Citation Nr: 1322764 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 11-12 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active service from April 2000 to January 2001 and January 2003 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision of the Providence, Rhode Island, Regional Office (RO). In May 2013, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. In June 2013 he submitted additional evidence consisting of lay statements from himself, a family member, a friend, and a fellow Veteran with whom he served. The Veteran has waived initial RO consideration of this evidence and thus these statements will be considered by the Board in the adjudication of this appeal. The Board deems it necessary to address the procedural posture of the present matter on appeal. The September 2008 rating action denied service connection for an acquired psychiatric disorder, and the Veteran did not file a timely notice of disagreement. However, the September 2008 rating action failed to consider multiple relevant VA treatment records, dated from June 2009 to August 2009, which were associated with the claims file in August 2009, prior to the expiration of the applicable appellate period. These VA treatment records are deemed constructively of record at the time generated (i.e., June 2009 to August 2009) and VA was required to reconsider the September 2008 determination in light of these records. See Bell v. Derwinski, 2 Vet. App. 611 (1992); 38 C.F.R. § 3.156(b) (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Accordingly, the September 2008 rating action is the proper determination before the Board and the correct standard of review is de novo. While the disabilities claimed by the Veteran are posttraumatic stress disorder (PTSD) due to military sexual trauma (MST), depression, anxiety, and social phobia, claims of service connection for psychiatric disability encompass claims for all psychiatric disorders that are reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2010). Thus, the Veteran's claim encompasses PTSD and his other psychiatric diagnoses during the appeal period. 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 PTSD had its onset in service. CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f)(5) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS While the Veteran has filed claims for PTSD, anxiety, depression, and social phobia, he indicated at the May 2013 hearing that a grant of service connection for PTSD or any psychiatric disability would satisfy his appeal. In this decision, the Board grants service connection for psychiatric disability, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's PTSD claim is predicated on a reported history of in-service personal assault. VA 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. 38 C.F.R. § 3.304(f)(5). The United States Court of Appeals for the Federal Circuit (Federal Circuit) 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran' s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. The Veteran contends that the symptoms of his psychiatric disability were caused by MST and that they have continued since service. The evidence shows that the Veteran has PTSD, and significantly, in June 2009 the Veteran disclosed his MST to a VA psychiatrist and a subsequent VA PTSD assessment in August 2009 diagnosed chronic severe PTSD. The Board thus finds that the Veteran has a current acquired psychiatric disability. The Veteran reported in great detail at his hearing and in VA treatment records that he was the victim of MST in June 2000 during basic training at Parris Island. Personnel records show that he was in training at Parris Island from April 2000 to July 2000. The Veteran consistently testified that he told no one of this secret until he revealed it to his VA psychiatrist in June 2009. He reported that he went AWOL because of fear that MST would occur again. This unauthorized absence in October 2000 is reflected in his personnel records and, significantly, there is a note that he underwent mental health counseling immediately thereafter. Further, the lay statements submitted by the Veteran support his claim. In addition, a former fellow serviceman corroborate his account of the in-service stressor. In addition, his mother reported on the change in the Veteran's behavior since service. Despite the fact that the Veteran's STRs are negative for objective evidence of a MST, the Veteran is competent to report a history of MST and psychiatric symptoms that began in service. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. Moreover, the mere fact that his assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Further, in its capacity as finder of fact, the Board finds that the Veteran's testimony is credible. It is internally consistent and consistent with the time, place, and circumstances of his service. 38 U.S.C.A. § 1154(a); Caluza. Finally, evidence of behavior changes following the claimed assault, including deterioration in work performance, substance abuse, and episodes of anxiety without an identifiable cause, may constitute credible evidence of a stressor incident. 38 C.F.R. § 3.304(f)(5). Evidence shows that following the claimed assault the Veteran's work performance deteriorated (AWOL), substance abuse occurred (opiate dependence), and he was diagnosed with social anxiety for which he was prescribed Paxil. Moreover, medical opinion evidence may corroborate a personal assault stressor and multiple VA mental health professionals have found the Veteran's report of MST to be credible. Menegassi. In light of the lay and medical evidence, the Board finds credible his report of an in-service stressor. Further, the VA psychiatrist and VA social worker who treated the Veteran for mental health connect his PTSD to his in-service MST. Specifically, in the August 2009 VA PTSD assessment, a treating VA psychiatrists states, "[t]his Veteran is a victim of MST, which occurred during bootcamp...the Veteran has spent the last eight years keeping the brutal assault to himself and has experienced both PTSD and secondary depression as a result. . . . [He] used opiates to 'numb the pain' of the memories of the assault." The Veteran was referred to a VA MST group. In addition, in August 2009, he was hospitalized after expressing to his VA psychiatrists suicidal ideation in connection with his MST and psychiatric symptoms. His discharge diagnoses included "PTSD (MST)." Since this time, his VA treatment records consistent show a diagnosis of PTSD due to MST. The Board acknowledges that the 2008 VA examiner did not find a diagnosis of PTSD or a link between service and acquired psychiatric disorders. However, that VA examination took place prior to the Veteran's disclosure of his MST and the resulting diagnosis of PTSD, hospitalization, and related treatment. Therefore, that opinion is based on an incomplete record. The Court has held that a medical opinion based on an inaccurate or incomplete factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the 2008 VA examiner's opinion as to nexus is not probative. Based on the foregoing, the Board finds that the evidence shows that the Veteran's PTSD had its onset in service. As such, service connection is warranted. ORDER Service connection for PTSD is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs