Citation Nr: 1316012 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 09-13 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, V.Z. and J.Z. ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from December 1984 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In March 2013, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board observes that the United States Court of Appeals for Veterans Claims (Court) held that, when a claimant identifies posttraumatic stress disorder (PTSD) without more, it cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court found that such an appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) her mental condition, whatever it is, causes her. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, the record shows that the Veteran has diagnoses of various psychiatric disorders. Accordingly, the Board has characterized the issue as set forth on the title page. 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 PTSD that is as likely as not related to her active duty. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, she has PTSD that was incurred in her military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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 issue of service connection for a psychiatric disorder. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Analysis The Veteran contends that she has PTSD due to in-service sexual assaults. Specifically, she contends being assaulted by M.H. and then coerced into a sexual relationship with another serviceman to protect her from retaliation from M.H.'s friends. See, e.g., April 2007 stressor statements. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases (e.g., psychoses) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Entitlement to service connection for PTSD requires medical evidence diagnosing PTSD in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f); 4.125(a). Where the claimed stressor is not related to combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the veteran's account as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f) (2012); Cohen v. Brown, 10 Vet. App. 128 (1997). Evidence denoting participation in combat includes award of decorations such as the Combat Action Ribbon, Combat Infantryman Badge (CIB), Purple Heart Medal, and decorations such as the Bronze Star Medal that have been awarded with a Combat "V" device. If a PTSD claim is based on claimed 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 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 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. 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)(3) (2012). In Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to claims for PTSD based on personal assault. In particular, the Court held that the provisions in M21-1R, Part IV, Subpart ii, Section D, Chapter 17, which address PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-99 (1998). (The Board notes that the aforementioned are the current provisions related to PTSD claims based on personal assault). M21-1R, Part IV, Subpart ii, Section D, Chapter 17 states that, in cases of sexual assault, development of alternate sources for information is critical. There is provided an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred, to include medical records, military or civilian police reports, reports from crisis intervention centers, testimonial statements from confidants, and copies of personal diaries or journals. Id. Also of particular pertinence are the provisions of 38 C.F.R. § 3.304(f)(3) which state that behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. The Court in Patton stated that such changes in behavior should be examined and clinically interpreted to determine whether they constitute evidence of "(v)isits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment." In this case, the Veteran's DD 214 shows that her military occupational specialty (MOS) was that of an air traffic controller. The Veteran has not contended PTSD related to combat stressors; rather, she has reported in-service sexual assaults. Where VA determines that the Veteran did not engage in combat with the enemy, or that the Veteran did engage in combat with the enemy but the claimed stressor is not related to such combat, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the Veteran's account as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); Cohen v. Brown, 10 Vet. App. 128 (1997). With regards to the corroboration of stressors, the Board observes the recent amendment to 38 C.F.R. § 3.304 concerning stressors based on a veteran's "fear of hostile military or terrorist activity." Specifically, the amendment provides that, if a stressor claimed by a veteran is related to the veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)); 75 Fed. Reg. 41,092 (July 14, 2010) (correcting the effective date of the rule published on July 13, 2010). For purposes of this section, "fear of hostile military or terrorist activity" means that "a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, . . . and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." 75 Fed. Reg. at 39,852. In this case, the Veteran has not reported fear of hostile military or terrorist activity; therefore, the amendment does not apply to her appeal. Accordingly, her statements concerning her stressors may not be accepted, standing alone, as sufficient proof of their occurrence. The Veteran's service treatment records (STRs) show no treatment for, or diagnosis of, any psychiatric disorder. Examinations throughout her service repeatedly showed a normal psychiatric system. There is no indication that she sought treatment in service for any symptoms associated with a currently diagnosed psychiatric disorder. Her records do reveal that she was seen for a suspected pregnancy in April 1985. She was treated for a bladder infection in September 1985. A gynecological examination in September 1986 was normal; the Veteran was prescribed birth control. The Veteran was shown to have squamous atypia in October 1988. A cervical biopsy in December 1988 revealed findings suggestive of human papillomavirus (HPV). The Veteran reported having zero pregnancies and zero abortions in August 1989 and April 1990. In March 1991, a history of herpes simplex virus was reported. The Veteran's STRs do not show the report any sexual assaults while in service. Her personnel records do not include any unsatisfactory performance evaluations. There is no indication of a change in work performance at any time during her service. The Veteran reported that she did not make a request for a duty assignment change; she also reported that there was no change in leave usage or in performance. See August 2007 statement. Her records do confirm that she was stationed on board the U.S.N.S. Chauvenet. According to post-service medical records, a VA general medical examination in October 1992 revealed no evidence of psychiatric or personality disorder. The Veteran was seen for symptoms associated with PTSD and schizoaffective disorder in October 2006. An October 2006 record shows that a diagnosis of PTSD was strongly considered with a history of military sexual assault. The Veteran had major difficulty talking about her military sexual trauma. In November 2006, the Veteran reported that she was sexually assaulted by her father from the ages of three to six. The Veteran was unable to provide details regarding her in-service sexual trauma in her VA treatment records. In her April 2007 stressor statement, the Veteran reported that the assault by M.H. occurred in June 1985 when her ship, the U.S.N.S. Chauvenet, was stationed in Indonesia. She reported her shipmates were able to stop the assault and reported the incident, which resulted in a captain's mast. M.H. was reduced in rank and transferred off the ship. The Veteran reported that M.H.'s friends threatened to gang rape her in retaliation. The merchant seaman cook on the ship offered to protect her in exchange for being his girlfriend and having sex with him. The Veteran felt coerced into the sexual relationship with the cook. A January 2008 memorandum set forth the RO's efforts to verify the Veteran's reported stressors and concluded that the assault by M.H. could not be verified. This memorandum noted that the Naval Criminal Investigative Service (NCIS) had no records of any investigation and that the ship's deck logs could not obtained. The Veteran was afforded a VA examination in December 2010. She reported being sexually abused by her father as a child. The Veteran reported having two abortions in service in May 1987 and July 1987 resulting from her coerced relationship with the ship's cook. She reported the June 1985 assault as well as her coerced relationship with the ship's cook. The Veteran was diagnosed with PTSD. The examiner noted that although she was currently diagnosed with schizoaffective disorder and psychotic symptoms were described in the record at times, she did not display those symptoms in that interview. The examiner opined that the Veteran's childhood abuse by her father in itself could cause PTSD. It was however, more likely than not that her military sexual trauma would have exacerbated her condition if it pre-existed. The examiner noted that the Veteran attributed her current symptoms to the military sexual trauma and her symptoms were consistent with a diagnosis of PTSD. The examiner concluded that it was unclear what the contribution of her childhood molestation was to her current symptoms, but it was more likely than not her PTSD was significantly exacerbated by military sexual trauma. At her hearing, the Veteran's representative pointed out that NCIS would not have records since M.H. received a captain's mast. March 2013 Hearing Transcript (T.) at 3. The representative also clarified that the Veteran's in-service abortions occurred in 1985, not 1987. Id. The Veteran testified that she became pregnant and incurred sexually transmitted diseases from sexual assaults by the ship's cook. Id. at 4. The abortions were done in a Singapore hospital. Id. at 5. Since service, the Veteran had a lot of problems with maintaining employment due to psychiatric symptoms, and also received driving under the influence charges. Id. at 5-6. Her sister testified that a couple of years prior to being hospitalized in 2004, the Veteran was withdrawn from her family. Id. at 7. Based on a review of the evidence, the Board concludes that service connection for PTSD is warranted. The evidence clearly shows a current diagnosis of PTSD due to in-service sexual trauma. When affording the Veteran the benefit-of-the-doubt, the Board concludes that the evidence supports a finding that the Veteran's reported in-service stressors of military sexual assault occurred. Although the Veteran's STRs show a suspected pregnancy in April 1985, prior to the initial sexual trauma by M.H., they do show sexually transmitted diseases in 1989 and 1991. At her hearing, the Veteran testified that those sexually transmitted diseases resulted from her coerced sexual relations with the ship's cook. The Veteran is competent to report as to the incurrence of in-service sexually transmitted diseases. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds that the Veteran is credible. Throughout this appeal, the Veteran has been consistent with her reports regarding her in-service sexual trauma, to include being able to provide pertinent names. Of importance to the Board as well is that the December 2010 examiner appeared to find the Veteran's reports of her military sexual trauma credible. There is nothing in the examination report to indicate that the examiner did not believe the Veteran's assertions. As the examiner had the benefit of being able to conduct a face-to-face interview, as well as being able to review the claims file, the Board finds the examiner's acceptance of the Veteran's reported in-service stressors especially probative. The Board is cognizant that in cases where the claimed stressor is not related to combat and does not involve the fear of hostile military or terrorist activity, the record must contain evidence that corroborates the veteran's account as to the occurrence of the claimed stressor. In this case, considering the Board's finding that the Veteran is credible in reporting her in-service stressors, the in-service diagnoses of sexually transmitted diseases, as well as the Veteran's reports of difficulty in her civilian life after being discharged from service, are sufficient to corroborate her reported military sexual assaults. Therefore, the Board concludes that the evidence supports a finding of in-service stressors of military sexual trauma. In finding that the evidence supports the Veteran's claimed stressors, the Board acknowledges the Veteran's reports of having abortions resulting from pregnancies due to her coerced relationship in service. However, her STRs clearly show a denial of having previous pregnancies or abortions in 1989 and 1990, after the abortions reportedly took place. Although the Veteran has not provided any explanation for this inconsistency, considering the trauma she experienced in service, including being coerced into the relationship that caused the pregnancies, the Board finds it understandable that her abortions were not reported in service. Accordingly, the Board reiterates that the evidence supports a finding that her in-service stressors occurred. The evidence also supports a finding that the Veteran's PTSD is due to her in-service stressors. The only medical opinion of record, that of the December 2010 VA examiner, indicates that the Veteran's PTSD is due to her military sexual trauma. As discussed above, the examiner opined that the Veteran's childhood molestation could have caused her PTSD; however, if it did, then her military sexual trauma exacerbated it. In this case, there is no evidence of record to indicate that the Veteran had PTSD or any other psychiatric disorder prior to service. Her enlistment examination revealed a clinically normal psychiatric system. Therefore, as the Veteran was sound at service entrance, the medical nexus evidence shows that her PTSD is due to her verified in-service stressors. Her pertinent VA treatment records support the finding that her PTSD is due to her in-service military sexual trauma. There are no opinions to the contrary. Accordingly, in considering the Veteran's competent and credible lay statements, the confirmed stressors of military sexual trauma, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that the Veteran has PTSD related to her military service. The evidence is in favor of the grant of service connection for PTSD. Service connection for PTSD is, therefore, granted. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs