Citation Nr: 1323511 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 09-44 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a chronic headache disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from April 1974 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 RO rating decision, which denied the benefits sought on appeal. In March 2010, the Veteran testified at a hearing at the RO before a Decision Review Officer. The Board notes that the Veteran has been diagnosed with PTSD, in addition to other psychiatric disorders. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has characterized that issue as set forth above. FINDINGS OF FACT 1. A current headache disorder had its onset in active service. 2. The Veteran has currently diagnosed PTSD that has been attributed by mental health professionals to in-service sexual assault and there is evidence of behavior changes in response to the assault. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic headache disorder have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. An acquired psychiatric disorder, to include PTSD, was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for chronic headaches and an acquired psychiatric disorder, to include PTSD. As this represents a complete grant of the benefits sought on appeal, no further notice or assistance is needed to aid the Veteran in substantiating her claims. Service connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires 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). The Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. 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, 492 F.3d at 1376-77. 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); see also Jandreau, 492 F.3d at 1376-77. 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 United States Court of Appeals for the Federal Circuit (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 United States Court of Appeals for Veterans Claims (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). Chronic headaches The Veteran contends that she developed a chronic headache disorder in service. A Veteran is competent to testify to factual matters of which she had first-hand knowledge. Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the personal knowledge of the witness. Here the Board finds that the Veteran is credible and competent to report that she had headaches in service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Significantly, her reports of headaches in service are corroborated by the service treatment records, which documented complaints of headaches in April 1975 and September 1985. Moreover, on separation from service in October 1985, the Veteran reported a history of frequent or severe headaches, as well as sinusitis. The clinician who examined the Veteran reported frequent tension type headaches also associated with sinusitis. The Board also finds her reports ongoing recurrent headaches since service to be credible. See Layno v. Brown, 6 Vet. App. at 470 (1994). Lay evidence concerning recurrence of symptoms after service, if credible, can be competent, despite the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). After service, a private treatment report in June 2005 noted complaints of intermittent headaches for approximately 10 years. A November 2005 report recorded an assessment of probable tension headaches. She was seen again in March 2006 for headaches, and in May 2007 she was diagnosed and treated for migraine headaches. Additionally, while a nexus opinion was not provided, on VA neurological examination in May 2008, the examiner diagnosed diffuse occasional headaches ongoing for 10 to 20 years. Moreover, subsequent VA treatment records documented treatment for migraines, and in June 2010 the Veteran reported onset of chronic headaches in 1978, with onset of migraines 5 years earlier. The Board considers the Veteran's statements regarding the onset of headaches in service and the recurrence of symptomatology since service to be credible as they are facially plausible, internally consistent, and consistent with the other evidence of record, to include medical history recorded in the service and post-service VA treatment records. Caluza v. Brown, 7 Vet. App. 498 (1995). Because the Veteran is competent to report recurrent symptomatology since the initial in-service manifestation of headaches as noted in the service treatment records, she is competent to relate her current disability to her active service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). After considering all the evidence and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has a chronic headache disorder that had onset during her period of service. Therefore, the Board finds that a chronic headache disorder was incurred in active service, warranting service connection. The benefit-of-the-doubt rule (38 U.S.C.A. § 5107(b) has been considered in making this decision. Acquired psychiatric disorder, to include PTSD The Veteran asserts that she developed PTSD due to her experiences in service, to include military sexual trauma. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (under the criteria of 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) (2012). When the evidence does not establish that a Veteran is a combat Veteran, or she is not claiming a combat stressor, her stressors must be supported by credible supporting evidence. Pentecost v. Principi, 16 Vet. App. 124 (2002). When the claimed PTSD stressor is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the in-service stressor/incident, such corroboration may consist of evidence of behavior changes in response to the assault. See 38 C.F.R. § 3.304(f)(5). 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. Id. Additionally, in the context of a PTSD claims based on personal assault, "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Thus, courts has made plain that, in the context of a PTSD service connection claim based on in-service personal assault, a favorable medical evidence diagnosing PTSD based on the Veteran's account of in-service assault must be weighed against all other evidence of record when determining whether ca claimed in-service personal assault has been corroborated. See Menegassi, 638 F.3d at 1382 n.1. In statements after 2007, the Veteran identified numerous in-service stressors while stationed in Germany, to include: being sexually assaulted by a fellow serviceman; a helicopter crash in 1982 that resulted in the deaths of 2 Air Force personnel; being caught in a crowd of hostile protesters; proximity to a bomb explosion in a U.S. base, and; other general acts of terrorism. In a statement in November 2007, the Veteran described going out with a fellow service member who was her roommate's friend, and who attempted to rape her. Reportedly the Veteran's roommate walked in on them and she was able to run away. She was later counseled by her roommate and her boyfriend not to press charges against the perpetrator. Similarly, in a February 2010 statement and at the March 2010 personal hearing she described being raped on her 20th birthday by a fellow service member who was a friend of her roommate. Reportedly, she was talked out of pressing charges the next day by her roommate and her roommate's boyfriend, as well as her attacker, who also apologized to her the following day. After service, an October 2007 private psychiatric evaluation report noted the Veteran's complaints of stressful situations in service while stationed in Germany, to include an incident when a fellow serviceman tried to force himself on her sexually, along with a diagnosis of generalized anxiety disorder with anger. A January 2009 VA social work assessment report noted the Veteran's report of being sexually abused as a child. She also described an attempted sexual assault upon arrival in Germany during service. The perpetrator was her roommate's friend. She stated that she had been talked out of pressing charges. Additionally, she stated that she was sexually molested by a friend, at his apartment, in 1983. The impression was PTSD from multiple traumas, to include military sexual trauma. Other identified stressors were being physically abused by her father as a child and her mother's murder prior to service. A February 2009 treatment note recorded a diagnosis of PTSD from multiple traumas, including military sexual trauma. On psychological VA evaluation in March 2009, the Veteran reported multiple in-service stressors including military sexual trauma due to attempted rape. She also related sexual and physical abuse prior to service and after service discharge. She endorsed psychiatric symptoms related to sexual trauma in and out of service and the clinician determined that the symptoms were not specifically tied to the incident in service alone. Following a discussion of the DSM IV criteria, the psychologist diagnosed chronic PTSD, rule out alcohol dependence, rule out major depressive disorder. A psychiatric evaluation report in April 2009 diagnosed chronic PTSD with depression. The Veteran underwent a VA PTSD examination in August 2010. Significantly, the VA examiner's opinion supports the Veteran's claim. On examination, the Veteran related being sexually assaulted in service 2 weeks after she arrived in Germany. She reported that on that day, she had been partying with an acquaintance who then accompanied her to her room. While there, he pressured her to have intercourse and while she consented initially, she subsequently refused and tried to escape. Reportedly, her roommate walked in and she was able to get away. The following day she met with her roommate, her roommate's boyfriend, and the perpetrator, who apologized for his actions the previous night. The Veteran agreed not to press charges at that time. The examiner diagnosed chronic PTSD and identified the primary stressor as in-service military sexual trauma. The examiner found no other psychiatric disorders co-occurring with PTSD. In an addendum report in February 2011, the VA examiner reiterated that the diagnosis of PTSD was based on the reported military sexual assault. There is no competent medical evidence that contradicts the VA examiner's opinion. The Veteran has a current diagnosis of PTSD. The treating VA psychiatrist, psychologist and social worker, have diagnosed PTSD associated, at least in part, with military sexual trauma. VA examiners have also diagnosed PTSD. Hence the first element for service connection under 38 C.F.R. § 3.304(f) is established. These mental health professionals have also related the current disability to the in-service assault. While various pre- and post-service stressors have also been noted. The mental health experts have attributed all or part of the current PTSD to the in-service assault. The second element for service connection under 38 C.F.R. § 3.304(f) is; therefore also established. The August 2010 VA PTSD examination includes findings that there were behavior changes in response to the in-service assault. In response to a question about changes in functional status and quality of life following the trauma exposure; the examiner reported that the Veteran tended to isolate, did not trust other people, particularly men; and was so distrusting of people that she had difficulty establishing relationships. The examination report is consistent with the other medical evidence of record, including the VA and private clinical treatment records. Accordingly, the elements needed to establish service connection for PTSD have all been demonstrated. See Menegassi, supra. Thus, the evidence satisfies the criteria to establish service connection for PTSD and the Veteran's claim is granted. The evidence does not establish the presence of other psychiatric disabilities during the period since the Veteran's claim. To the extent that other psychiatric disabilities have been diagnosed, this decision grants service connection for the Veteran's psychiatric disability, regardless of diagnosis. See Clemons. (CONTINUED ON NEXT PAGE) ORDER Service connection for a chronic headache disorder is granted. Service connection for an acquired psychiatric disorder, to include PTSD, is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs