Citation Nr: 1317668 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 06-38 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from April 1972 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied service connection for PTSD. In October 2010, and November 2012, the Board remanded the claim for additional development. FINDING OF FACT The Veteran has PTSD as a result of his service. CONCLUSION OF LAW PTSD was incurred as a result of the Veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran asserts that he has an acquired psychiatric disorder, to include PTSD, as a result of his active military service. Specifically, he argues that he was sexually assaulted on "April [redacted], 1972," while in basic training at the Great Lakes Naval Training Center, and that he had to spend ten days in the infirmary as a result. See e.g., Veteran's statement, dated in March 2005; December 2012 VA examination report. He asserts that he had a hernia prior to service, but that it had not given him any problem for about 8 years prior to service, and that although he was treated for a hernia during service, it was either caused or aggravated by the inservice assault (in April 2006, the RO denied a claim for service connection for right inguinal hernia repair). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Applicable regulations provide that 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 in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). In addition to the previously noted law, 38 C.F.R. § 3.304(f)(5) provides: If a post-traumatic stress disorder 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. VA will not deny a post-traumatic stress disorder 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)(5). With regard to subparagraph (f)(5), the Board notes that the discussion in the final rule notice issued in the Federal Register states that a doctor's recitation of a veteran-patient's statements is no more probative than the veteran-patient's statements made to VA. VA is thereby not required to accept a doctor's diagnosis of PTSD due to a personal assault as proof that the stressor occurred or that the PTSD is service connected. However, if VA finds that a doctor's diagnosis of PTSD due to a personal assault is ... "competent and credible" and there is no evidence to the contrary in the record, in all likelihood, such an opinion would constitute competent medical evidence." 67 Fed. Reg. 10330 -01 (Mar. 7, 2002). The Federal Circuit found that the regulation specifically designates - and VA's interpretation contemplates - that medical opinion evidence may be submitted to corroborate the in-service personal assault as the regulation lists records from mental health counseling centers, hospitals, or physicians. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed.Cir. 2011). The evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). In this case, the Veteran does not argue, and the evidence, including a review of the information contained in the Veteran's personnel file and his discharge (DD Form 214), does not show, that he participated in combat. In addition, the claimed stressor is not related to combat. Where a determination is made that a veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997). The Veteran's service treatment reports include a pre-induction report of medical history, dated on April 18, 1972, which shows that the Veteran denied a history of "rupture/hernia." The associated examination report did not note any problems. Reports, dated June 3, 1972, shows that he was treated for complaints of an enlarged right testicle, with a one-week history of slight pain. The impression was right hydrocele with small right inguinal hernia. There was no reference to a sexual assault or any evidence of trauma. A Medical Board Report (MBR), dated in June 1972, shows that he was found to have a right indirect inguinal hernia EPTE (existed prior to enlistment), and that he was recommended for separation from service due to "erroneous enlistment." Associated reports include a "statement of patient concerning the findings of a medical board," dated in June 1972, which shows that the Veteran signed a statement that he had been informed of the Board's findings, that he was found to be unfit for duty and was recommended for discharge, and that he did not desire to submit a statement in rebuttal. There is again no to any type of sexual trauma. The Veteran's service personnel records are also absent any findings pertaining to an in-service assault. Those records do suggest, however, he went through additional testing of his reading, writing, and math skills. Such lends some credibility to his assertion that the purported assault occurred while was going through some type of remediation prior to going to basic training. As for the post-service medical evidence, it consists of VA reports, dated between 2001 and 2012. This evidence shows that the Veteran was first treated for psychiatric symptoms in 2001, at which time he complained of a three-year history of psychiatric symptoms that included depression, irritability, and a lack of motivation related to marital difficulties. He also reported a history of "sexual abuse at school around the age of six or seven," which he has more recently recanted/clarified. The Axis I diagnoses were depressive disorder NOS (not otherwise specified), and partner relational problem. Thereafter, he received a number of treatments for psychiatric symptoms, and repeatedly complained of marital and family problems. The Veteran's first reference to have been sexually assaulted during service is documented in June 2003. The report notes that he related his problems to "a difficult childhood compounded by a rape in 'prep school' [a label given to training for those who failed Navy tests] that arose with his wife's infidelity." Overall, his diagnoses included PTSD, anxiety state, depressive disorder, and major depression. In a statement dated in December 2010, the Veteran's brother reported that the Veteran was darker and moodier following separation from service. He states that the Veteran got hostile and aggressive when he was drinking and doing drugs. He also states that the Veteran had a bad reaction to any type of physical contact. A statement from the Veteran's spouse shows that she states that she has been with the Veteran since 1981, and that his is moody, angry and depressed, and that he does not show affection. Statements from his treating therapist suggest that the Veteran was only able to divulge the details about his MST after extensive therapy and counseling. As a preliminary matter, the Veteran has not asserted that he ever filed a written complaint or police report, or that any other written records exist of his alleged stressor. It therefore appears that corroboration is not feasible, and that the claimed stressor cannot be documented. In this regard, in a memorandum, dated in January 2012, the Appeals Management Center (AMC) stated that a review of service personnel records was negative for any behavioral changes or sexually transmitted diseases, that there was evidence of sexual abuse prior to service, and that his claimed stressor could not be verified. Referral to the U.S. Army and Joint Services Records Research Center (JSRRC) would be fruitless. See M21-1MR, Part IV.ii.1.D.15.a. Although there were some discrepancies/inconsistencies in the history provided by the Veteran, the Board determined that the tenets of 38 C.F.R. § 3.304(f)(5) triggered the need to provide him with an examination. The matter was Remanded to obtain an opinion as to whether the Veteran met the criteria for a diagnosis of PTSD; and, if a diagnosis of PTSD was rendered, whether it was as likely as not that the PTSD was the result of the Veteran's alleged MST. A VA psychiatric examination report, dated in December 2012, shows that the examiner indicated that the Veteran's claims file had been reviewed. The diagnoses note PTSD, and depression secondary to PTSD. The Veteran asserted that he was sexually assaulted by two other sailors during service, in April 1972, which led to ten days of treatment in the infirmary. It was noted that he first received psychiatric treatment in 2001, at VA, with diagnoses of PTSD, depressive disorder NOS (not otherwise specified), and anxiety disorder NOS. The examiner indicated that it was at least as likely as not (50 percent or greater probability) that the claimed condition was incurred in or caused by the claimed in-service injury or event. The examiner explained: Preponderance of the evidence, including data from the clinical interview and record review suggests that the client meets the criteria for Posttraumatic Stress Disorder. Moreover, data suggests that reported symptoms are associated with moderate levels of impairment across indicated areas of functioning that are addressed throughout the report. Overall, it appears likely that the client's reported symptoms are manifestations of exposure to MST (military sexual trauma) while serving for the Navy in 1972. Medical opinion is based on review of medical records, clinical interview, psychological testing, clinical history, clinical impression and clinical expertise. In summary, based on a review of the Veteran's records, and an examination, a VA examiner has concluded that the Veteran has PTSD, and that his PTSD is due to a sexual assault that occurred during his active service. The final two elements of establishing service connection for PTSD are established in this opinion - a stressor and nexus opinion. There is no competent, countervailing opinion of record. The Board fully recognizes that there is a complete lack of in-service documentation of the assault. However, as noted, such an absence of documentation is not necessarily fatal to the claim. Recognition is also given to the Veteran's report that the assault occurred on April [redacted], 1972, which was prior to his entry into service. However, given the academic and possible intellectual hurdles that the Veteran has experienced, the Board is willing to accept that he may be confused as to the precise date of the attack. Given the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran has PTSD that is related to his service. Under such circumstances, the benefit of the doubt is awarded to the Veteran. 38 U.S.C.A. § 5107(b). Service connection is therefore granted for PTSD. The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In this case, as the Board has fully granted the Veteran's claim for service connection, the Board finds that a detailed discussion of the VCAA is unnecessary. Any potential failure of VA in fulfilling its duties to notify and assist the Veteran is essentially harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for PTSD is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs