Citation Nr: 1319645	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  12-08 317	)	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:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and J.M.


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from January 1976 to March 1982.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2008, April 2010, and May 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for PTSD.

In July 2012, the Board remanded this case for further development in order to schedule the Veteran for a hearing before a Veterans Law Judge.  The case has returned to the Board for appellate review.

In November 2012, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the electronic file.  In November 2012, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration.  38 C.F.R. § 20.1304(c) (2012).  Therefore, the Board may properly consider such newly received evidence.

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's diagnosed PTSD is at least as likely as not related to service.


CONCLUSION OF LAW

The criteria for establishing service connection for PTSD have been 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

Veterans Claims Assistance Act

Since the Board is granting service connection for PTSD, there is no need to engage in any analysis with respect to whether the requirements of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)), have been satisfied.  That matter is moot.

Analysis

As an initial matter, the Board notes that the Veteran's August 2007 claim for entitlement to service connection for PTSD was denied in a May 2008 rating decision.  Evidence associated with claims file in April 2010 includes VA treatment records dated in April 2009 showing a diagnosis of chronic PTSD due to military sexual trauma (MST).  These records were constructively of record within a year of the May 2008 rating decision and are new and material evidence, particularly since there was no diagnosis of PTSD at the time of the May 2008 rating decision.  Therefore, those April 2009 VA treatment records precluded the May 2008 rating decision from becoming final.  See 38 C.F.R. 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

To establish entitlement to service connection for PTSD the evidence must satisfy three basic elements.  There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).

In the present case, the Board finds that the evidence supports an award of service connection for PTSD.  First, the evidence reflects that the Veteran has a diagnosis of that disorder during the pendency of the claim-in this case, in or after August 2007.  McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim).  Specifically, the Veteran's treating VA psychologist diagnosed her with PTSD in April 2009 and July 2009.  A treating VA psychiatrist also diagnosed the Veteran with PTSD in December 2009 and April 2010.

Second, the Board finds that there is a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor.  Specifically, the aforementioned VA psychologist and VA psychiatrist both attributed the Veteran's current PTSD to in-service MST.  In a July 2009 letter, the VA psychologist opined:

[The Veteran] was referred to me for an evaluation to determine if she has Post Traumatic Stress Disorder (PTSD), and it is my clinical decision that she has PTSD, chronic, secondary to Military Sexual Trauma.  The trauma was domestic violence, broken nose, concussion as well as emotional and verbal abuse which occurred while they both served in the Army.  She presented with severe depression and per patient in receiving Social Security [disability benefits] due to inability to maintain employment because of the depression.

Additionally, the March 2002 physician who conducted an evaluation of the Veteran for her Social Security Administration disability benefits claim found that she had severe chronic PTSD and major depression, based in part on being raped by her husband during service.  Based on those clinical determinations, the Board finds that there is a link, established by medical evidence, between the Veteran's current symptoms of PTSD and her in-service stressors.

Third, the Board finds that there is credible supporting evidence that the claimed in-service stressors occurred.  As an initial matter, the Board acknowledges that the inability to obtain the Veteran's full service treatment records is not evidence for or against her credibility.  At an April 2009 evaluation with her treating VA psychologist, the Veteran reported experiencing domestic violence from her husband during service, including suffering a concussion, broken nose, and multiple instances of anal rape, and having a .45 caliber pistol placed in her mouth.  The Board finds that this evidence is credible.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  Additionally, the Veteran has provided evidence of a Court-ordered Protective Order due to domestic violence dated April 2006, as well as police reports of domestic disputes and disturbances dated July 2004 through April 2006, prior to her documented July 2009 divorce.  While these events took place after the Veteran's service, they tend to corroborate her consistent statements of domestic violence by that same husband during her service.

Furthermore, the Veteran has provided ten corroborating statements, with markedly differing signatures, attesting to the Veteran's experience of domestic violence during and after service.  These statements include one from the Army clinician who treated her for a concussion and bleeding head, which the Veteran had told her was perpetrated by her husband; one from the Veteran's husband's superior officer, who gave him an article 15 for pulling his private gun on the Veteran during service; one from the Veteran's daughter; and one from the Veteran's ex-husband in which he admitted to using "extreme and potential[ly] deadly physical mental and torturous acts of violence against my wife at the time."

Because of the consistency of the evidence-including the Veteran's statements for the purpose of treatment, the police reports of domestic violence, the corroborating statements of witnesses, and the Veteran's own testimony at the November 2012 travel board hearing documenting the aforementioned stressors-and because of the absence of any evidence to the contrary, the Board finds that the Veteran's reports of in-service stressors are credible.

Under the circumstances, and taking into consideration the totality of the evidence, the Board is persuaded that the criteria for an award of service connection for PTSD have been satisfied.  The evidence, at a minimum, gives rise to a reasonable doubt on the question.  38 C.F.R. § 3.102 (2012).  Therefore, the appeal is allowed.


ORDER

Service connection for PTSD is granted.



____________________________________________
K.A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs