Citation Nr: 1331064 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-06 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active service in the United States Navy from January 1975 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision of February 2007. In January 2011, the appellant appeared at a Board hearing held at the Oakland RO (i.e., Travel Board hearing). A transcript of that hearing was prepared and has been included in the claims folder for review. Following that hearing, the Board, in March 2011, reopened the previously denied claim of service connection for PTSD, and remanded the claim for further notification and development. It is noted that in Bryant v. Shinseki, 23 Vet. App. 488, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, in pre-hearing conference and during the hearing, the VLJ noted the basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. Additionally, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) (2013) or identified any prejudice in the conduct of the Board hearing. The record reflects that the Board has remanded this claim on two previous occasions. The Board remanded the case to the RO, via the Appeals Management Center (AMC), in March 2011 and again in April 2012 for further development. The case has been returned to the Board for further appellate review. Upon reviewing the development since April 2012, the Board finds there has been substantial compliance with its remand instructions. The Court has stated that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of the Board's most recent remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board will proceed to review and decide the claim with respect to the issue now on appeal based on the evidence that is of record. FINDINGS OF FACT 1. While on active duty in the US Navy, the appellant has credibly asserted, he was the subject of sexual and physical assaults. 2. The appellant has been diagnosed as suffering from PTSD. 3. A VA staff psychologist has concluded that the appellant's PTSD was aggravated by his military service. CONCLUSION OF LAW Resolving all reasonable doubt in the appellant's favor, PTSD was caused by stressors during the appellant's military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that while in the US Navy, two fellow sailors sexually assaulted him. He has stated that two sailors ordered him to take off his clothes and then anally penetrated him with their fingers. He further avers that because he was a physically smaller sailor, he was physically bullied and assaulted by other sailors. He reports that as a result of this incident, he gradually began drinking to excess and using illegal drugs. It was further suggested that this abuse led to questionable job performance until he was discharged from the service. He avers that this incident has produced nightmares and depression. In summary, the appellant, along with his representative, has claimed that this incident was an extremely stressful situation which, in turn, led to the development of PTSD, from which the appellant now suffers. A. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant proceeding with this issue given the favorable nature of the Board's decision with regard to the issue of service connection. B. Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131 (West 2002). For the showing of chronic disease (as defined under 38 C.F.R. § 3.309(a)) in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2013). In order to establish service connection for the claimed disorder, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2013); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was clearly and unmistakably not aggravated. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2013). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In addition to the criteria set forth above, service connection for PTSD generally requires (1) medical evidence diagnosing the condition in accordance with the 4th edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV)); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressors occurred. 38 C.F.R. § 3.304(f) (2011); Anglin v. West, 11 Vet. App. 361, 367 (1998). The evidence required to support the occurrence of an in-service stressor varies depending on whether a veteran was engaged in combat with the enemy. If the evidence establishes that a 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 such veteran's service, then his or her lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (2011); see also VA O.G.C. Prec. Op. No. 12-99, 65 Fed. Reg. 6,256 -58 (2000) (holding that the phrase "engaged in combat with the enemy" requires that a veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality). Where the record does not establish that the claimant engaged in combat with the enemy, his assertions of in-service stressors, standing alone, cannot as a matter of law provide evidence to establish an event claimed as a stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, the claimant must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 75 Fed. Reg. 39,843 -39,852 (effective July 13, 2010). Essentially, the amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the claimed in-service stressor is related to "fear of hostile military or terrorist activity." Specifically, the amended version of 38 C.F.R. § 3.304(f)(3) states, 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 a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and 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. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39,843-39,852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3) (2011). Where a PTSD claim is based on an in-service personal assault, evidence from sources other than the veteran's service records may corroborate the 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. 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)(3) ; see also Patton v. West, 12 Vet. App. 272 (1999). 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. 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)(3). C. Facts and Discussion The appellant had over two years of active service in the US Navy from 1975 to 1977. He had over one year and nine months of service aboard the USS Saginaw (LST1188). He did not serve in a hazardous duty area, nor was he fired upon by an enemy combatant. The appellant's military occupational specialty was that of an engineman. His DD Form 214 is negative for any valor awards and decorations or any indication of combat service. The appellant has stated that he was the subject of repeated assaults while in service. He also has admitted that he had not told anyone of the assault. The appellant has admitted that around the same time that this purported assault occurred, he began drinking and also started using all type of illegal drugs. He has also insinuated that his interest in serving in the US Navy diminished after this incident. The service personnel records show that the appellant became the subject of repeated nonjudicial punishments (NJPs) for various infractions. Nevertheless, a review of the available medical treatment records reveals that the appellant did not start to receive treatment until shortly prior to his submission of his claim for VA benefits. Yet, it is also noted that numerous VA health care providers have diagnosed the appellant as suffering from PTSD. Of particular interest is a VA doctor's opinion, dated December 2012, which states that stressful events that occurred while the appellant was on active duty aggravated a possibly pre-existing service psychiatric disorder. Also, it is indicated, after a review of the available service records, that the appellant's behavioral changes may have started around the time that the alleged sexual and physical assaults occurred. In determining whether evidence submitted by an appellant concerning a sexual assault is credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence. See also Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The appellant's statements during the course of this appeal have not been contradictory, and his reactions during his hearing when he recited his account of the sexual assault lent credibility to his allegations. The Board finds that the appellant's statements pertaining to the personal assaults and subsequent behavioral changes are credible, probative, and add weight to the overall claim. The appellant's statements are corroborated to some extent by the NJPs for various infractions during service. There is a current diagnosis of PTSD, which medical evidence links, at least in part, to the in-service stressor of a sexual and/or physical assault of the appellant by another service member. In determining whether service connection is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the evidence is against the claim, in which case service connection must be denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the absence of medical evidence contradicting the diagnosis of PTSD due to service, the evidence of record is at least in equipoise and service connection for PTSD is granted. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs