Citation Nr: 1326254 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-20 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) based on military sexual assault. 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1979 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision from the Department of veterans Affairs (VA) Regional Office (RO) in New York, New York. In his substantive appeal, the Veteran requested a Board hearing in Washington, DC. The Veteran then submitted a letter from his doctor one month prior to his November 2012 hearing in order to request that his scheduled hearing be postponed. The Board notified the Veteran that his hearing had been re-scheduled for June 2013 in a February 2013 letter addressed to the Veteran's last known address. The letter was returned as undeliverable and the Veteran failed to appear for the hearing. The Board notes that it is the Veteran's responsibility to keep VA informed regarding his current address. Further, in light of the determination below, the Board finds any such error in notifying the Veteran is harmless. The Board notes that the Veteran was initially represented by the American Legion, but he changed representation to the Disabled American Veterans in 2010. The appropriate VA forms are associated with the claims file and the Board acknowledges this change. Review of the claims file shows that the Veteran has been diagnosed with other current psychiatric disorders, including mood disorder and depressive disorder. The Board has recharacterized the issue of entitlement to service connection for PTSD to include entitlement of service connection for an acquired psychiatric disorder other than PTSD, as is reflected on the cover page. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (noting that a claim for a mental health disability 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 Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that there are VA medical records from March 2010 to May 2012. These records were considered in the May 2012 supplemental statement of the case (SSOC). The remaining documents are either duplicative or irrelevant to the issue on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. The weight of the evidence demonstrates that the Veteran was sexually assaulted during his military service and that his PTSD is attributable to that sexual trauma. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the sexual assault claimed by the Veteran has incurred in service and the criteria for a grant of service connection for PTSD due to military sexual trauma have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Law and Regulations Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a). Where the Veteran's claimed stressor (the event which caused his PTSD) is not related to combat with the enemy, the Veteran's lay testimony alone is generally insufficient to establish the occurrence of said stressor. 38 C.F.R. § 3.304(f). However, in Patton v. West, 12 Vet. App. 272 (1999), the court held that special consideration must be given to claims for service connection for PTSD based on personal assault as a result of the sensitivity and difficulty in establishing proof of the assault in such claims. Patton also held that medical evidence could be used to corroborate the Veteran's claimed stressor in personal assault PTSD claims. Further, 38 C.F.R. § 3.304(f)(5) also allows the Veteran to use evidence other than the service treatment records (STRs) to corroborate his account of the stressor incident. This evidence includes, but is not limited to: medical records, police records, statements from the Veteran's family and friends, and changes in behavior, to include, substance abuse, a request for a transfer to another military duty assignment, and unexplained changes in social behavior. This evidence is still subject to a credibility analysis. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). II. Analysis As the Board's decision to grant service connection for PTSD for military sexual trauma herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. The Veteran has been diagnosed with PTSD by a VA psychologist as well as a licensed clinical social worker. Both healthcare providers have treated his PTSD over the years and both have attributed his PTSD to a work injury which occurred in approximately 2006 during which he was covered with three tons of ash (work accident) and an alleged October 1979 military sexual trauma. The Veteran has claimed that while he was hospitalized for acute respiratory disease in October 1979, he was sexually assaulted and threatened by a higher ranking individual employed at the hospital. The Veteran has submitted the following testimony/evidence regarding corroboration of his claim: his STRs, PTSD treatment records, a statement from his licensed clinical social worker (C.V.P., LCSW), two letters from his mother, and his own statements: that he told his father about the assault at the time; that his father wrote a letter to their congressman; and that his father obtained his diploma showing a course in food service so that he could leave the site of the assault as soon as possible. The Veteran's STRs show that the Veteran was hospitalized for acute respiratory disease in October 1979, as the Veteran has claimed. The Veteran's medical records show that he is receiving treatment for PTSD and document the discussions he has with his healthcare providers regarding the October 1979 assault. The Board notes that the Veteran's statements regarding the assault have been consistent over his years of treatment. While the Veteran appears to have been diagnosed with PTSD following his work accident in approximately 2006, the Veteran's medical records consistently cite both the work accident and the military sexual trauma as the cause of his PTSD. In June 2010 C.V.P. submitted a statement on behalf of the Veteran. She stated that the Veteran's work accident appeared to trigger symptoms related to his October 1979 assault. She noted that the Veteran had told her that he had abused alcohol and had difficulty coping with thoughts of the incident after the assault. She noted that it was most likely that the Veteran abused alcohol from the time of the assault as a means of managing stress and as a coping mechanism. She stated that after his work accident, the Veteran was no longer able to work or maintain regular physical activity, both of which generally help people with PTSD divert their focus away from the trauma. She noted that his PTSD and the ways in which he coped with the trauma interfered with his relationships, as evidenced by two failed marriages. She then recommended granting the Veteran's claim for service connection for PTSD for military sexual trauma. The Board finds the statement submitted by C.V.P., LCSW to be credible. Her statements are supported by the Veteran's medical records and her observations and interviews with the Veteran over the course of his treatment for PTSD. As a LCSW, she is also competent to diagnose the Veteran with PTSD and opine on the likely etiology of his disorder. Because C.V.P. has offered competent and credible evidence regarding the Veteran's PTSD and its etiology, the Board finds her opinions to be probative in corroborating the Veteran's claim of sexual assault while in service. The Veteran has also submitted two letters from his mother offering support for his claim. In December 2009 she submitted a letter stating that she recalled that her late husband had sent a letter to a United States Congressman. At that time her husband told her the reason for the letter was that the Veteran wanted to leave service. She also stated that around that time the Veteran called her to tell her not to come to his graduation. She stated that she knew that he was very upset; more upset than just feeling ill from the flu, but that the Veteran and his father would not tell her what was wrong. In April 2010 she submitted a second letter stating that the Veteran's father had contacted the Veteran's high school in 1979 in order to obtain a copy of his diploma. She stated that the Veteran used the diploma to verify his completion of a food services course in order to leave his basic training site as soon as possible. She also noted that she had observed that the Veteran had begun drinking before leaving for his assignment following basic training (approximately November or December of 1979) and that it subsequently escalated and became "out of control" until around 2007. The Veteran has claimed that he told his father about the assault after it occurred in 1979 and that his father wrote a letter to a United States Congressman requesting an inquiry into the incident. His father is now deceased and his mother was not aware of the assault at that time. The Veteran claims that when a supervising officer found out about the letter to the Congressman, he told the Veteran that it would be best for his career if he dropped the issue and moved on. There is nothing in the Veteran's military records that document any such meeting or letter. The Veteran's mother has provided a statement which corroborates the Veteran's claim that his late father wrote a letter, but his mother had no firsthand knowledge of the subject matter of the letter or the outcome. While the Board does not dispute the Veteran's credibility with regard to the existence of such a letter, there is insufficient evidence to either confirm or deny that the Veteran's father wrote a letter to a Congressman regarding the sexual assault. Next, the Veteran has claimed that his late father obtained his high school diploma so that the Veteran could receive his orders and leave basic training, where the assault occurred, as soon as possible. The Veteran's mother submitted a statement in support of this claim. This was an event she had witnessed and had knowledge of. The Veteran's VA DD-214 Form shows that the Veteran did work in food service during his time in service. The Veteran's file does not contain evidence showing that the Veteran was able to leave basic training early as a result of his course in food services. However, the Board finds a balance of positive and negative factors with regard to this claim and therefore, gives the Veteran the benefit of the doubt that he was working with this family to leave the location of the sexual assault as soon as possible. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Similarly, the Board notes that the Veteran's claims of alcohol abuse following the assault are corroborated by his mother and C.V.P. The Board finds this evidence credible, although there is no mention of alcohol abuse in his STRs or other military records. VA medical records from 2010 and 2012 mention the Veteran's use of drugs in 1979/1970s. It is unclear whether the drug use was before or after the assault, however, the Board notes that this fact does not address alcohol abuse. The Board has determined that the Veteran has presented more positive factors with regard to this change in behavior following the claimed assault and accepts the Veteran's testimony that the Veteran struggled with alcohol abuse after October 1979. After careful review, the Board finds that the Veteran has submitted credible evidence that he experienced changes in behavior to include alcohol abuse and an attempt to leave basic training earlier than scheduled following October 1979. This evidences tends to corroborate the Veteran's claim of an in service sexual assault. The Board also finds C.V.P., LCSW's opinion to be credible and probative. As such, this statement offers evidence of a PTSD diagnosis, corroboration that a sexual assault occurred while in service and a nexus between the current PTSD and the in service sexual assault. The Board will resolve all doubt in favor of the Veteran and as such, finds that service connection for his PTSD due to military sexual trauma is warranted. ORDER Service connection for PTSD for military sexual trauma is granted. REMAND The evidence of record shows that the Veteran has been diagnosed with additional psychiatric disorders, to include mood disorder and depressive disorder. Although service connection has been granted for PTSD, the other diagnosed disorders have not been addressed. If the Veteran is satisfied with the above grant of service connection for PTSD and does not wish to pursue a claim for service connection for psychiatric disorders other than PTSD, he may elect to withdraw his appeal. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of all medical care providers who have treated him for his psychiatric disorders, to include mood disorder and depressive disorder, including any private providers. After obtaining any necessary authorization from the Veteran, request all identified records. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the above development has been completed and all outstanding treatment records and other documents have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and etiology of his psychiatric disorders other than PTSD. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and etiology of all current acquired, non-PTSD psychiatric disorders experienced by the Veteran. All opinions expressed should be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be adjudicated based on the entirety of the evidence. If the claims are denied, the Veteran and his representative should be issued a statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs