Citation Nr: 1316029 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 07-18 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from February 1975 to July 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's application to reopen his previously denied claim of entitlement to service connection for PTSD for failure to submit new and material evidence. In January 2009, the Board remanded the new and material evidence issue for procedural development. In a subsequent July 2011 appellate decision, the Board determined, inter alia, that evidence that was new and material to the psychiatric disability claim has been submitted, reopened the claim for a de novo review, and remanded it to the RO via the Appeals Management Center (AMC) in Washington, D.C., for evidentiary and procedural development. Thereafter, the claim was denied on the merits in a July 2012 rating decision/supplemental statement of the case. The case was returned to the Board in July 2012 and the Veteran now continues his appeal. FINDINGS OF FACT 1. The clinical evidence establishes that the Veteran has an Axis I diagnosis of PTSD. 2. The Veteran was exposed to verified in-service stressors that have been linked to his Axis I diagnosis of PTSD, which include being a victim of sexual assault and of witnessing a fatal military aviation crash. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f)(5) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As will be further discussed below, the Veteran's claim of entitlement to service connection for PTSD is being granted in full. Any error related to VA's duties to notify and assist with regard to this issue is rendered moot by this fully favorable decision. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159 (2012). There is no need to engage in any analysis with respect to whether the notice and assistance requirements have been satisfied concerning this particular matter on appeal. Furthermore, to the extent that there may be any due process concerns regarding the Board's review of the evidence recently obtained, there is no prejudice that will result from this full grant of the benefit sought. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's claim of service connection for PTSD is based on various stressors, including allegations of being a victim of a personal assault in service. Notably, he asserts that (1) he was sexually assaulted by a fellow service member, who was his assigned roommate, in April/May 1975 [See October 2008 BVA Hearing Transcript], and (2) that, in May 1978 he witnessed and responded to a crash of a jet fighter during an airshow where the pilot was decapitated [See June 2004 VA examination]. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). In addition to the laws and regulations outlines above, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) medical evidence establishing a link between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). With respect to the Veteran's assertions of being sexually assaulted in service, the Board notes that the Veteran's service treatment records reflect that he was seen for mental health/psychiatric counseling visits on various occasions in 1980. There are also service treatment records that reflect that he received care/counseling on various occasions for alcohol dependence in 1985 and 1991. The Veteran complained of depression or excessive worry in a Report of Medical History completed in October 1991. A review of the Veteran's personnel records reveals that there is no clear indication that a personal assault occurred and his medical records do not indicate treatment for physical injuries consistent with those associated with a sexual assault. The Veteran testified at October 2008 Board hearing that his substance abuse problems in service were his attempt to "self-medicate" and deal with the psychiatric aftermath of his in-service assault. See BVA Hearing Transcript (T.) at 17. The Veteran's uncorroborated testimony, with respect to his personal assault, is not sufficient to verify the personal assault stressor set forth in this case. The Board recognizes that the present case falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran alleges. See, e.g., Patton v. West, 12 Vet. App. 272 (1999). In any event, the Board acknowledges that the relevant regulations stipulate that, if a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran's service records may corroborate his or her account of the stressor incident. 38 C.F.R. § 3.304(f)(5) (2012). 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(s) 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. 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 (Court) 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); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence' " in personal-assault cases). The Board notes that a March 2010 VA treating psychologist's statement appears to relate the Veteran's diagnosed PTSD to the alleged military sexual trauma. He added that the Veteran reported experiencing stress relating to two distinct events, one of which is a military sexual trauma. The examiner opined that, based on previous testing and the current interview, the Veteran would meet Criterion A with regard to the in-service rape episode. The Veteran underwent a VA psychiatric examination in June 2012. The examination report reflects that the examining clinician reviewed the Veteran's claims file in conjunction with her evaluation. She acknowledged the Veteran's account of having been sexually assaulted early in his military career by a fellow serviceman who, at the time, was his assigned roommate. The Veteran reported that he had awoken from sleep to discover his roommate physically restraining and holding him down by his head and neck, after which he was raped by this serviceman. The examining clinician diagnosed the Veteran with PTSD on Axis I, and determined that his in-service rape stressor met Criterion A and was adequate to support this PTSD diagnosis. In her summary, the examiner presented the following discussion and objective conclusion, which states in pertinent part: Based on information from the clinical interview, psychological testing data, and veteran's records, veteran currently meets criteria for [PTSD]. The results of the current evaluation indicate that this veteran experienced a traumatic stressor which meets criterion A for a diagnosis of PTSD according to the [DSM-IV]. The veteran reports [having a constellation of psychiatric symptoms that] have created problems in [his] relationships, [his performance] on the job, limited the extent that he will engage in various activities in his life, and keeps him socially isolated and distant from others. His ongoing use of drugs and alcohol and related problems are just as likely as not to be a direct result of his sexual trauma[.] Veteran's description of depressed mood and lack of motivation most likely occur in the context of his PTSD and related problems. Based on the above information, this [examiner] concludes that veteran's current diagnosis of PTSD is a result of his sexual trauma in the service. [See page 12, VA Compensation & Pension Examination Report of June 1, 2012.] As previously stated, the Federal Circuit held in Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011), that a medical opinion may be used to corroborate a personal-assault stressor, noting that "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." This legal premise is directly applicable to the facts of the present case discussed above, and the Board therefore concludes that the findings and determinations presented in the March 2010 and June 2012 VA medical reports discussed above give credence to the Veteran's account of having been a victim of sexual assault during active duty. His PTSD symptoms are objectively deemed by the VA psychologists who interviewed him to be entirely consistent with, and indicative of, a person who had been sexually violated during military service. The Veteran's PTSD claim is further bolstered by the Board's own independent research regarding his purported stressor of having witnessed a fatal airshow crash during service. According to the Veteran's account, he witnessed an airshow accident in May 1978, while stationed at the Royal Air Force Base in Mildenhall, England (RAF Mildenhall), in which a pilot who was flying with an Italian Air Force aerobatics team was killed when he crashed his aircraft. The Veteran claimed that he socialized with the Italian pilot at the airbase's Non-Commissioned Officers' club in the evening before his fatal accident and the Veteran reported being horrified by witnessing the accident. The Veteran also presented a lurid account of having been ordered to retrieve the flight data recorder ("black box") from the aircraft wreckage and discovering the pilot's decapitated head still inside of his flight helmet. The claims file includes clinical evidence linking the Veteran's Axis I PTSD diagnosis with his reported airshow crash stressor. The report of a May 2004 VA psychiatric evaluation shows that a clinical psychologist considered the aforementioned stressor and presented an Axis I diagnosis of PTSD linked to this fatal airshow accident. In a VA memorandum dated June 2008, the RO determined that the stressor regarding the airshow crash could not be independently verified, given the absence of details provided by the Veteran. The Board, however, observes that in the time since this memorandum, advances in online accessibility to historical information from credible sources on the internet have given the Board the ability to conduct its own unofficial research. The Veteran's historical account and the information contained in his service personnel records present sufficient details that, when considered in conjunction with online research, indicate that this alleged stressor occurred coincident with his period of service. Specifically, news archives from the Associated Press indicate that although no fatal aviation accidents occurred in "May 1978" at RAF Mildenhall, there was apparently a fatal crash of a military jet in the Italian Air Force's aerobatics team (called Frecce Tricolori ("Tricolor Arrows")), which occurred in "May 1979" while the team was performing an aerobatics display at the Air Fete airshow held at RAF Mildenhall. See http://www.apnewsarchive.com/1988/Famed-Aerial-Squad-Pilots-No-Stranger-To-Tragedy-With-AM-Germany-Plane-Crash/id-566a1ca044e357266eeccbe89720b4b8. The crash resulted in the death of the aircraft's pilot, which was the sole fatality associated with the incident. A review of the Veteran's service personnel records establishes that he was stationed at RAF Mildenhall from October 1977 to November 1979, and would thus have been at this location when the fatal airshow accident of May 1979 occurred. Furthermore, the Veteran's military performance evaluation report, dated in September 1979, contains the remark that "[The Veteran] has supported the Air Fete here at RAF Mildenhall by escorting air crews coming here to perform for the show." This comment in the Veteran's personnel records is congruent with his account of having socialized with the Italian pilot who arrived as a guest at RAF Mildenhall and who was subsequently killed in the fatal airshow crash of May 1979. It also supports the premise that the Veteran witnessed the air crash. In view of the above discussion, the Board concludes that the clinical evidence associated with the claim demonstrates that the Veteran has a valid psychiatric diagnosis of PTSD that is compliant with DSM-IV criteria, and that this Axis I diagnosis is linked to the Veteran's in-service stressors of being a victim of sexual assault and of witnessing a fatal airshow crash. The Board further concludes that the clinical and historical evidence substantially verifies that these stressors actually occurred during the Veteran's period of active duty and that he was exposed to them in service. Therefore, resolving any doubt in the Veteran's favor, the Board will allow his appeal. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for PTSD is granted. ORDER Service connection for PTSD is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs