Citation Nr: 1323104 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-37 186A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active military service from October 1987 to June 1990. These matters are before the Board from a December 2005 rating decision of the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for PTSD. Jurisdiction over the claims file was subsequently transferred to the RO in St. Petersburg, Florida. The Veteran was scheduled for a Board hearing at the RO in April 2011. He failed to report for the scheduled hearing without explanation. He has not requested that the hearing be rescheduled. Therefore, his request for a Board hearing is deemed to be withdrawn. See 38 C.F.R. § 20.704 (2012). The record reflects that the RO has characterized the Veteran's psychiatric claim as a claim for service connection for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court found that an appellant's claim for service connection for PTSD should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider any 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. As is discussed in more detail below, the medical evidence of record in this case indicates that the Veteran has been diagnosed with various mental health disorders, including PTSD and depressive disorder, during the period of the appeal. The Board has recharacterized the Veteran's psychiatric claim accordingly. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The VVA file contains a March 2006 notification letter to the Veteran in compliance with the Veterans Claims Assistance Act of 2000 (VCAA). A review of the remaining documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is REMANDED to the RO. VA will notify the appellant if further action on his part is required. FINDING OF FACT The Veteran is not shown to have engaged in combat; his alleged stressor events in service are not combat or terrorist activity related; there is no credible supporting evidence that the claimed in-service stressors occurred; and any recorded diagnosis of PTSD is not based on an inservice stressor event corroborated by independent and credible supporting evidence. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters in October 2005 and March 2006 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. The October letter further advised the Veteran of the types of evidence that are acceptable toward showing physical or sexual assault in service. See YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272 (1999). These letters accordingly addressed all notice elements. Nothing more was required. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. See September 2009 Statement of the Case. There is no indication in the record or reason to believe that any ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, the Board notes that service treatment records (STRs), service personnel records, and post-service treatment records were obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran has also been afforded appropriate VA examination to determine the etiology of his claimed PTSD. The examination was adequate, as it was predicated on a full reading of the Veteran's medical records in the claims file. All of the pertinent evidence of record was considered, to include the statements of the Veteran, and the examiner provided a rationale for the opinion stated, relying on and citing to the records reviewed. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Law and Regulations To establish service connection for PTSD there must be medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304(f). Where the veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's testimony alone is not sufficient to establish the occurrence of the stressor, and it must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). On July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. 75 Fed. Reg. 39843 (July 13, 2010); see also 75 Fed. Reg. 41092 (July 15, 2010) (correcting effective and applicability dates). The revised rule provides: If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). When the claimed PTSD stressor is physical or sexual assault in service, 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, mental health counseling centers, hospitals, or physicians; and, statements from family members, roommates, fellow service members or clergy. Evidence of behavior changes following the claimed assault is one type of 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. 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 the 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)(4). The United States Court of Appeals for the 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 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). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Wood v. Derwinski, 1 Vet. App. 190, 192 (1991); however, a stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). See also, Pentecost v. Principi, 16 Vet. App. 124 (2002). Just because a physician or other health professional accepted an appellant's description of his experiences as credible and diagnosed appellant as suffering from PTSD does not mean the Board is required to grant service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. 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 Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran alleges that basic training was physically difficult and painful, especially because he had pneumonia and developed a hernia at that time, but his superiors did not listen to his cries for help. See August 2005 statement from the Veteran. The Veteran also alleges that his Staff Sergeant "B" made participate in a "black market" operation that supplied food to the Korean locals and deal drugs. Id. The Veteran also described an incident when, after drinking, snorting cocaine and smoking marijuana in the barracks with Sergeant First Class "B" and Specialist "R", he took a pill that the men gave him. He blacked out, and when he woke up he was being raped by both men. He provided a very graphic and detailed account of what transpired. Both men threatened to tell people that the Veteran engaged in homosexual acts. See August 2005 and October 2005 statements from the Veteran. He was unable to provide a date for this incident, indicating only that it occurred between 1988 and 1990. See VA Form 21-0781a submitted in December 2006. The Veteran's service personnel records show that he was counseled for absence from place of duty in October 1988 and was late for formation in December 1988. His rank was reduced one grade to E2 in April 1989 after writing six bad checks. The Board initially notes that no psychiatric problems were observed at service entrance. The Veteran's STRs show that he was brought in for blood alcohol testing in July 1988 and threatened suicide if his blood was drawn. This was found to be an idle treat and the Veteran was deemed a low suicide risk. In February 1989 he found "destroying" his room; he threatened suicide if he was not discharged from service. The Veteran declined a separation examination. Following service, the Veteran submitted a claim seeking service connection for various disabilities in November 1990. He did not report any history of sexual assault in service. VA treatment records dated from 1995 to 1996 similarly note that the Veteran was seen for various complaints, including psychiatric complaints and substance abuse. He reported a history of domestic and sexual abuse. However, and rather significantly, he did not report any history of sexual assault in service. No diagnosis of PTSD was noted at that time. In August 2005, the Veteran submitted a claim of service connection for PTSD. VA treatment records and examination reports dated from 2005 to 2009 note that the Veteran received treatment for various psychiatric disabilities, including PTSD. He reported a history of physical and sexual abuse by relatives when he was a child. He also reported getting drunk and high and then being forced to engage in homosexual acts by his superior officers on one occasion while in service. A September 2005 VA hospitalization discharge report and a September 2006 VA substance use disorder program discharge report note a diagnosis of PTSD secondary to military sexual trauma. Statements from the Veteran's father, stepmother, siblings and friend were received in October 2005, November 2006 and December 2006. The Veteran's father said he visited the Veteran in Hawaii in 1989 and could tell that something was bothering him; the Veteran would not talk about it. The Veteran's siblings and stepmother stated that they were close to the Veteran prior to his service, but he returned and was very distant and moody, and had a serious drug problem. The Veteran's friend stated that he had heard from others that the Veteran's personality changed after his military service. Specifically, he became moody and depressed. An August 2009 VA examination report notes that the Veteran reported a history of childhood physical abuse by his father and sexual abuse by a cousin from the ages of five to 10. His father also introduced him to using and dealing drugs as a child. The Veteran stated that he was raped by two NCO's during his military service, but did not report the incident. During service, he attained the rank of E3, but was honorably discharged as an E2 after receiving Article 15s for writing bad checks, drunk driving and failing a urine (drug) test. He also reported a history of drug (including cocaine, LSD, marijuana) and alcohol abuse since his teens, and stated that he has "done things with men in order to get drugs in the past." He indicated that he drank and used drugs every day during his military service. The Veteran's symptoms included depression, suicidal ideation, distressing dreams, difficulty sleeping more than four to six hours a night, isolative behavior and irritability. He reported numerous legal problems. After reviewing the Veteran's claims file and examining the Veteran, the VA examiner noted various psychiatric diagnoses, including PTSD. The examiner stated that the primary stressor for the Veteran's PTSD was his childhood sexual abuse. The examiner opined that the Veteran's PTSD is less likely than not caused by or a result of his military service. He noted the Veteran's history of "significant childhood sexual trauma that spanned a period of approximately five years," which was followed by a life of criminal drug use and dealing. The examiner further stated, "While [the Veteran] claims to have been "raped" while in the military, the story he provides is difficult to believe and there is no evidence that there was any change in personality or behaviors as a result of any such experience." The examiner questioned the veracity of the Veteran's account of being given pills which caused him to black out and become unresponsive during the rape, but yet being able to recall the specifics of the rape. The examiner also questioned the Veteran's claims that he started getting into trouble after the alleged rape, as personnel records show disciplinary problems (including an Article 15) both prior to and after time of the alleged rape. Moreover, the examiner noted the Veteran's significant drug history prior to the alleged inservice rape, and continued significant drug history after the alleged event. Likewise, he had significant antisocial personality features and emotional disturbances both prior to the alleged rape and after the alleged rape. Finally, the examiner stated that during the examination interview, the Veteran "was significantly more distressed when discussing his childhood sexual abuse trauma and he showed very little emotional distress when discussing the [military sexual trauma]." The Veteran did not receive any awards or decorations specifically denoting combat participation, and the record does not contain evidence otherwise showing that he engaged in combat with the enemy. He does not argue the contrary. Moreover, the evidence of record does not establish, nor is such contended, that the Veteran served in a location that would involve "fear of hostile military or terrorist activity" under 38 C.F.R. § 3.304(f)(3). Instead, the Veteran alleges two inservice stressors: physically difficult basic training that was made worse when his superiors did not listen to his complaints related to pneumonia and a hernia; and a sexual assault by two superiors. While the Veteran is competent to testify as to experiences, his statements are unsupported by other evidence of record and his account of the sexual assault is deemed not credible. Significantly, the Veteran's STRs are silent for any notations that he was treated in service for the results of any alleged assault. He maintains that he sustained injuries as a result of the assault but there is no record of the same. Recognition is to provided to the assertion that he may have been injured but reluctant to report the related injuries. However, there is some question as to why his fellow service members would choose ignore the signs that he had been injured. Personnel records are also absent any findings of deterioration in performance or new substance abuse. The Veteran has submitted no lay statements to corroborate his allegations. Regarding the second alleged stressor, i.e., alleging that his medical complaints were ignored during basic training, the putative stressor is not of a nature as to induce PTSD. Moreover, this stressor was only mentioned by the Veteran in connection with his claim for benefits, and never in a medical setting. The Veteran was first diagnosed with PTSD in 2005, the same year he first related accounts of an alleged inservice rape. However, it is not as though the record is silent prior to 2005. The Veteran submitted a claim seeking service connection for various disabilities in November 1990, but did not report any history of inservice sexual assault at that time. VA treatment records dated from 1995 to 1996 note that the Veteran was seen for various complaints, including psychiatric complaints and substance abuse. He reported a history of domestic and sexual abuse, but did not report any history of sexual assault in service. Had he been assaulted in service, there is no reasonable explanation as to why he would not report that assault but yet report earlier sexual abuse. Such is incongruous and would not be conducive to seeking out psychiatric care. After careful review of the evidence, the Board finds the Veteran has not provided any stressor that can be verified by the service department or provided any credible supporting evidence showing that his claimed stressor actually occurred. Notwithstanding the foregoing, the Board again recognizes 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. Such an opinion was in fact sought out in the present appeal, which yielded negative results. Specifically, while the August 2009 VA examination report shows a diagnosis of PTSD, the VA examiner related this diagnosis to a pre-service stressor, identified as sexual assault from the age of five to the age of 10, and not to any alleged in-service stressor. The VA examiner did not believe that a sexual assault occurred during the Veteran's active service. Reasons and bases for this opinion following examination of the Veteran and review of the record were provided. There is no medical evidence to the contrary. For these reasons, the Board finds that the weight of the evidence is against the finding that the Veteran was sexually assaulted in service, and that his present diagnosis of PTSD is instead related to a pre-service stressor, and is not etiologically related to service. The Board finds that a preponderance of the evidence is against the Veteran's claim of entitlement to service connection for PTSD. Accordingly, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for PTSD is denied. REMAND As noted above, the Board has construed the Veteran's claim to entitlement to service connection for an acquired psychiatric disorder other than PTSD. The evidence of record shows that the Veteran demonstrated some signs of aberrant behavior in service, which included threats of suicide, and that he was hospitalized from June 2005 to September 2005 for depressive disorder and polysubstance abuse. Records from 2006 describe a mood disorder. Although the Veteran underwent a VA psychiatric examination in August 2009, the examination report is inadequate for adjudication purposes. Specifically, the August 2009 VA examiner diagnosed the Veteran with PTSD and polysubstance dependence in full, sustained remission. The examiner failed to address whether it is at least as likely as not (50 percent probability or greater) that the Veteran's depressive disorder and mood disorder diagnosed during the period of the appeal (from August 2005) are related to his military service. In this regard, the Board notes that the Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A remand for another VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. The Veteran and his representative should be provided all required notice in response to the claim for service connection for psychiatric disorder other than PTSD. 2. The RO or the AMC should contact the Veteran and obtain the names and addresses of all medical care providers, VA and non- VA, who might have records, not already associated with the claims file, pertaining to post-service treatment or evaluation of a psychiatric disorder other than PTSD. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated with the claims file. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. Thereafter, return the Veteran's claims file to the VA psychologist who provided the August 2009 opinion for an addendum opinion. If that psychologist is not available, any VA psychiatrist or psychologist can provide the opinion. The claims file must be made available for review and the addendum report should indicate that it was reviewed. The following question should be answered: Whether it is at least likely as not that the Veteran's current or recent psychiatric disability (other than PTSD) to include the depressive disorder and mood disorder noted on VA treatment records, had its onset inservice or is otherwise causally or etiologically related to his military service, or to some other cause or causes? Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. The RO or the AMC should then re-adjudicate the claim for entitlement to service connection an acquired psychiatric disorder other than PTSD. If the claim remains denied, the RO or the AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. By this remand the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs