Citation Nr: 1322861 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 09-25 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran had active military service from October 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two September 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which both denied service connection for posttraumatic stress disorder (PTSD). The Veteran originally claimed service connection for PTSD, which the Board recharacterized in its October 2012 remand. A claim for PTSD necessarily entails the additional consideration of whether the Veteran is entitled to service connection for any acquired psychiatric disorder, as per the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). Specifically, a claim for PTSD "must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and, the information the claimant submits or that the Secretary obtains in support of the claim." Id. at 5. Accordingly, his claim has been reframed as seeking service connection for an acquired psychiatric disorder. The Veteran requested a hearing before the Board in his July 2009 substantive appeal. In June 2012, the Veteran filed a written statement withdrawing his hearing request. Under these circumstances, the Board finds that the Veteran has been afforded his opportunity for a hearing and that his request to testify before the Board has been withdrawn. 38 C.F.R. § 20.704(e) (2012). Review of the Virtual VA paperless claims processing system reveals additional treatment records that are pertinent to this claim. Accordingly, they have been thoroughly reviewed for purposes of adjudicating this claim. FINDING OF FACT The Veteran has PTSD with depression that is as likely as not related to events during his active military service. CONCLUSION OF LAW The criteria for service connection for PTSD with depression are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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 with depression. 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 under the VCAA is not necessary. 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. § 1110, 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). Section 4.125(a) requires the diagnosis to conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Regarding the Veteran's claim of service connection for PTSD, he alleges multiple instances of sexual assault from a fellow sailor, including fondling, kissing, masturbation, and forced penetration. In Cohen, the Court held that a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressor. Cohen, 10 Vet. App. at 142. That is, generally speaking, a stressor cannot be established as having occurred merely by after-the-fact medical nexus evidence. See also Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). The evidence necessary to establish the occurrence of a stressor during service varies. In PTSD claims that are based on in-service physical or sexual assault, the Court has clarified that the general rule as set forth in Moreau does not apply. See YR v. West, 11 Vet. App. 393, 399 (1998); and Patton v. West, 12 Vet. App. 272, 279-280 (1999). That is, in these other types of claims, an opinion by a medical professional based on a post-service examination can be used to establish the occurrence of a stressor. 38 C.F.R. § 3.304(f)(5). See also 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). Because personal assault is an extremely personal and sensitive issue, many incidents are not officially reported, which creates a proof problem with respect to the occurrence of the claimed stressor. In such situations it is not unusual for there to be an absence of service records documenting the events the veteran has alleged. Therefore, evidence from sources other than the veteran's service records may corroborate an account of a stressor incident. Patton, 12 Vet. App. at 277. Examples of alternative evidence that may corroborate the veteran's account of the stressor assault are provided in 38 C.F.R. § 3.304(f)(5). The list includes, but is 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. Id. 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. Id. The Board remanded the Veteran's claim in September 2012, in part for the provision of a VA examination. The examiner was asked to determine whether the Veteran's symptoms fulfill the criteria for a diagnosis of PTSD and whether there is evidence in the record that supported the Veteran's allegations of in-service sexual assault, which he first disclosed to treatment providers in 2012. A previously conducted VA examination, dated in May 2011, which did not diagnose PTSD, was found to be inadequate for adjudicatory purposes because it appeared the opinion was partly based on findings made by the RO that the Veteran's stressor was not corroborated. The Veteran had two VA examinations in March 2013 with the same examiner, on March 8, 2013, and on March 25, 2013. It appears the examiner was asked to revisit the issue because the March 8th examination did not show how the Veteran's symptoms complied with the PTSD criteria under the DSM-IV. The Board finds both examinations to be probative to the claim, in aggregate, as they were rendered after full examinations, including diagnostic tests and review of the Veteran's relevant history and claims file, and were accompanied by explanatory rationale. The VA examiner diagnosed the Veteran with PTSD and recurrent major depressive disorder, both in accordance with the DSM-IV. The Veteran's symptoms conformed to the PTSD diagnostic criteria. The examiner also found the Veteran's stressor-multiple sexual assaults involving fondling, kissing, masturbation, and one incident of anal penetration-was adequate to support a PTSD diagnosis. During the March 25th examination, the Veteran disclosed for the first time that he was anally raped, and explained to the examiner that he was too ashamed to mention it at the previous examination. He said that he finds it very hard to discuss the incidents to anyone. The VA examiner indicated there is a link between the sexual assaults and his symptoms, including anxiety around other people, nightmares of the events that took place, hypervigilance, irritability, and thoughts of harming himself or others. Additionally, diagnostic test results further supported the examiner's opinion. In addressing whether the alleged in-service sexual assault occurred, the VA examiner explained that she found no conclusive evidence, which the Board observes is not uncommon. See Patton, 12 Vet. App. at 277. She reviewed his records and noted that he was seen in service for sores and rashes on his penis, which she said might indicate sexual contact with another. She also noted that he had an unauthorized absence, for which he was punished, and which the Veteran explained was an effort to avoid his attacker. She said that he told her about his changed behavior after the incidents, but she could find no support for that. She nonetheless opined that he was sexually assaulted, which she based on his present symptoms and demeanor during the examination and his reports of changed behavior following the incident (including substance abuse, frequent job changes, angry outbursts, and poor interpersonal relationships). She said that the Veteran's difficulties in social and occupation life, with fighting, depression, and suicidal ideation, are consistent with sexual assault. In reviewing the evidence of record, the Veteran's service treatment records (STRs) show that he sought treatment for a urethral lesion and chancroid in April 1968, for sores all over his penis in April 1969, and a rash on his penis in August 1969. His service personnel records also document an unauthorized absence in July 1969, when he was gone for over 16 hours and missed the departure of his ship. The Veteran's recent mental health treatment records support the VA examiner's conclusions. He has attended individual therapy at VA facilities since opening up about his assault, and his treatment provider has diagnosed him with PTSD attributed to sexual trauma. During those therapy sessions, he has expressed feelings of shame about what happened and that he was unable to stop it from happening. He has problems with trust, and generally feels uncomfortable around other men and crowds. His therapist was working with him in exploring the impact that sexual trauma has on self-esteem and the ability to trust. He told his therapist that after he left the Navy, he had troubles at work and frequently got into fights. See generally VA treatment records dating from February 2012 through July 2012. The Veteran is competent to testify to his own personal experiences. Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, the Board finds his assertions regarding the in-service assaults and his responses to it are credible, and therefore probative. There is no evidence that contradicts or probatively outweighs them. Rather, despite not being disclosed until 2012, his statements are consistent with the other evidence of record. Rucker v. Brown, 10 Vet. App. 67 (1997). The Board recognizes the Veteran told an earlier VA examiner that his unauthorized absence was due to his fear of returning to Vietnam, and that he told the March 2012 VA examiner it was to avoid his attacker. Again, his failure to disclose it until 2012 is consistent with the rest of the evidence, as he apparently did not talk about his assault at all until then. The Board notes that the Veteran was divorced from his first wife in the 1970s, which supports his assertion regarding his difficulty with relationships. He also has provided the name of his attacker, as well as a picture. In sum, the Veteran has been diagnosed by the March 2013 VA examiner and his VA therapist with PTSD due to sexual trauma, which, in this type of case, are supporting evidence that the claimed in-service stressor occurred. See Menegassi, 683 F.3d at 1382. The Veteran has testified to a change in behavior. His records from service show that he had sores and rashes on his penis, and that he had an unauthorized absence. He said he was trying to get away from his attacker. When resolving the doubt in the Veteran's favor, the Board finds that the stressor as likely as not occurred, and that he has PTSD that is attributed to that stressor. In view of this finding, the Board concludes that the criteria for service connection for PTSD are met. See 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Therefore, service connection for PTSD and recurrent major depressive disorder is warranted. ORDER Service connection for PTSD and recurrent major depressive disorder is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs