unusual for there to be an absence of service records documenting the events the veteran has alleged. Therefore, evidence from sources other than the veteran's service records may corroborate an account of a stressor incident. See, e.g., Patton v. West, 12 Vet. App. 272, 277 (1999); see also 38 C.F.R. § 3.304(f). 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. 38 C.F.R. § 3.304 (f). 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. Id. 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. See Bradford v. Nicholson, 20 Vet. App. 200 (2006). 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. Facts and Analysis The Veteran contends that she is entitled to service connection for PTSD. Specifically, she has alleged that she suffered abuse, both physical and sexual, by her spouse during active duty who was also a service member. In a detailed statement received by VA in August 2007, the Veteran outlined the abuse she suffered during her active military service, including physical abuse and forced sexual acts. The Board finds that the evidence is at least in equipoise in this case. When the evidence for and against a claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107 (2002); 38 C.F.R. § 3.102 (2012). The Veteran's April 1981 enlistment examination reflects that a psychiatric evaluation was deemed to be normal. There was no mention of any previous psychiatric treatment or symptomatology, and the Veteran denied a history of depression, attempted suicide or nervous trouble in her report of medical history associated with this examination. In March 1984, it was noted that the Veteran was having adjustment and job problems. However, there was no evidence of serious psychopathology at this time. A May 1984 record reflects that the Veteran was seen with a depressed affect. Another May 1984 record notes that the Veteran was experiencing depression and wanted to try anti-depressant medication, while another record from this month assigned a diagnosis of dysthymic disorder. According to a March 1985 in-service treatment record, the Veteran wanted to be evaluated by mental health because of outbursts of anger and crying about little things. The Veteran reported that her stress had been building for the last one and a half years. She denied any suicidal ideation or plan at this time, but she did report a suicide attempt in high school due to a drug overdose. The Veteran was admitted to the VA homeless unit in March 1998. While the record does not reflect any specific psychiatric diagnosis, the Veteran did report that she was once in an abusive relationship. In fact, she indicated that she traveled so much to prevent this individual from tracking her down. According to a July 1998 VA readjustment counseling therapist note, the Veteran was referred for therapy for sexual trauma. However, the Veteran was unable to focus on her trauma at this time, instead focusing on her more basic needs such as housing and safety. It was noted that further meetings would be needed for support and interpersonal concerns until the Veteran was ready to focus on her trauma. According to a VA treatment record dated September 2003, the Veteran was suffering from chronic PTSD. It was noted that the Veteran began drinking during active duty following episodes of military sexual harassment. She also reported being in a marriage that was physically and sexually abusive from 1983 to 1989, as well as being sexually abused when she was 2 or 3 years of age and being raped when she was 18 years of age. An October 2003 VA treatment record also reflects that the Veteran reported being sexually abused as a child, being raped at age 18 and being in an abusive marriage from 1983 to 1989. It was noted that the Veteran described numerous episodes of sexual abuse as an adult for which she felt a significant sense of responsibility because she knew all of her abusers. According to an April 2004 VA report of telephone contact, the Veteran was to be contacted regarding community resources that might assist her in her living situation. The Veteran reported that she had been in an abusive relationship but that she was no longer in this relationship. The Veteran was treated by VA on an in-patient basis in November 2004. It was noted that the Veteran had a long history of depression, dysthymia, PTSD, military sexual trauma and physical abuse with prior suicidal attempts. The record reflects that the Veteran had been treated by emergency medical services after feeling suicidal. The record also reflects that the Veteran did not want to discuss her trauma and that she was very uncomfortable being in a room alone with a male physician. Diagnoses of PTSD, depressive disorder, not otherwise specified, with suicidal ideation and polysubstance abuse in remission were assigned. The Veteran was admitted to a private mental health unit in August 2005. The Veteran reported a history of sexual trauma and that she was abused and raped as a child. She also reported that she was married from 1983 to 1989 and that her husband was "abusive physically, sexually, mentally and emotionally." Upon examination, it was determined that the Veteran was suffering from major depressive disorder (moderate, without psychosis) and PTSD. These diagnoses were again noted at the time of discharge. A June 2006 VA outpatient treatment record also reflects diagnoses of anxiety and a borderline personality disorder. The Veteran was seen for a VA examination in August 2006. She reported that she was sexually abused under the age of 5. She also reported being married from 1983 to 1989 and that she experienced severe physical and sexual abuse during this marriage. She also reported that he broke both of her wrists on one occasion, although the record contains no medical evidence of this event. Upon examination, it was determined that the Veteran suffered from PTSD. However, the examining physician noted that the Veteran's claims of beatings, rape and sodomy at the hands of her husband could not be substantiated without corroboration of physical evidence. The examiner could not state with any degree of certainty that the Veteran's PTSD was secondary to her alleged military trauma without more concrete substantiation of these claims. The examiner further noted that the Veteran originally claimed military sexual trauma at the hand of officers, but that she was now relating all of her problems to "prolonged savage physical, sexual, and emotional abuse" by her first husband. The examiner offered a rather confusing opinion, stating that the Veteran's military sexual trauma was not caused by or a result of conditions treated while on active duty. The examiner explained that there was no evidence of treatment for severe physical trauma while on active duty. The Veteran was again admitted at a private facility in June 2007. The Veteran called emergency medical services due to increasing symptoms of depression with thoughts of suicide. The Veteran again reported being married from 1983 to 1989 to a man that frequently abused her physically and sexually. The Veteran was diagnosed with PTSD by history and it was noted that she questionably had a psychotic disorder with somatic delusions. Her discharge summary notes diagnoses of major depressive disorder with psychotic features (somatic delusions) and PTSD. The Veteran was seen by VA for a psychiatric assessment in June 2007. She reported marrying a man she met in the military in 1982. However, he was emotionally, physically and sexually abusive, and the Veteran referred to him as a "psychopath." The Veteran reported that she left him in 1989 and that she would have left him sooner except he threatened violence toward her family. Diagnoses of PTSD due to childhood abuse and adult sexual trauma, alcohol dependence in current remission and dysthymia were assigned. According to another June 2007 VA outpatient treatment record, the Veteran recently had a bad dream involving her ex-husband. This was noted to be very disturbing to her. The Veteran was also treated by VA on an in-service basis in July 2007. The Veteran was noted to be suffering from PTSD related to childhood abuse and adult sexual trauma. The Veteran was most recently afforded a VA examination in January 2009. The Veteran reported that she was physically abused by both of her parents and raped when she was 18 years of age. The Veteran also reported that during military service, she was physically and sexually abused by her husband and hospitalized several times because of the injuries she got from her husband. The examiner concluded that the Veteran met the DSM-IV criteria for an Axis I diagnosis of PTSD. This disability resulted in a poor psychosocial functional status. There was also anxiety, impaired sleep, panic attacks and lack of motivation. The Veteran was also noted to have borderline personality traits, although the examiner did not suggest that this condition was impacted by military service. The examiner concluded that the Veteran experienced significant traumas before joining the service and during her period of service. The examiner further opined that the nature of the pre-service and in-service abuse was so severe that all of these traumas could have resulted in the Veteran's PTSD and it was not possible to state which of those traumas really caused her PTSD symptoms. In addition to the above medical evidence, the record also contains a signed affidavit from an individual purporting to have known the Veteran since 1984. This affidavit was received by VA in November 2007. This individual described witnessing the Veteran's injuries resulting from the abuse she received from her husband. The above evidence demonstrates that service connection is warranted for a psychiatric disorder manifested by PTSD, major depressive disorder, dysthymia and anxiety. While there is no in-service diagnosis of a chronic psychiatric disorder or treatment for marital abuse, a number of service records do reflect treatment for symptoms such as depression and outbursts of anger. The Veteran was also diagnosed with dysthymic disorder in May 1984. Therefore, there is certainly evidence of in-service psychiatric symptomatology. Furthermore, the Veteran is more than competent to testify to her experiences while married to her ex-husband during military service and there is nothing of record to call into question the credibility of the Veteran's assertions. When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). As early as March 1998, the Veteran reported being in an abusive relationship. While a July 1998 record reflects that she was not yet prepared to discuss the details of this relationship, she began to describe her abusive relationship in 2003. Her version of events has been more or less unchanged since this time. The record also contains an affidavit from an individual who purportedly knew the Veteran at the time of the alleged abuse, corroborating her service stressor. As such, the Board finds the Veteran's description of abuse during military service has been corroborated and is credible. The Board recognizes that the Veteran originally asserted in July 2003 that her PTSD was due to demeaning and abusive language on the part of one of her sergeants. This is significantly different than her later assertion of an abusive marriage during military service. Nonetheless, the Board does not find that this undermines the credibility of the Veteran. In April 2004, prior to the issuance of any decision regarding her July 2003 claim, the Veteran informed VA that she also suffered mental, emotional and sexual abuse at the hands of her ex-husband during active duty. The mere fact that the Veteran believed her PTSD may have been related to multiple factors is not sufficient to demonstrate a lack of credibility. In addition to receiving numerous psychiatric diagnoses since separation including PTSD related to childhood abuse and adult sexual trauma and major depressive disorder, the January 2009 VA examiner concluded that the Veteran's abusive relationship during military service was as likely of a cause of her current PTSD symptoms as any other trauma she suffered as a child. The Board recognizes that the examiner was unable to state definitively whether the Veteran's in-service trauma was the cause of her PTSD. However, the examiner essentially indicated that this was at least as likely as not the cause of the Veteran's PTSD, as any of the Veteran's past trauma (including her reported sexual abuse during military service) "could have" caused her PTSD. As such, the evidence of record is at least in equipoise and service connection for a psychiatric disorder manifested by PTSD. Additional, in applying the benefit of the doubt, the evidence supports a finding that a major depressive, dysthymia and anxiety disorder is related to the Veteran's service experiences. The medical evidence shows that these diagnoses were at least, in part, due to the Veteran's service events. The Board recognizes that the August 2006 VA examiner indicated that there was no evidence corroborating the Veteran's report of in-service sexual trauma. However, as already noted, evidence from sources other than the Veteran's service records must often be relied upon to corroborate an account of a stressor incident such as sexual trauma. See, e.g., Patton, 12 Vet. App. at 277. The Veteran herself has provided more or less consistent statements regarding her in-service assault for approximately one decade. She also submitted a signed affidavit from an individual corroborating her report. Finally, service treatment records reflect symptomatology such as depression beginning in 1984. As a whole, the Board finds sufficient evidence to corroborate the Veteran's assertions. Also, the Board notes that the Veteran has also received diagnoses of borderline personality disorder or borderline personality traits. These are not disorders for which service connection can be granted. See 38 C.F.R. § 3.303(c). Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's psychiatric condition including PTSD, major depressive disorder, dysthymia and anxiety are related to the Veteran's experiences during her active military service. See 38 U.S.C. § 5107(b). Consequently, the claim is granted. ORDER Service connection for a psychiatric disorder, including PTSD, major depressive disorder, dysthymia disorder and an anxiety disorder, is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs