Citation Nr: 1321084 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 13-11 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from August 1972 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Chicago, Illinois. The Veteran currently resides within the jurisdiction of the Reno, Nevada VARO. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in May 2013. A copy of the transcript of that hearing is of record. 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 relevant competent evidence is in relative equipoise as to whether the Veteran has an acquired psychiatric disorder, to include PTSD and anxiety, that is related to his active service, specifically to in-service personal assault. CONCLUSION OF LAW With application of the doctrine of reasonable doubt, an acquired psychiatric disorder, to include PTSD and anxiety, was incurred in active service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As discussed in more detail below, sufficient evidence is of record to grant the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD and anxiety. Therefore, no further development is needed with regard to this issue. II. Pertinent Laws and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For certain chronic disorders, to include psychosis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, for disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), such as PTSD and anxiety, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). To establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. Generally, 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 (although several presumptions exist which serve to ease this evidentiary burden in some cases). 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a). Further, there are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(4) , provides that PTSD based on a personal assault in service permits evidence from sources other than the Veteran's service records which may corroborate his or her 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. 38 C.F.R. § 3.304(f)(4). VA's Adjudication Procedures Manual (M21-1MR) also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1MR, Part IV, Subpart ii, 1.D.17.g. 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)(4). It is important to note that, for personal assault PTSD claims, an after-the-fact medical opinion can also serve as the credible supporting evidence of the reported stressor. Patton v. West, 12 Vet. App. 272, 280 (1999). Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) expressly held in Menegassi v. Shinseki, 638 F.3d. 1379 (Fed. Cir. 2011), that, in PTSD cases where the alleged in-service stressor is a sexual assault, "under 38 C.F.R. § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether occurrence of the stressor is corroborated." Accordingly, the Federal Circuit held that favorable medical opinions that diagnose PTSD must be weighed against all other evidence of record for purposes of determining whether a claimed in-service sexual assault has been corroborated. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Under the benefit-of-the-doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994). III. Service Connection Claim The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Specifically, he maintains that he has PTSD due to an in-service sexual assault. He notes that during service, he was caught smoking marijuana and was sent to the brig for 30 days. The Veteran stated that he befriended a soldier and "hung out" with him in the brig. On one occasion in the shower, his friend made a comment about the size of his penis and reached over to grab it. According to the Veteran, on subsequent nights when he went to sleep, someone grabbed his penis and fondled it. This went on for several days until he was notified that his father had died. The Veteran was allowed to go home and attend his father's funeral. After he returned to the military, he completed his time without further attack. The Veteran contends that due to his military sexual trauma (MST), he developed PTSD. The Veteran's service treatment records are negative for any complaints or findings of a psychiatric disorder, to include PTSD and/or anxiety. The records are also negative for any reports or findings of a sexual assault. The records show that in June 1973 and August 1973, the Veteran was found guilty of possessing a minute quantity of marijuana. After his second offense, he was given 30 days of correctional custody. In a July 1973 performance evaluation, prior to his incarceration, it was noted that the Veteran's performance during recent months had deteriorated to a level far below that normally expected of a prospective Naval Petty Officer. In November 1973, it was reported that the Veteran was not recommended for reenlistment as a result of his marginal contributions to the squadron's readiness. He was discharged later that month. In his November 1973 discharge examination, he was clinically evaluated as "normal" for psychiatric purposes. In March 2010, the Veteran filed a claim of entitlement to service connection for mood swings. Private treatment records from the Vet Center, dated from June 2011 to September 2012, show that in June 2011, the Veteran underwent a psychiatric evaluation. At that time, he stated that during service, he was sent to the brig for smoking marijuana. While he was in the brig, he befriended another soldier. On one occasion while they were in the showers, his friend made a comment to him about the size of his penis and grabbed it. According to the Veteran, he felt "frozen and scared" at that moment. After the incident, each night when he went to sleep, someone grabbed his penis and fondled it. That went on for several days until he was notified that his father had died. He was allowed to attend his father's funeral. Upon his return, the attacks stopped. However, the Veteran indicated that he started to experience nightmares and flashbacks about the attacks. According to the Veteran, he could not focus and became paranoid. The Veteran reported that his superior officer noticed something was wrong and asked him to leave the military and he agreed. He noted that for many years after his discharge, he abused drugs. In 1992, he became sober. However, the Veteran stated that he continued to have nightmares and he patrolled his house nightly. He indicated that he had problems with authority figures and had a severe temper. He also noted that he had anxiety, was easily startled, and felt emotional numbness and detachment. Following the mental status evaluation, the Veteran was diagnosed with following: (Axis I) PTSD due to military sexual trauma, polysubstance dependency (remission 20 years), depression, (Axis III) high blood pressure, diabetes, (Axis IV) poor social support, family and relationship problems, economic problems, and (Axis V) Global Assessment of Functioning (GAF) score of 50. The examiner stated that the Veteran had PTSD based on the in-service sexual trauma, the feeling of fear during the trauma, and the knowledge that the event forever changed him. According to the examiner, the Veteran was isolated and avoided people, and had nightmares and flashbacks of the event. The remainder of the records show intermittent treatment for PTSD. VA Medical Center (VAMC) outpatient treatment records show that in October 2012, the Veteran underwent a psychological evaluation that was conducted by S.Z., a psychologist. The VA examiner stated that the Veteran was being treated for PTSD. The Veteran indicated that he continued to experience severe, chronic depression, anxiety, anger, irritability, labile mood swings, periodic flashbacks, nightmares, hypervigilance, survivor guilt, and social withdrawal resulting from his traumatic MST experience while service in the military. The Veteran's MST involved the previously described sexual approaches and fondling by another sailor. Following the mental status evaluation, the Veteran was diagnosed with the following: (Axis I) PTSD, severe, chronic (MST), (Axis IV) multiple psychosocial stressors resulting from severe chronic PTSD (MST), and (Axis V) GAF score of 45. The VA psychologist opined that it was more likely than not that the Veteran's PTSD was related to his in-service MST. In December 2012, the Veteran underwent a VA examination. The examiner stated that according to the Veteran, while he was in the brig for using marijuana, another sailor observed him showering and commented on the size of his penis. The examiner indicated that contrary to some treatment records, in the current interview, the Veteran reported that he was neither touched nor horrified during that episode. The Veteran specifically stated that he was not raped. According to the examiner, the Veteran also noted that there were times at night when he felt himself being touched while sleeping. However, upon questioning, the Veteran stated that he never saw anyone touching him which suggested that those experiences could have been dreams. No threat of violence or physical harm was involved and there was no coercion. The Veteran reported some symptoms of PTSD that he attributed to those incidents (such as reduced trust and avoidance of being touched) but the examiner indicated that the Veteran's reported stressor failed to meet current diagnostic criterion. According to the Veteran, he first received mental health treatment in the mid-1980's for mood swings. He noted that his anxiety and depression had worsened in recent months due to medical problems including a failed penile implant. The Veteran described his recent mood as sad and anxious. He did not describe any clear panic symptoms. The Veteran reported some symptoms of PTSD such as nightmares and occasional hypervigilance related to exposure to gang activity prior to military service, but did not endorse enough symptoms to meet PTSD diagnostic criteria. He made vague complaints of minor perceptional disturbances such as hypersensitivity to sound and seeing movement at the periphery of his vision, but did not report any clear psychotic symptoms. Following the mental status evaluation, the examiner concluded that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. He stated that the Veteran's stressor of sexual approaches and fondling by another sailor did not meet Criterion A for a diagnosis of PTSD. The examiner diagnosed the Veteran with the following: (Axis I) anxiety disorder not otherwise specified (NOS), with associated depressive symptoms, (Axis IV) medical problems, moderate to severe, and (Axis V) GAF score of 55. In regard to the question of whether the Veteran's anxiety disorder was caused by his MST, the examiner checked the box that indicated "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." However, the examiner indicated that he would have preferred the option of stating that he was unable to make a determination. The Veteran did not meet full diagnostic criteria for PTSD but did report anxiety symptoms due to sexual abuse that occurred while serving in the military. Unfortunately, identification of markers of military sexual trauma was complicated by numerous factors. For example, substance abuse could be considered such a marker, but was markedly present prior to military service. Similarly poor performances of military duties could be such a marker, but the Veteran also described a history of poor academic performance that could account for his poor performance of duties, as could the substance abuse he participated in while in the military. The Veteran also reported some anxiety symptoms related to exposure to gang violence prior to military service, further complicating the determination. According to the examiner, the anxiety symptoms that the Veteran reported were credible and consistent with anxiety that could develop in response to unwanted sexual approaches. The examiner indicated that he did not disbelieve his account, but with regard to the issue of markers of military sexual trauma, he had to state that he was unable to make a determination due to multiple confounding factors. Pursuant to 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based upon in-service personal assault, evidence from sources other than the Veteran's service records may cooperate the Veteran's account of the stressor incident. Specifically, the United States of Court of Appeals for Veterans' Claims (Court) held that a medical opinion based on a post-service examination of a veteran can be used to establish the occurrence of a stressor; however, the Board may consider and weigh this evidence in the context of the entire record. Menegassi v. Shinseki, 638 F.3d. 1379 (Fed. Cir. 2011). In this case, the Vet Center records include a June 2011 diagnosis of PTSD based on the Veteran's MST. In addition, the October 2012 VAMC outpatient treatment record includes a diagnosis of PTSD based on MST. These opinions are credible because the examiners offered reasonable medical bases for their conclusions. Thus, although the record lacks an in-service report of sexual assault, the provisions of 38 C.F.R. § 3.304(f)(5) do not necessarily require in-service documentary evidence of the alleged assault; rather, a medical opinion may suffice to establish that the personal assault occurred. See Menegassi, supra. Therefore, the Board finds the aforementioned opinions substantially meet this requirement and the Board accepts as true that the Veteran experienced MST during service. The Vet Center records and the October 2012 VAMC outpatient treatment record support the Veteran's contention that he has PTSD due to MST. However, in the December 2012 VA examination, the examiner concluded that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. Thus, this evidence opposes the Veteran's contention. Nevertheless, even though the examiner opined that the Veteran did not have PTSD, he did diagnose the Veteran with an anxiety disorder. In addition, he noted that the anxiety symptoms that the Veteran reported were credible and consistent with anxiety that could develop in response to unwanted sexual approaches. Moreover, even though the examiner stated that with regard to the issue of markers of MST, he was unable to make a determination due to multiple confounding factors, the examiner also indicated that he did not disbelieve the Veteran's account of MST. Given that the examiner accepted the Veteran's account of MST and noted that the Veteran's anxiety was consistent with anxiety that could develop in response to unwanted sexual approaches, the Board finds that the examiner essentially linked the Veteran's currently diagnosed anxiety disorder to his MST. Upon a review of the evidence of record, the issue of whether the Veteran has an acquired psychiatric disorder, to include PTSD and anxiety, that is related to his MST, is in relative equipoise, i.e., about evenly balanced for and against his claim. In these situations, the Veteran is given the benefit of the doubt. Consequently, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran has an acquired psychiatric disorder, to include PTSD and anxiety, that was incurred in service. 38 C.F.R. § 3.102. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit- of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue). As such, the Board will grant this appeal. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and anxiety, is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs