Citation Nr: 1334857 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-17 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on periods of active duty for training (ADT) and inactive duty for training (IADT) in the Army National Guard from January 1980 to January 1986. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified at a Board personal hearing in November 2012 in Roanoke, Virginia (Travel Board). The hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. An in-service stressor sufficient to cause PTSD is corroborated by evidence of record. 2. The Veteran has a current DSM-IV diagnosis of PTSD. 3. Currently diagnosed PTSD is related to a verified in-service stressor. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1131, 1154, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Veteran's diagnosed acquired psychiatric disorder of PTSD is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) and she has not been diagnosed with psychosis; therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran is 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, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). Where the presumption of soundness attaches (where a disorder was not "noted" at entrance into service), in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service, and there must also be clear and unmistakable evidence that the disorder was not aggravated by service. See 38 C.F.R. § 3.304(b). 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. VAOPGCPREC 3-2003. In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Id. If VA determines that a veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service." Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. The law provides that, if a PTSD claim is 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. Gallegos v. Peake, 22 Vet. App. 329 (2008). 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). Additionally, under 38 C.F.R. § 3.304(f), VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for interpretation. Bradford v. Nicholson, 20 Vet. App. 200 (2006). Most significantly, for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. Id; Patton v. West, 12 Vet. App. 272, 278 (1999). 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 that 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. 38 C.F.R. § 3.304(f)(3). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Service Connection Analysis for a Psychiatric Disorder The Veteran contends that she has PTSD due to military sexual trauma in service. The Veteran indentified one in-service stressor involving a sexual assault while serving on IADT. She testified during a November 2012 Board videoconference hearing that in July 1981, during two-week training in Camp Grayling, Michigan, she was offered a beer which she believed to be spiked with something, and alleges that a sexual assault occurred at that time. She reported that she woke up naked the next morning unable to remember anything, but that she sought medical attention two days later and was diagnosed with a venereal disease. The Veteran reported that she later sought a transfer from the unit and was subsequently transferred to a unit in Indianapolis, Indiana. She also reported developing alcoholism after this incident. The Board finds that the Veteran has claimed service connection for PTSD due to non-combat stressors; therefore, the claimed stressor must be corroborated by credible supporting evidence. See Moreau, 9 Vet. App. 389. After a review of all the evidence, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's claimed in-service stressor has been corroborated by service personnel records and other credible supporting evidence. National Guard Service treatment records are not available in this case. As such, the Board has a heightened duty to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. at 365 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board finds that the Veteran is competent to describe treatment in service for a diagnosis of venereal disease days after an alleged sexual assault, and the Board finds that the Veteran's testimony is credible. Service personnel records also tend to indirectly corroborate the claimed in-service rape. Personnel records show that the Veteran had asked if, after returning from IADT, she could apply to go to other schools and cross train in other fields. The Veteran was previously attached to a unit in Madison, Wisconsin. In November 1981, months after the reported incident, the Veteran had reenlisted in with the Indiana National Guard. Personnel records also indicate behavioral changes in service, and show that the Veteran has disciplinary action for several unexcused absences in 1982. She was evaluated as having unsatisfactory participation in 1983 and received an other than honorable discharge. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the claimed sexual assault in service has been corroborated by service personnel records and credible testimony as to treatment in service. The Veteran has a current DSM-IV diagnosis of PTSD, provided by a VA psychologist in March 2010, which was related, at least in part, to the verified incident of military sexual trauma. While the VA psychologist noted a history of childhood sexual trauma, a psychiatric disability was not diagnosed prior to service. Service treatment records are not available in this case, and there is no indication that a psychiatric disorder was diagnosed prior to service, or that one existed at service entrance. Accordingly, the Board finds the evidence is not clear and unmistakable that a psychiatric disorder preexisted in service; therefore, the presumption of soundness for at service entrance with respect to the Veteran's mental health attached and is not rebutted. See 38 U.S.C.A. § 1111. The Board will next determine if currently diagnosed PTSD was incurred in service. The Veteran was diagnosed with PTSD in March 2010. During the psychiatric evaluation, the Veteran identified a history of childhood sexual abuse, described an in-service military sexual assault, and also reported a post-service rape. The VA examiner stated that the Veteran had problems before joining the military, but opined that these were exacerbated by military sexual trauma. The Veteran reported during examination that she began having major performance problems after the incident in service, was transferred on three occasions, stopped showing up for monthly meetings, and got a general discharge. The Board finds that the Veteran's statements during the March 2010 VA examination are consistent with her hearing testimony. The reported performance problems noted to occur after the in-service sexual assault are corroborated by service personnel records. Moreover, the VA psychologist opined that, based on the Veteran's psychological presentation during examination, the stressors were valid. See Bradford, 20 Vet. App. at 200. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the reported in-service stressful event of military sexual trauma has been corroborated. The Board finds that the evidence is at least in equipoise on the question of whether currently diagnosed PTSD is related to military sexual trauma. The March 2010 VA psychologist opined that the Veteran had PTSD due to childhood abuse which was exacerbated by military sexual trauma and sexual harassment. In a later March 2010 referral request, the VA psychiatrist indicated that PTSD was clearly exacerbated by the Veteran's military sexual trauma. The Board finds that these opinions were based on an accurate factual basis, and relates PTSD, at least in part, to an in-service sexual assault. While a VA psychologist related PTSD to both childhood abuse and military sexual trauma, she did not differentiate between the causes of the diagnosed PTSD. See Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (stating that the Board is precluded from differentiating between the symptomatology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so). There is no other competent medical opinion of record against the claim that directly addresses the etiology of diagnosed PTSD. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for PTSD have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs