Citation Nr: 1328042	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  08-21 190	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for an eye disability.

3.  Entitlement to service connection for residuals of head trauma, to include headaches.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1972 to June 1973. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO), which denied the issues on appeal.

This case was previously brought before the Board in August 2011 at which time the claims were remanded to the Agency of Original Jurisdiction (AOJ) to further assist the Veteran with the development of his appeal.  The case is once again before the Board.

The Veteran was scheduled for a hearing before a Decision Review Officer (DRO) in April 2011, however the Veteran did not appear for this hearing.  As the Veteran has not offered a statement of good cause as to why he missed the hearing, the Board will proceed as if the hearing request had been withdrawn.  38 C.F.R. § 20.702(d) (2012).

The issues of entitlement to service connection for an eye disability and residuals of head trauma are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran's PTSD is related to service.


CONCLUSION OF LAW

PTSD was incurred in active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

Since the Board is granting entitlement to service connection for PTSD, the entire benefit sought on appeal has been granted.  Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38  C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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 in accordance with 38 C.F.R. § 4.125(a), i.e., a diagnosis which conforms to the criteria set forth in the Diagnostic and Statistical Manual of the American Psychiatric Association, 4th edition (DSM-IV); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred.  38 C.F.R. § 3.304(f). 

However, when a claimant seeks service connection for PTSD, 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. 38 C.F.R. 
§ 3.304(f)(5) . Stated alternatively, corroboration of the claimed sexual assault dated contemporaneously with the incident is not required to substantiate the incident. Instead, 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) . 

For personal assault PTSD claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. 38 C.F.R. § 3.304(f)(5). Under this regulation, VA may submit any evidence it receives to a mental health professional for an opinion as to whether a personal assault occurred. Stated otherwise, in a claim of service connection for a psychiatric disorder that is alleged to have been caused by a personal sexual assault, the absence of historical validation of the in-service incident is not necessarily fatal to the claim. Rather, a VA mental health care provider may express an opinion as to whether, given all evidence of record, the claimed in-service assault occurred.

The Veteran asserts that he has PTSD as a result of an in service assault by fellow service members.  For the reasons discussed below, the Board finds that service connection is warranted.

The Veteran has indicated that he reported the incident to his superior, but was told that "things just happen."  See February 2008 VA treatment record and October 2006 statement.  Following separation from service the Veteran has been treated at mental health group therapy at the VA Medical Center for his PTSD.  See e.g., May 2008 treatment record.  


At his December 2011 VA examination the Veteran reported being physically assaulted while at Fort Knox.  He was kicked in the side and struck in the face.  His current symptoms included nightmares, distressing recollections of the event, efforts to avoid thoughts, feelings or conversations associated with the trauma, difficulty concentrating, trouble falling or staying asleep, and irritability or outbursts of anger.  The examiner diagnosed the Veteran with PTSD which was related to his personal assault in service.

Although there is no objective evidence in the Veteran's service treatment records that he was assaulted, he is competent to report the attack.  The Veteran is also competent to report that he experiences nightmares and flashbacks of the event.  A VA psychologist has also related the event to the Veteran's current PTSD diagnosis in accord with 38 C.F.R. § 3.304(f)(5). 

The Board finds that, resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met.  As such, the Veteran's claim of entitlement to service connection is granted.  38 U.S.C.A. § 5107 (West 2002).


ORDER

Entitlement to service connection for PTSD is granted.


REMAND

There is evidence in the claims file that the Veteran applied for benefits from the Social Security Administration (SSA).  See e.g., May 2008 VA treatment record.  However, the VA has not obtained any records from the SSA.  On remand the RO should request any available SSA records.  See Murincsak v. Derwinski, 2 Vet.  App. 363, 370 (1992) (VA's duty to assist includes obtaining SSA decision and supporting medical records pertinent to VA claim); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA cannot ignore SSA determination of disability but must provide reasons or bases regarding such determination); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (indicating VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A, are those relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim).  

Accordingly, the case is REMANDED for the following action:

1.  Request from the SSA complete copies of any disability determination(s) it has made concerning the Veteran and copies of the medical records that served as the basis for any such decision(s).  If these records are not available, a negative reply is required.  

2.  After undertaking any additional development deemed necessary, readjudicate the remaining issues on appeal.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond.  The case must then be returned to the Board for further appellate review, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or 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).



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


Department of Veterans Affairs