Citation Nr: 1323013 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 05-31 849 ) 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: Shannon L. Brewer, Attorney ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1986 to June 1990 and from January to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's appeal was before the Board in March 2009 and September 2009. In June 2011, the Board denied the claim. The Veteran appealed to the Veterans Claims Court. In a January 2012 Joint Motion for Remand (JMR), the Court Clerk remanded the issue to the Board. In August 2012, the Board remanded the issue for further evidentiary development of obtaining a VA psychiatric examination. This was accomplished, and the claim was readjudicated in a March 2013 supplemental statement of the case. For this reason, the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with). FINDINGS OF FACT 1. The Veteran did not serve in combat while on active duty. 2. The Veteran has a current diagnosis of PTSD due to an in-service personal sexual assault stressor. CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. In this case, continuity of symptoms is required. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In this case, the claim on appeal (PTSD), is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror. See DSM-IV § 309.81 (4th ed. 1994). If a claim for service connection for PTSD is based on allegations of in-service personal assault, evidence from sources other than a veteran's service records may corroborate a 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 and such evidence 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). The regulation specifically provides that VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than a veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and 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. 38 C.F.R. § 3.304(f)(5). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d),(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In this case, the evidence does not show, nor does the Veteran allege, that he engaged in combat with the enemy during active service. He has specifically stated that his claimed PTSD is not due to combat experiences, but is due to an in-service personal sexual assault. The Board also finds that there is no objective evidence that he "engaged in combat with the enemy." For this reason, 38 U.S.C.A. § 1154(b) is not applicable. The Veteran contends that he suffers from PTSD due to an in-service sexual assault. Specifically, in an October 2005 statement, he stated that while in service he was invited to watch a football game with a petty officer at the home of fellow servicemember. Upon arriving to the house, he contends that he was drugged, his pants were removed, he was pushed onto a bed and sexually assaulted by the petty officer. The first requirement for any service connection claim is competent evidence of existence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this regard, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran has a diagnosis of PTSD in accordance with DSM-IV criteria. Weighing against the Veteran's claim are private treatment records from Dr. R.V.R. dated in March 2003, which reflect that he was assessed with generalized anxiety disorder, as well as depressive disorder, not otherwise specified. This is the first recorded mention of psychiatric symptomatology. Private treatment records from Dr. L.P., dated April 2003, reflect that the Veteran was diagnosed with psychotic disorder, not otherwise specified, as well as depressive disorder, not otherwise specified, and generalized anxiety disorder. VA outpatient treatment records dated in April 2003 reflect that he was assessed with schizoaffective disorder, and bipolar disorder was ruled out. VA outpatient treatment records dated in May 2003 reflect that the Veteran was diagnosed with bipolar disorder, and PTSD due to sexual trauma was ruled out. Pursuant to the Board's August 2012 remand, the Veteran was afforded a VA PTSD examination in March 2013 to clarify whether he had PTSD. The March 2013 examiner stated that a reliable diagnosis could not be proffered on the basis of a two hour examination, due in part, to the Veteran's alleged tangentiality and circumstantiality. The examiner found no evidence of sexual assault in the file and symptoms, currently and historically, suggested a mood disorder and /or psychotic disorder, but not PTSD. Present symptoms did not meet the diagnostic criteria for PTSD under DSM-IV criteria. Instead, the examiner noted that symptoms and the mental status examination suggested a possible mood disorder such as bipolar disorder and possible paranoid traits. Weighing in favor of a PTSD diagnosis is a letter from T.H.S. dated September 2005, which reflects that from March 2003 to November 2003, the Veteran was treated for severe anxiety and panic from flashbacks, nightmares, and constant fear of reoccurring sexual assaults (PTSD) of a drugging and raping during service. T.H.S. noted that the Veteran was treated for agoraphobia, bipolar I disorder, and PTSD. VA outpatient treatment records dated in June 2003, October 2003, March 2004, and November 2004 reflect that the Veteran was assessed with bipolar disorder and PTSD due to sexual trauma. Private treatment records from Dr. R.V.R. dated in May 2003 reflect that he was diagnosed with unspecified, recurrent major depressive disorder, as well as PTSD, and a personality disorder, not otherwise specified. Private treatment records from Dr. T.L.R., dated in April 2003, reflect that the Veteran was diagnosed with recurrent unspecified major depressive disorder, as well as PTSD and a personality disorder, not otherwise specified. In an April 2013 psychiatric medical opinion, psychologist J.M. diagnosed the Veteran with PTSD and schizoaffective disorder. J.M. conducted a thorough review of the claims file, including service treatment records, private medical records, VA treatment records, and compensation and pension examination reports. A detailed analysis of the medical evidence of record pertaining to the Veteran's psychiatric symptoms, treatment, and past diagnoses was provided. In sum, J.M. stated that the Veteran clearly met the DSM-IV criteria for a diagnosis of PTSD. Upon review of the evidence above, the Board finds that the evidence for and against a diagnosis for PTSD is sufficient to place the claim in equipoise. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that he has currently diagnosed PTSD. Next, the Board finds that there is some credible supporting evidence that the claimed in-service sexual assault occurred. The Veteran's statements regarding the in-service assault, coupled with corroborating statements from his mother describing the Veteran's behavioral changes, provide some evidence of the occurrence of the claimed in-service stressor of being sexually assaulted by a fellow service member. As in this case, where the claim for service connection for PTSD is based on allegations of in-service personal assault, evidence from sources other than a veteran's service records may corroborate a veteran's account of the stressor incident. The evidence of record in this case does not contain any reports from law enforcement authorities or rape crisis centers evidencing a sexual assault, and the Veteran does not contend that he made any such reports or that such records were created. Further, in-service Reports of Medical Examinations dated in April 1986, May 1990, and January 1991 reflect that the Veteran's psychiatric evaluation was clinically normal and he did not report any incidents of assault. Reports of Medical History dated in April 1986 and May 1990 reflect that he checked the 'no' boxes for frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. A Report of Medical History dated in January 1991 reflects that he made no complaints related to PTSD or any other acquired psychiatric disorder as a result of the claimed in-service sexual assault. Further, service personnel records do not indicate sudden requests that a military occupational series or duty assignment be changed without other justification, increased use or abuse of leave without apparent reason, changes in performance or performance evaluations, or any other factor that would corroborate or suggest that he was under severe stress. The Board finds that this evidence weighs against a finding that the in-service personal assault occurred. Corroborating the Veteran's contention of an in-service personal assault is a statement dated June 2012 from the Veteran's mother, D.H. In her statement, she noted that before he entered service he was fun-loving and was trying to educate himself and have a successful life. According to D.H., he had a "very normal life prior to service." Upon return from service, she stated that her son was extremely moody, with rapid mood swings. He was angry, sometime violent, and on other occasions would be very quiet. D.H. stated that the Veteran never wanted to discuss "why he was different" and she stated that she "practically had to force him to go to the VA for help." On one occasion, D.H. remembered that the Veteran did not bathe and did not change his clothes for five days. On another occasion, he became angry while making dinner and threw a potato through a wall. According to D. H., her other son took out a restraining order against the Veteran. She further noted that she had not spoken to the Veteran since 2007 because that was what he had requested. She stated that he was very angry with the whole family and had disassociated himself with all of them. For these reasons, the Board finds that the evidence is at least in relative equipoise as to whether the claimed in-service stressor has been substantiated. Resolving reasonable doubt in the Veteran's favor, the Board finds that his statements as to the occurrence of the in-service stressor have been corroborated by credible supporting evidence of his behavioral changes following the in-service personal assault. Next, the Board finds that a link, established by medical evidence, between current PTSD symptoms and the in-service stressor, has been met in this case. Specifically, in September 2005, T.H.S. noted that the Veteran was treated for severe anxiety and panic from flashbacks, nightmares, and constant fear of reoccurring sexual assaults (PTSD) of a drugging and raping during service. VA outpatient treatment records dated June 2003, October 2003, March 2004, and November 2004 reflect that he was assessed with bipolar disorder and PTSD "due to sexual trauma." The Board finds that this evidence tends to show that symptoms of PTSD were related to the in-service personal assault. Further, as noted above, psychologist J.M. diagnosed the Veteran with PTSD and schizoaffective disorder in April 2013. J.M. provided a detailed analysis of the medical evidence of record pertaining to the Veteran's psychiatric symptoms, treatment, and past diagnoses. In sum, J.M. stated that the Veteran clearly met the DSM-IV criteria for a diagnosis of PTSD. It was his opinion that the record, in total, supported a diagnosis of PTSD via military sexual trauma. The Board finds that the April 2013 psychiatric medical opinion from J.M. to be highly probative as it is predicated on a detailed and thorough review of the claims folder and medical records contained therein; contains a description of the history of the Veteran's symptoms; documents and considers the Veteran's behavioral changes an PTSD symptoms; and contains an opinion based on a detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for accessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The evidence of record weighing against a finding that PTSD is related to the in-service stressor is a VA outpatient treatment record dated May 2003. During the interview process, the Veteran reported having mood swings and hallucinations soon after service separation. He also reported being "drugged and raped while in the military." Despite a positive diagnosis of bipolar disorder, PTSD due to sexual trauma was ruled out. The May 2003 psychiatrist did not provide a rationale as to why PTSD was ruled out despite the Veteran's contentions of an in-service sexual assault. As such, the Board finds the May 2003 VA treatment report to be of little probative value on the issue of a nexus to service. In light of the above discussion, the Board finds that the weight of the competent evidence demonstrates that the Veteran's currently diagnosed PTSD is related to a stressful event of sexual assault during active service. Accordingly, service connection for PTSD is warranted. The claim of service connection for PTSD has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). ORDER Service connection for PTSD is granted. ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs