Citation Nr: 1330960	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  10-34 193	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel



INTRODUCTION

The Veteran served on active duty from April 1958 to July 1959.

She appealed to the Board of Veterans' Appeals (Board/BVA) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In September 2013 the Board granted her motion to advance her appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2013).


FINDING OF FACT

There is competent and credible evidence indicating the Veteran has PTSD that, as likely as not, is the result or consequence of sexual harassment during her military service.


CONCLUSION OF LAW

Resolving reasonable doubt in her favor, she has PTSD because of injury during her service.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126, prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  Implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326.
The Board is granting this claim of entitlement to service connection for PTSD.  Hence, even assuming for the sake of argument that any error was committed as concerning the VCAA's duty-to-notify-and-assist obligations, the error would be inconsequential and therefore ultimately harmless.  38 C.F.R. § 20.1102.

Under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

The elements of a valid claim for direct service connection are:  (1) competent and credible evidence of a current disability; (2) competent and credible evidence of 
in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the current disability - which is the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Establishing entitlement to service connection for PTSD, specifically, requires:  (1) medical evidence showing a diagnosis of the condition; (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.  A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV).  38 C.F.R. § 3.304(f).


The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the Veteran engaged in "combat with the enemy," as established by recognized military combat citations or other official records.  See, e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Cohen v. Brown, 10 Vet. App. 128 (1997).  If VA determines the Veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required - provided the testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service."  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) and (f)(2).  See also Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).

Under the former version of applicable law, if the Veteran's stressor was unrelated to participation in combat, then his or her lay testimony, in and of itself, was categorically insufficient to establish the occurrence of the alleged stressor.  Instead, the record must have contained credible supporting information from an independent source that corroborated his testimony or statements, such as service records, or even competent lay testimony from a third-party.  See Cohen, 10 Vet. App. at 146-47.  See also Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996). 

But there was a regulatory change to the pertinent criteria for service connection for PTSD, effective July 13, 2010.  See 75 Fed. Reg. 39,843 (later codified at 38 C.F.R. § 3.304(f)(3)).  The revised regulation essentially removes the requirement that there be objective corroboration of a claimed in-service stressor under certain circumstances.  Under this standard, if a stressor claimed by a Veteran is related to the Veteran's "fear of hostile military or terrorist activity" and a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  

There are other exceptions to the pleading and proof requirements, as well, such as when there is a diagnosis of PTSD in service (38 C.F.R. § 3.304(f)(1)), the Veteran is a former prisoner of war (POW) (subpart (f)(4)) or, as is being specifically alleged here, there was personal or sexual assault, i.e., military sexual trauma (MST), which instead falls under the purview of subpart (f)(5).

When, as here, a claim of entitlement to service connection for PTSD is predicated on MST, the general rule discussed in Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996), that after-the-fact medical nexus evidence cannot establish the occurrence of the claimed event in service, does not apply.  See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011); Patton v. West, 12 Vet. App. 272, 279-280 (1999).  See also YR v. West, 11 Vet. App. 393, 399 (1998).  As such, 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 behavioral 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.  See, e.g., Bradford v. Nicholson, 20 Vet. App. 200 (2006).  Because sexual assault is an extremely personal and sensitive issue, many incidents are not officially reported, which creates a proof problem with respect to the occurrence of the claimed stressor.  In such situations it is not unusual for there to be an absence of service records documenting the events the Veteran has alleged; therefore, evidence from sources other than the Veteran's records may corroborate an account of a stressor incident.  Patton, 12 Vet. App. at 277; YR, 11 Vet. App. at 398-99.

The Veteran in this case alleges a pattern of sexual harassment that eventually over time led to the onset of PTSD.  She alleges that, during her basic training, following which she took on an occupational assignment as a dental assistant, she was told that female recruits did not ever "make waves", which in her mind meant that incidents of sexual harassment or other misconduct were not to be reported, instead simply tolerated.

Her service treatment records (STRs) do not indicate pertinent findings or treatment for any mental health related symptoms or issues.  This is to be expected, however, since even VA did not first adopt the PTSD nomenclature until 1980 or thereabouts, so not until long after her service had ended.  Also consider that her military personnel file is unavailable.

Records of VA outpatient treatment reflect in the mid-2000s the commencement of a period of mental health counseling related to incidents during her military service.

In furtherance of the claim are several letters from a VA licensed clinical social worker (LICSW) and mental health counselor, each essentially stating that the incidents of sexual harassment during service had caused or contributed to the subsequent onset of PTSD.  In February 2008 correspondence, in particular, the VA treatment provider indicated that "[t]hrough the years [the Veteran] has struggled to cope with depression from abusive situations she experienced in the service, that were triggered from time to time but did not start to get processed until she entered therapy."  The VA counselor described one incident in which the Veteran was a dental assistant and the dentist would sexually humiliate her by using a syringe with water and shooting it at her wetting her clothing, over a period of three months.  A second traumatic incident had occurred when another serviceman with whom she had been in a study group while on a long bus ride proceeded to grope her.  The VA counselor further stated that "I am of the professional opinion that the problems and symptoms of depression and posttraumatic stress syndrome (chronic) that [the Veteran] has now and has had through the years is a direct result of what she experienced in the service with the abuse she experienced and other incidents that I have not described in this letter that she also experienced."


With the benefit of this supporting opinion, the criteria are met for service connection for PTSD.  In this letter and other correspondence, the VA counselor has provided independent verification of the Veteran's claimed stressor, by post-hoc clinical opinion, as is permitted in cases involving any form of personal assault.  See 38 C.F.R. § 3.304(f)(5) (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).  The VA counselor has likewise set forth a clinical diagnosis of PTSD and determined it is etiologically linked to the Veteran's sexual harassment stressor in service.  Whereas the opining VA counselor does not have a strictly medical background, the counselor is nonetheless a qualified mental health care practitioner who has also treated the Veteran over an extended period of time and, therefore, is deemed competent to provide an opinion.  See, e.g., Williams v. Brown, 4 Vet. App. 270, 273 (1993) (nurse's statement may constitute competent evidence where the nurse has specialized knowledge as to the area of medicine or participated in treatment).  See too, Goss v. Brown, 9 Vet. App. 109, 113 (1996).

Accordingly, the criteria for service connection for PTSD are met.


ORDER

Service connection for PTSD is granted.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs