Citation Nr: 1319342 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-18 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from September 15, 1969 to June 10, 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Montgomery, Alabama Regional Office (RO). In October 2009, in relation to a separate appeal, the Board granted service connection for anxiety disorder and depressive disorder. FINDING OF FACT The Veteran has PTSD that is as likely as not attributable to personal assault during his active military service. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties 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 decision, the Board grants service connection for PTSD. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. II. Analysis Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Establishing service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). Regarding his claim of service connection for PTSD, the Veteran alleges that he experienced an in-service stressor involving personal assault. The regulations provide that if a PTSD 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. 38 C.F.R. § 3.304(f)(5). Additionally, VA will not deny a PTSD claim that is based on in-service personal assault without first advising the Veteran that evidence from sources other than the Veteran's service records or evidence of behavioral changes may constitute credible supporting evidence of the stressor in 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. Id. 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 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). The Veteran's May 1969 enlistment examination notes no psychiatric abnormalities; however, the Veteran's service treatment records do include psychiatric treatment records. An April 20, 1970 psychiatric consultation documented the Veteran's complaints of nervousness and anxiety, but no diagnosis was provided at this time. On April 29, 2009, the Veteran was given a psychological examination, and diagnosed with chronic moderate passive-dependent personality that existed prior to service. Through a Medical Board proceeding, the Veteran was ultimately separated from service, based on this diagnosis of personality disorder. A February 2003 statement from private psychiatrist, Dr. Fields, indicates that the Veteran had received psychiatric care for some time and was currently diagnosed with major depression, panic attacks, obsessive compulsive disorder and general poor sense of self. Dr. Fields opined that the mental and physical abuse that the Veteran reported receiving during his military service would be a strong contributing factor to his present condition. The psychiatrist indicated that the Veteran had never recovered from his experience and that his condition had worsened over time. Affidavits from three fellow service members from June and July 2003 indicate that while serving in the Marines in boot camp in Paris Island, South Carolina in 1969, they observed Sergeant J.E. choke the Veteran, who was the guide at the time, for going straight when the platoon was told to go left. On another occasion the service members observed staff Sergeant F.J. punch the Veteran in the side with his fist, leaving bruises, for not marching correctly. On a third occasion, the fellow service members saw Sergeant C kick the Veteran a couple of times in the right side and punch him in the face with his fist for missing a part of a mountain climber exercise. As a result, the Veteran was so badly bruised that he feared that his family would find out what happened on graduation day. In a July 2003 statement, a school friend of the Veteran indicated that he noticed a behavior change in the Veteran after he returned home after serving in the Marines. The friend indicated that the Veteran seemed distant and unsociable and drank to excess. He also got into a lot of fights, even with the friend. The Veteran was not the same as he was before he entered the Marines and showed a lot of anger at times. In March 2005, the Veteran was provided a VA psychological examination in connection with his earlier claim for service connection for psychiatric disorder other than PTSD. The examiner diagnosed the Veteran with an anxiety disorder, which was not caused by or a result of military service. The examiner found that the Veteran suffered from a severe character disorder, which was attributable to familial factors. In a subsequent January 2007 letter, Dr. Fields indicated that the Veteran initially presented with a complicated history of past abuse growing up under a mother with schizophrenia and severe physical and emotional abuse while in the Marines. Consequently, he carried a variety of diagnoses including PTSD, obsessive-compulsive disorder (OCD), panic disorder and major depression. At a March 2008 psychological assessment, the Veteran reported an awful childhood with ongoing emotional abuse at the hands of his parents, as his mom had schizophrenia and his dad was an "abusive alcoholic." The Veteran also reported that he experienced abuse during his military service. The psychologist diagnosed the Veteran with PTSD, major depressive disorder and panic disorder with agoraphobia. In August 2008 statement, the Veteran indicated that he was continually subject to mental and physical abuse by his drill sergeants during basic training. When serving as a platoon guide, he was choked by Sergeant J.E. for marching straight when he was told to go left. The Veteran noted that he did not go left because he did not hear the command. Sergeant C also kicked him several times in the right side of his ribs while he was on the ground during a mountain climber exercise and when he tried to get up, the Sergeant punched him in the mouth with his fist drawing blood. The Veteran indicated that he was left badly bruised. Additionally, the Veteran reported that staff Sergeant J hit him in the side with his fist, leaving him bruised, for not marching correctly. The Veteran noted that the sergeant informed him that if he caused the platoon to flunk inspection, "he was dead." Although the Veteran has more frequently been diagnosed with anxiety disorder and depression, disorders already subject to service connection, he has also been diagnosed with PTSD by his treating psychiatrist, Dr. Fields, and by the March 2008 psychologist. Consequently, he is reasonably shown to have the disability. Also, given the specific accounts of the three fellow service members in corroboration of the Veteran's account, the Board finds that the reported personal assaults in service by various sergeants is reasonably shown to have occurred. In regard to a link between the current PTSD diagnosis and the abuse during service, once again, Dr. Fields initially noted in February 2003 that after 12 visits, he had concluded that the mental and physical abuse suffered in service would be a strong contributing factor to the Veteran's present condition. Then, in his subsequent January 2007 letter, he added that the Veteran carried a diagnosis of PTSD, which had resulted from past abuse as a child and from severe physical and emotional abuse while in the Marines. Thus, the weight of Dr. Fields opinion is buoyed by a significant treatment history. In contrast, although the VA examiner did review the claims file, he simply noted that the Veteran had a "severe character disorder," but did not opine on whether the Veteran's diagnosed anxiety disorder was related to service. Thus, the probative value of Dr. Field's medical opinion relating the PTSD at least in part to the personal assaults in service, is equal to, if not greater than, the probative value of the March 2005 VA medical opinion. Consequently, there is sufficient evidence to link the Veteran's PTSD to the personal assaults during military service. With the resolution of any reasonable doubt as may be present in favor of the Veteran, the Board concludes that the criteria to establish service connection for PTSD are met. ORDER Service connection for PTSD is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs