Citation Nr: 1328274 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-17 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) based on personal assault. REPRESENTATION Appellant represented by: African American PTSD Association WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from March 1959 to April 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, that denied the Veteran's claim of entitlement to service connection for PTSD. A hearing was held before the undersigned Acting Veterans Law Judge in April 2013. The appellate issue regarding service connection for PTSD is herein expanded to include any and all psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (noting that although the appellant's claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or the Secretary obtains in support of the claim). Evidence currently of record denotes the presence of separate conditions including depression. 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). FINDINGS OF FACT 1. The evidentiary record does not establish that the Veteran was engaged in combat with the enemy. 2. The Veteran has a current diagnosis of PTSD, which at least one medical provider has related to claimed in-service stressors CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was incurred in the Veteran's military service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In the current appeal, the Board has considered whether VA has fulfilled its notification and assistance requirements, found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board's fully favorable disposition of the matter on appeal, however, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. The Veteran is seeking service connection for an acquired psychiatric disorder to include PTSD. Specifically, he alleges he was personally assaulted twice in service which has caused his current diagnosis of PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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) (2012). To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012); see also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (DSM-IV). 38 C.F.R. § 3.304(f) (2012). The United States Court of Appeals for Veterans Claims (Court) has taken judicial notice of the mental health profession's adoption of the DSM-IV. Cohen, supra. According to the current criteria, a diagnosis of PTSD requires exposure to a traumatic event, or stressor. A stressor involves exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and the person's response involved intense fear, helplessness, or horror. The sufficiency of a stressor is a medical determination, and the occurrence of a claimed stressor is an adjudicatory determination. Id. Furthermore, the pertinent regulation provides that, if the evidence establishes that the Veteran engaged in combat with the enemy and that 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. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)(1) (2012). However, in order to grant service connection for PTSD to a non-combat Veteran, there must be credible evidence to support the Veteran's assertion that the stressful event occurred. A medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, supra, at 142; Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). The Board notes that, with regard to stressor verification, the VA regulation at 38 C.F.R. 3.304(f) was amended in 2010 to liberalize the requirement of verification or corroboration of a Veteran's claimed in-service stressor events in a PTSD claim. 38 C.F.R. § 3.304(f)(3) (2012), as added in 75 Fed. Reg. 39,843 -852 (July 13, 2010). However these revisions do not pertain to claims for PTSD that, as here, are predicated on personal (sexual) assault, combat, or prisoner of war (POW) experience since these type of claims already have their special provisions for establishing the occurrence of a stressor in these other type situations. The only notable change for claims predicated on sexual assault was the redesignation of this type of claim from subpart (f)(4) to (f)(5). Cases involving allegations of personal assault fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran complains. If a PTSD claim is based on an in-service personal assault, evidence from sources other than the Veteran's service records may corroborate his or her account of the stressor incident. Examples of such evidence include, but are not limited to the following: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians, 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 the following: 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); see Patton v. West, 12 Vet. App. 272 (1999) (holding that special VA Adjudication Procedure Manual evidentiary procedures apply in PTSD personal assault cases). 38 C.F.R. § 3.304(f)(5) further provides that VA may submit any such evidence as is described under that provision to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. In essence, unlike claims for PTSD that do not involve an assertion of personal or sexual assault, VA can take into account the opinion of a medical professional as to the likelihood that the stressor actually occurred, rather than just relying on such a professional to determine whether or not a stressor supports a diagnosis of PTSD. In this case, there is no evidence that the Veteran had combat service for the purposes of the controlling regulations. Moreover, his stressor does not even relate to combat; rather, he contends that his psychiatric problems stem from a sexual assault in service. Specifically, the Veteran contends he was sexually assaulted approximately a week after entry into service by his drill sergeant, and that he later was approached in bed by a fellow service member making advances towards him, with whom he got into an altercation. The Board has searched the Veteran's service treatment and service personnel records for the various types of evidence which may constitute evidence of a personal or sexual assault, such as evidence of behavioral changes, or treatment for physical conditions consistent with the claim. The Veteran's personnel records show that he was transferred one time, in November 1960, for unsatisfactory performance. From that transfer until separation, he received good and excellent ratings. The service treatment records are entirely negative for psychiatric complaints or symptomatology. These records do not show that the Veteran ever received psychiatric counseling during active duty. His separation examination report shows no psychiatric abnormality. However these records do confirm that, on entry in March 1959, he indicated that he had minor nervous episodes since childhood. There was no evidence of these episodes in service. As to post-service evidence, the Board has considered the findings from an April 2011 VA fee basis examination with a psychologist. The psychologist conducted a thorough examination of the Veteran, and took a detailed medical and psychiatric history, including the pre service murder/suicide of the Veteran's father and mother, which situation he reported walking into and discovering shortly after it occurred. He also noted the Veteran's report of an in service assault. After examining the Veteran, he was diagnosed with PTSD, as well as major depression and insomnia, and substance abuse. The examiner stated that the multiple Axis I diagnoses were related, and the secondary diagnosis does represent a progression of the primary diagnosis because depression and sleeping disorders are commonly seen with chronic PTSD. The examiner noted that, although the Veteran did not feel his PTSD was related to seeing the aftermath of his father and mother's murder/suicide, the examiner stated that it was unlikely that this event did not have an emotional impact on the Veteran, and is more likely than not the precursor to his PTSD. He reported that he thinks of suicide constantly due to his father killing his mother and then himself. The examiner was asked to provide an opinion as to whether it a personal assault occurred in service, and if so, is there a diagnosis of PTSD due to military sexual trauma. In regards to the Veteran's reports of sexual assault in service, and having a bunkmate make unwanted sexual advances to him, the physician noted that the only evidence for these incidents occurring was the Veteran's own reports. The Veteran also reported that his went in to the room right after his father shot his mother and then himself. The examiner indicated that it is more likely than not that the Veteran's PTSD started at that time. If the reported sexual assault occurred during service, it is as least as likely as not that the Veteran's PTSD was aggravated by those events. In support of this statement, the examiner cited a January 2008 letter from a private mental health therapist, also contained in the Veteran's claims file, who indicated that the Veteran's PTSD probably originated in childhood, and was aggravated by the reported sexual assault in service. The Board has reached several conclusions upon review of the April 2011 examination report. First, the Board is aware of the examiner's conclusion that the PTSD more likely than not originated as a consequence of the Veteran's childhood trauma. This opinion, however, does not clearly and unmistakably demonstrate that the disability preexisted service, per 38 U.S.C.A. § 1111. The Veteran, who was not noted to have a chronic psychiatric disability (as opposed to self-reported symptoms) at entry to service, is thus presumed to have been sound at the time of entry into service. Second, the Board finds no basis for considering the Veteran's statements as to personal assault in service to be less than credible. While there was no contemporaneous documentation of the claimed assault incidents, the rather graphic nature of the incidents, the actions of a superior (drill sergeant), and the timeframe in which these events allegedly occurred (between the Korea and Vietnam conflicts), suggest that it would be unreasonable to expect the Veteran to have shared his experiences at the time with in-service treatment providers, friends, or family. The Board would point out also that PTSD, by its very nature, is frequently a later-onset psychiatric disorder, and accordingly might well not have interfered with the Veteran's ability to function in active service, hence the unremarkable service record. Finally, and in light of the Board's acceptance of the Veteran's statements, the Board must consider the April 2011 VA examination report to be positive evidence in support of his claim, This report was based upon a thorough interview with, and examination of, the Veteran and is of high probative value. Notably, it is not contradicted by any other evidence of record. The Board must therefore reach the conclusion that the competent evidence of record supports a direct relationship between PTSD and service. Overall, the evidence supports the claim for service connection for a psychiatric disorder, to include PTSD. The appeal is thus granted in full. ORDER Service connection for an acquired psychiatric disorder, to include PTSD based on personal assault, is granted. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs