Citation Nr: 1325032 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-02 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) as secondary to a service-connected disability of the left eye with chronic foreign body sensation and headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1970 to November 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Jurisdiction of the claim was subsequently transferred to the RO in Anchorage, Alaska. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that 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. The Veteran has been diagnosed with a panic disorder with agoraphobia and PTSD. See VA Examination, January 2012. The Veteran repeatedly dates the onset of his psychiatric disorders to his military service and states that these conditions have continued to the present time. Thus, the record raises the issue that the Veteran's current symptoms arise from various psychiatric disorders, including PTSD, which began in-service. Additionally, the Veteran's initial May 2008 claim for benefits phrases the issue as entitlement to service connection for "severe mental stress." Therefore, the Board cannot limit its analysis of the Veteran's claim solely to PTSD. That is, the Veteran's PTSD claim potentially encompasses psychiatric conditions other than PTSD that are reasonably raised by the record. In compliance with the Court's holding in Clemons, the Board has recharacterized the claim as entitlement to service connection for an acquired psychiatric disorder, to include PTSD as secondary to a service-connected disability of the left eye with chronic foreign body sensation and headaches, as styled on the title page. The Veteran was scheduled for a videoconference hearing at the Anchorage RO on May 21, 2013. Notice of the hearing was mailed to the Veteran on May 2, 2013. The Veteran did not appear at the scheduled hearing and did not provide a cause for his failure to appear. To date, VA has not received any request from the Veteran to reschedule his May 2013 hearing. Therefore, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy. 2. The Veteran's panic disorder with agoraphobia and PTSD are the result of two in-service personal assault stressors for which there is credible supporting evidence. CONCLUSION OF LAW The Veteran's panic disorder with agoraphobia and PTSD were incurred due to active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that service connection is warranted for an acquired psychiatric disorder, including PTSD, as his disability was incurred due to traumatic events that occurred during active duty service, specifically, two separate personal assaults. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection for an acquired psychiatric disorder, to include PTSD, requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., 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 (unless the evidence shows that the Veteran engaged in combat and the claimed stressor is related to combat). See 38 C.F.R. § 3.304(f). 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; 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 may submit any evidence 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); VA Manual M21-1, Part III, Paragraph 5.14(c); see Gallegos v. Peake, 22 Vet. App. 329 (2008); see also Patton v. West, 12 Vet. App. 272 (1999). VA regulations allow a medical opinion to be used in corroborating a personal assault stressor. 38 C.F.R. § 3.304(f)(5); VA Manual M21-1, Part III, Paragraph 5.14(c); see Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the Court erred when it determined that a medical opinion based on a post-service examination of a Veteran could not be used to establish the occurrence of a stressor); see also Gallegos, 22 Vet. App. at 335 (alternative forms of evidence may be submitted to corroborate the Veteran's account of a personal assault stressor); see also Patton, 12 Vet. App. at 280 (rejecting the requirement that something more than medical nexus evidence is required for "credible supporting evidence" in personal assault cases). In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence can 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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). To determine the credibility of lay evidence, the Board may consider internal inconsistency of the Veteran's statements, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD, due to two in-service personal assaults. The first personal assault described by the Veteran occurred in December 1971 or January 1972. The Veteran was threatened with a bayonet by one of the men in his squad. The Veteran was able to escape and reported the incident, but the man who threatened the Veteran was made squad leader. The man continued to verbally threaten the Veteran over the next several weeks; however, an investigation was conducted and the man was finally removed from the Veteran's squad. The second alleged stressor occurred during the Veteran's time training at the Coronado Amphibious Operations Center in the spring/summer of 1971. While training, the Veteran befriended two fellow service members and went out with them one night to go drinking. The men took the Veteran to a friend's house, where the Veteran saw the friend and his two fellow service members engaging in sexual acts with one another. He attempted to flee the scene but was chased down by one of the service men and threatened with a knife. The Veteran was able to wrestle the knife away from the man and escape. The Veteran claims he was not sure what to do, but after a few days, reported the service men's behavior to his superior. Both of the Veteran's assailants were later court-martialed and the Veteran testified against one of them. However, prior to the two men being discharged from service, the Veteran was made to reside in the same barracks as them for six to eight months. During that time, he lived in constant fear of being physically or sexually assaulted by the men. Review of the Veteran's service personnel and service treatment records offers no report of the Veteran's claimed personal assault stressors. In this regard, the Board notes there is no record that the Veteran reported the asserted incidents to his superiors at the time, nor is there any official record of the incidents occurring. The RO contacted the Navy Judge Advocate General and Naval Criminal Investigation Service in an attempt to validate the Veteran's stressors, but neither entity had any records relating to the Veteran's claims of personal assault. The Navy Judge Advocate General did state that court-martial records are only held for 15 years and then destroyed, unless the defendant was awarded a punitive discharge or one year or more of confinement. However, the Veteran's service personnel records show that in May 1971, he failed the Embarkation for Amphibious Operations training course. This course was held during the time he alleges that the second personal assault took place. Additionally, the service personnel records documents that from May 1971 to August 1971, the Veteran was placed on "Admin Hold." This seems to corroborate the Veteran's statements that he was placed on a "Legal Hold" prior to testifying against his assailants at the court-martial. Additionally, in April 1972, a few months after being threatened with a bayonet, the Veteran was disciplined for failing to check out on liberty leave. These incidents contribute some credibility to the Veteran's claimed stressors. Additionally, the record contains personal statements from the Veteran's family members about his change in social behavior after the alleged in-service personal assaults. The letters state that before leaving for service, the Veteran was easy to get along with, had a great attitude, and was the life of the party but when he returned home after service he had a bad temper, was angry and withdrawn from social activities. Further, one of the Veteran's fellow service members wrote a buddy statement, confirming the Veteran's recollection of being threatened with a bayonet in approximately December 1971 or January 1972. The medical evidence of record establishes that the Veteran has been diagnosed with PTSD and a panic disorder with agoraphobia by VA and private health care providers. See VA Mental Health Examinations, January 2012 and October 2012; see also Fairbanks Psychiatric & Neurological Clinic, April 2009 and May 2009. The medical evidence also establishes a link between the Veteran's symptoms and his reported in-service personal assault stressors. Id. Specifically, the January 2012 and October 2012 VA examining doctors opined that the Veteran's PTSD and panic disorder symptoms were caused by his in-service personal assaults. The Board finds these medical opinions corroborate the Veteran's alleged in-service personal assault stressors. See 38 C.F.R. § 3.304(f)(5); see also Menegassi, 638 F.3d at 1382; see also Gallegos, 22 Vet. App. at 335; see also Patton, 12 Vet. App. at 280. The Board finds service connection for the Veteran's panic disorder with agoraphobia and PTSD is warranted. The record reveals that the Veteran had deterioration in his work performance and underwent a significant change in social behavior after the dates of the alleged personal assaults. A buddy statement from a fellow service member confirms the Veteran being threatened with a bayonet. The Veteran has since been diagnosed with PTSD and a panic disorder with agoraphobia, which have been associated with his in-service personal assaults. Finally, the Board holds the Veteran competently and credibly reported the asserted stressors and their occurrence during active military service. Therefore, as the preponderance of the evidence is in favor of the claim, service connection for panic disorder with agoraphobia and PTSD is granted. VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) ); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. ORDER Entitlement to service connection for panic disorder with agoraphobia and PTSD is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs