Citation Nr: 1327359 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 08-32 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from July 1951 to December 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for depression. Jurisdiction over the Veteran's claims file remains with the RO in Montgomery, Alabama. The Board most recently remanded the claim in April 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran has been diagnosed as having PTSD due to in-service personal trauma. CONCLUSION OF LAW PTSD was incurred in or aggravated active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran contends that service connection is warranted for an acquired psychiatric disorder, to include PTSD. He relates that he was the subject of racial discrimination and harassment during service. He says the harassment and insults were personal in nature. He reports that his commanding officers used racially abusive language on a consistent basis, and that he was assigned difficult job assignments due to his race. More recently, when he was examined in June 2013, the Veteran described an incident where several African American service members were assigned to an Air Force test site that was located in a desert environment, and that he and other African American soldiers were singled-out for the duty due to the harsh desert conditions - high temperatures. The Veteran said that on one occasion he was given a security duty assignment that required him to be essentially alone in the desert for five days and nights with limited outside contact, which left scared and fearful of his life. He states that the harassment continued throughout the remainder of his service, and that he felt intimidated and fearful that he would be given another desert assignment. As noted in the Board's April 2013 remand, the Veteran has been diagnosed with acquired psychiatric disorders that include depression, and PTSD. Thus, although VA has previously framed the issue solely as one involving depression, the issue in this case has been framed broadly, and it has been recharacterized as "entitlement to service connection for an acquired psychiatric disorder, to include PTSD." See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); 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 law provides that '[i]f the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.' 38 C.F.R. § 3.304(f)(2). Where, however, VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is unrelated to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the reported stressor. Instead, the record must contain evidence that corroborates the veteran's testimony as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d),(f); West v. Brown, 7 Vet. App. 70, 76 (1994). As the evidence does not show, nor does the Veteran report, that he engaged in combat with the enemy, his statements and testimony concerning the reported stressors may not be accepted, standing alone, as sufficient proof of their occurrence. Independent evidence is necessary to corroborate his statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). There are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than the veteran's service records which may corroborate his or her 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. 38 C.F.R. § 3.304(f)(5). The M21-1MR also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1MR, Part IV, Subpart ii, 1.D.17.n. 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. 38 C.F.R. § 3.304(f)(5). 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. In addition, 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)(5). It is important to note that, for personal assault PTSD claims, an after-the-fact medical opinion can also serve as the credible supporting evidence of the reported stressor. Patton v. West, 12 Vet. App. 272, 280 (1999). VA has defined personal assault very broadly to include an event of human design that threatens or inflicts harm. Examples of personal assault include rape, physical assault, domestic battery, robbery, mugging, stalking, and harassment. [Emphasis added]. See VA Adjudication Procedure Manual M21-1MR, Part III, Subpart iv., Ch. 4, Section H, part 30(a) (Aug. 3, 2011). As the Veteran has claimed that he was the subject of verbal and physical harassment in service, as detailed above, the Board will consider the provisions of 38 C.F.R. § 3.304(f)(5), which provides that PTSD based on a personal assault in service permits evidence from sources other than a veteran's service records to corroborate his account of the stressor incident. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records (STRs) are not available and may have been destroyed in the 1973 fire at the NPRC. In this regard, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision...." when there are lost or missing STRs. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). But missing records concerning a Veteran's service, while indeed unfortunate, do not lower the threshold for an allowance of a claim. No presumption, either in favor of the claimant or against VA, arises in this circumstance when there are lost or missing service records. See Cromer, 19 Vet. App. 215 at 217-18 (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown.). The legal standard for proving the claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. As for the post-service/non-service medical evidence, it consists of VA reports, dated between 2006 and 2013, and a statement from a private health care provider. With regard to the medical evidence, VA progress notes, dated between 2006 and 2013, show that the Veteran was repeatedly noted to have negative screens for depression, and PTSD. See e.g., reports, dated in October 2006, October 2007, June 2009, and November 2011. He also repeatedly denied being the victim of a rape or assault. See e.g., reports, dated in February 2008, February 2010, and November 2012. Beginning in 2012, there are several notations of depression, and PTSD; no specific details of any claimed stressors were described. A June 2013 Disability Benefits Questionnaire contains a diagnosis of PTSD. No time frames or names have been provided for the claimed stressors. The Veteran has not asserted that any relevant reports were ever filed. It therefore appears that corroboration is not feasible, and that the claimed stressors cannot be documented. Therefore, referral to the U.S. Army and Joint Services Records Research Center (JSRRC) is not warranted. See M21-1MR, Part IV.ii.1.D.15.a. Nevertheless, based on her clinical interview of the Veteran, who she described as a credible historian, a review of the record, the chronology of the symptom onset, the consistency of his treatment, and her own training, the VA psychologist diagnosed the Veteran as having PTSD due to his military service - in-service harassment. 38 C.F.R. § 3.304(f)(5). There is no contrary opinion of record. Given the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran has PTSD that is related to his service. Under such circumstances, the benefit of the doubt is awarded to the Veteran. 38 U.S.C.A. § 5107(b). Service connection is therefore granted for PTSD. The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this case, as the Board has fully granted the Veteran's claim for service connection, the Board finds that a detailed discussion of the VCAA is unnecessary. Any potential failure of VA in fulfilling its duties to notify and assist the Veteran is essentially harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for PTSD is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs