Citation Nr: 1332231 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 99-06 741A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a psychiatric disability other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1998 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for PTSD. A timely Notice of Disagreement was received from the Veteran later that month. After a Statement of the Case issued to the Veteran in March 1999 continued to deny the Veteran's claim, the Veteran perfected her appeal in April 1999 by filing a substantive appeal, via VA Form 9. In May 2011, the Certification of Appeal was included in the record. The Veteran testified before the undersigned at a travel Board hearing held at the RO in November 2011. A transcript of the hearing is included in the claims file, and has been reviewed. Based partly on the Veteran's testimony at the hearing, the Board, in March 2012, remanded this matter for additional development. Based on that development, the Board rendered a decision in April 2013 denying service connection for PTSD and remanding the claim of service connection for a psychiatric disorder other than PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (where a veteran has filed a claim for service connection for PTSD, VA must also consider other psychiatric diagnoses that are evident in the record). The claim has been returned to the Board for appellate review. This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's current psychiatric disability other than PTSD is etiologically related to service. CONCLUSION OF LAW The current psychiatric disability other than PTSD was incurred during the Veteran's period of active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of her claim. In addition, the evidence currently of record is sufficient to substantiate her claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2013). Legal Criteria Service connection may be granted for a 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. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, including psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In terms of her present disability, the medical evidence reflects multiple psychiatric diagnoses rendered during the course of the Veteran's claim. Post-service VA and private medical records show that she has been diagnosed with alcohol addiction, reactive depression, dysthymic disorder, bipolar affective disorder, schizophrenia, schizoaffective type, PTSD, including delayed type. Most recently, she was diagnosed with PTSD during a June 2013 VA mental disorders examination. During that VA psychiatric examination, the psychologist stated it was not possible to differentiate what symptoms are attributable to each psychiatric diagnosis. The Veteran attributes her current psychiatric disability to an incident that reportedly occurred during her active duty service in 1971. She alleges that she developed mental illness following repeated on the job sexual harassment and ultimately an attempted rape by a major, her superior officer, while she was on active duty. The record reflects that she initially reported this assault in a 1998 VA psychiatric examination report. As reflected in her hearing testimony and multiple written statements, she claims that her psychiatric disorders are due to her traumatic experience. STRs show a notation of acute anxiety reaction due to pregnancy in August 1972. Her January 1974 separation examination reflects no psychiatric abnormality. A May 2008 memo reflects that the RO attempted to verify the Veteran's report of alleged sexual assault, but the Veteran failed to complete a PTSD questionnaire. In a Statement in Support of Claim received in March 2011, the Veteran reported that while stationed at William Beaumont Medical Center assigned to the Dental Clinic she worked with Major C. M. who made sexual advances daily and eventually came to her apartment. She managed to fight him off and hide in a closet until he left. She reportedly reported the incident to JAG the next day. Following the incident she reported that she was transferred to Biggs Dental Clinic and then to Fort Bliss Texas. The RO attempted to obtain a report of this incident with the US Army Crime Records Center in Fort Belvoir Virginia. They responded on March 15 2011 stating there is no record of the incident. Service personnel records do not verify any of these incidents but rather show she married on March 3 1973, reported she was pregnant in September 1973 and was charged with an Article 15 in October 1973 due to being absent without leave. She claimed she was pregnant and at that same time had morning sickness and abdominal discomfort and could not fit into the military uniform. The Veteran's testimony as to the incident was consistent with the March 2011 statement. Essentially, she reported that the major was the dentist and she was his assistant. His daily harassment under the close quarters of a dental office, and ultimately his forcing his way into her house, was traumatizing. The Veteran underwent a VA psychiatric examination in August 2012. The examiner made the diagnosis of PTSD and noted that the Veteran did not currently meet the criteria for diagnosis of schizophrenia or bipolar disorder. The examiner stated that it would require the evaluator to resort to speculation to determine whether the Veteran's symptoms were due to military service due to the length of time elapsed between leaving the military and the beginning of mental health treatment in 1981. Thus, the examiner found it less likely than not that the Veteran's current PTSD was due to the anxiety reaction in service. In April 2013, the Board issued a decision denying service connection for PTSD and remanding the matter as to whether any current psychiatric disability other than PTSD is due to service. The appellant did not appeal this decision. VA treatment records are replete with reference to the Veteran undergoing inpatient and domiciliary treatment through VA. She was recently in a VA facility but had been in jail as well for stabbing another woman. The Veteran underwent another VA psychiatric examination in June 2013, to determine whether any current psychiatric disability other than PTSD is due to service. The report reflects that the examiner reviewed the claims folder and noted as follows: Does the veteran as likely as not (at least 50/50 probability) suffer from a psychiatric disorder that is etiologically related to (caused by or a result of) an acute anxiety reaction she suffered during August, 1972? The veteran attributed her anxiety reaction during service to chronic sexual harassment by a Major for whom she worked at that time. She noted the man's advances became increasing aggressive until he eventually arrived at her home and attempted to force himself into her dwelling. The veteran indicated she reported the episode to JAG, but the investigation resulted only in her transfer to another base. She reported she struggled with near-daily intrusive thoughts in this regard during the years since. In light of this information, the present examiner agrees with conclusions of the last psychological evaluation conducted in August, 2012. As such, the present examiner believes the veteran's current psychiatric disorder / diagnosis (PTSD in this examiner's opinion) is most likely (more than 50/50 probability) etiologically related (a progression of) an acute anxiety reaction the veteran experienced during service; (2) Are other psychiatric diagnoses offered since the veteran left service as likely as not (at least 50/50 probability) etiologically related (caused by or a result of) an acute anxiety reaction the veteran experienced during service? The examiner believes the veteran's past diagnoses (e.g., Schizophrenia, Bipolar Disorder, depression) arose from various clinical interpretations of PTSD symptoms complicated by substance abuse. While substance abuse in this case is not considered to be service-connected by the present examiner, he is nonetheless left to conclude the above-noted past diagnoses (Bipolar Disorder, Schizophrenia, depression) were most likely (more than 50/50 probability) etiologically related (caused by or a result of) an acute anxiety reaction the veteran suffered during service. Here, the Board acknowledges that the Veteran claims that she has psychiatric disability as a result of these just described in-service events. The most persuasive medical evidence, the report of the June 2013 VA examination performed in response to her claim, shows that her current psychiatric disorders are due to the incident in service. The examiner has provided sound rationale for his conclusions. Nonetheless, the Board points out that as she has not been shown to have schizophrenia within a year of service, service connection for that psychoses on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 is not warranted. Regardless, the Board notes that the medical opinions of record, and the competent and credible lay statements have placed the evidence in a state of equipoise regarding whether the Veteran's current psychiatric disorder other than PTSD is etiologically related to her military service. The medical evidence includes the most recent psychiatric diagnoses, along with the Veteran's statements and testimony regarding the in-service onset of her psychiatric condition. Indeed, the Veteran has consistently stated since she filed her claim that her current psychiatric disorder began following the reported trauma on active duty service and that she experienced psychiatric symptoms since that time. Although her reports are not documented in the available service treatment records, the Veteran is capable of reporting psychiatric symptoms and military experiences. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board ultimately finds the Veteran's statements in this regard to be competent and credible evidence. The Board recognizes that the claims file also includes the 2012 VA opinion essentially that the Veteran's current psychiatric disorder is not related to her military service. The Board does not find the 2012 VA opinion to be more probative as compared to the other evidence of record including the June 2013 VA medical opinion. Given this, the Board finds that the medical and lay evidence of record has placed the record in equipoise as to whether the Veteran's psychiatric disability is related to her military service, and accordingly, the Board must resolve this issue in favor of the Veteran. The Board also recognizes that it denied service connection for PTSD in an earlier decision. However, noting the examiner's opinion in June 2013 that it is unclear from the record which symptoms are attributable to which psychiatric disability, the Board will consider all of the symptomatology contained in the evidence. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the Veteran's favor and the symptoms in question attributed to the service-connected disability). Further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-07 (1994). As a point of equipoise has been reached in the matter, the Board resolves all doubt in the Veteran's favor and finds that service connection for his currently present acquired psychiatric disorder other than PTSD is warranted. ORDER Service connection for a psychiatric disability other than posttraumatic stress disorder (PTSD) is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs