Citation Nr: 1325009	
Decision Date: 08/07/13    Archive Date: 08/13/13

DOCKET NO.  09-18 629	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety, depression, dissociative disorder, dysthymia, and affective disorder.


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney-at-Law


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel


INTRODUCTION

The Veteran had active military service from June 1969 to August 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

The Veteran's appeal has been recharacterized by the Board as indicated on the title page of this decision in light of the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claimant seeking service connection for psychiatric disability who has no special medical expertise is not competent to provide diagnosis requiring application of medical expertise to facts such as claimant's description of history and symptoms; VA should construe claim for service connection based on reasonable expectations of a non-expert claimant). 


FINDING OF FACT

With resolution of the doubt in favor of the Veteran, the Veteran's acquired psychiatric disability was caused by service. 


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disability are approximated.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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). The Board has considered this legislation, but finds that, given the favorable action taken below, no discussion of the VCAA at this point is required.

Merits Analysis

The Veteran seeks service connection for an acquired psychiatric disability. The evidence is in approximate balance and the claim will be granted. 

Service connection may be granted for disability 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(a) (2012). 

In order to establish service connection for the claimed disorder, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 

Service connection for PTSD requires medical evidence diagnosing the condition; 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 occurrence of an event alleged as the "stressor" upon which a PTSD diagnosis is based (as opposed to the sufficiency of the alleged event to cause PTSD) is generally an adjudicative determination, not a medical determination. Zarycki v. Brown, 6 Vet. App. 91 (1993). 

However, 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. 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. VA will not deny a posttraumatic stress disorder 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. Most importantly as to this matter, 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. See Gallegos v. Peake, 22 Vet. App. 329 (2008); Patton v. West, 12 Vet. App. 272 (1999); 38 C.F.R. § 3.304(f). 

Prior to the receipt of the Veteran's claim, 38 C.F.R. § 3.304(f) was amended with specific regard to PTSD claims based upon personal assault, and is now consistent with the holdings of the Court and VA evidentiary procedures, as described above. 38 C.F.R. § 3.304(f). 

The Veteran alleges that she was sexually assaulted while in service.  Specifically, she alleges general harassment occurred at Offutt Air Force Base and specific harassment by a physician at Wright Patterson Air Force Base (WP).  She stated the WP harassment significantly raised her blood pressure and distorted her menstrual cycle.  She also claims to have been ordered to see a psychiatrist while in service because of her behavior, but no record of such visit is in her service treatment records (STRs).

Her STRs and service personnel records reveal that she married in December 1969.  Her July 1970 separation examination shows she was noted to have depression because of geographical separation from her husband.  Additionally, a July 1970 personnel record confirms that this distance put "a severe strain" on her marriage and finances, and that because of this impediment, she was granted an honorable discharge.

Post-service treatment records reveal a diagnosis of anxiety in September 2003.   A May 2006 VA treatment record details the Veteran describing depressive and anxiety symptoms related to "sexual abuse by a health care professional."  The record is then replete with examples of treatment the Veteran sought at VA facilities for these symptoms.  Most notably, a September 2007 VA treatment record found that a clinical interview, when combined with psychological testing, revealed the Veteran's symptoms to be "congruent with a diagnosis of PTSD."  The examining physician found the Veteran "probably experienced a traumatic event in the past that continues to be a source of distress and produces recurrent episodes of anxiety."  The Veteran was found to endorse "components of hypervigilance, irritability, and autonomic arousal."  The examining physician diagnosed the Veteran with PTSD and chronic major depressive disorder and found a history of military sexual trauma (MST), social isolation, and medical concerns.

During a VA compensation examination in April 2008, the Veteran reported a combination of depressed mood and anxiety, with anxiety being her primary complaint.  The examiner noted the Veteran has been divorced twice, and that she experienced intercurrent stressors in 2006 including medical concerns, ongoing pain, and concern over a medical malpractice case.  The examiner concluded he could not diagnose the Veteran with PTSD in the absence of a verifiable in-service stressor, and he suggested she exaggerated the frequency, duration, and severity of her symptoms.  The examiner diagnosed her with anxiety disorder.  He further noted the record did not reflect the occurrence of a MST and that her anxiety disorder did not have its onset in service.

In January 2012, Dr. Albert Fink, the Veteran's private physician performed a Mental Status Evaluation.  Dr. Fink reported the Veteran did not have any emotional difficulties prior to service, but that her military experience caused her to be depressed and anxious for "many years," and that after service "she turned to substance abuse for a time."  Dr. Fink stated that "it is more likely than not that [the Veteran] has been experiencing significant psychological difficulties as a result of her military experiences."  He found "a clinical profile of [the Veteran] that suggests, more likely than not, that she experienced  a significant stressor while in the military, leading to a symptom complex that is chronic in nature and with a major, ongoing impact on occupational and social functioning" consistent with the 2007 assessment.  Dr. Fink diagnosed the Veteran with chronic PTSD and a major depressive disorder.

Further medical inquiry could be undertaken with a view towards development of the claim, but the Board finds such would not materially assist it in its determination.  Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52   (1993); see also Massey v. Brown, 7 Vet.App. 204 (1994). 

The Veteran's statements, post-service medical records, and post-service behavior are consistent with those factors as found in 38 C.F.R. § 3.304(f). The medical evidence reveals divergent opinions as to whether the Veteran has PTSD and the occurrence of a MST.  However, consistent with 38 C.F.R. § 3.304(f), the Veteran has been diagnosed of PTSD and a finding of a MST by a VA physician and private physician all based on the implicit finding that the Veteran sustained a personal assault in service, 

The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. This point has been attained. 

Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied and service connection for an acquired psychiatric disability will be granted. See Alemany v. Brown, 9 Vet.App. 518 (1996); Brown v. Brown, 5 Vet.App. 413 (1993).

The RO will establish a disability rating and effective date in the first instance. 


ORDER

Service connection for an acquired psychiatric disability is granted.
 


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs