Citation Nr: 1335123 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-27 904A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran honorably served on active duty from April 1981 to April 1985; her additional service from July 1995 to May 1998, including 5 months 12 days of active duty, was under other than honorable conditions. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision that, in pertinent part, denied service connection for PTSD. The Veteran timely appealed. This is the only issue that has been perfected on appeal. In June 2010, the Veteran testified during a video conference hearing before the undersigned. In September 2010, the Board remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. FINDING OF FACT There is clear and unmistakable evidence that the Veteran's psychiatric disability pre-existed active service; and it is not shown by clear and unmistakable evidence that the pre-existing disorder was not aggravated during service or that any increase was due to the natural progression. CONCLUSION OF LAW A psychiatric disability, to include PTSD and depression, was aggravated in service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a 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) (2012). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through a September 2010 letter, VA's Appeals Management Center (AMC) notified the Veteran of elements of service connection and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claim. VA's letter notified the Veteran of what evidence she was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed her that it would make reasonable efforts to help her get evidence necessary to support her claim, particularly, medical records, if she gave VA enough information about such records so that VA could request them from the person or agency that had them. In the September 2010 letter, the AMC specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned Veterans Law Judge 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. The case was thereafter remanded for additional development, including an examination. Neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2); and no prejudice has been identified in the conduct of the Board hearing. There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records, and has arranged for a VA examination in connection with the claim on appeal, a report of which is of record. The opinion expressed therein is predicated on a review of the history and consideration of the Veteran's complaints and symptoms. II. Analysis The Veteran contends that her current psychiatric disability, to include PTSD and depression had its onset in active service, or is the result of aggravation of a preexisting disease or disability in active service. She stated that, after joining active service, the stressors started happening; and she applied for conscientious objector status, and was reassigned to a dental clinic. Her symptoms included back flashes and nightmares, and depression. She was later diagnosed with PTSD and depression. The Veteran is competent to testify on factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303 (2012). Service connection or aggravation may also be presumed, for certain chronic diseases, such as a psychosis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, and disorders noted at the time of examination, acceptance, and enrollment; or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). Here, the Veteran's enlistment examination for her period of honorable active service beginning in April 1981 is not of record. Thus, the presumption of soundness attaches. In order to rebut the presumption of soundness at service entry, there must be (1) clear and unmistakable evidence showing that the disorder pre-existed service and (2) clear and unmistakable evidence that the disorder was not aggravated by service or clear and unmistakable evidence that any increase was due to the natural progress. See Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). The Veteran 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. VAOPGPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Jordan v. Principi, 17 Vet. App. 261 (2003). In this case, service treatment records do not reflect any findings or complaints of depression or anxiety. On a "Report of Medical History" completed by the Veteran in May 1995, she checked "no" in response to whether she ever had or had now nervous trouble of any sort; depression or excessive worry; frequent trouble sleeping; or loss of memory or amnesia. Neurologic and psychiatric systems were considered normal on clinical evaluation in May 1995. There is no competent evidence of a psychosis in service or within the first post-service year. The post-service records show that the Veteran was treated for substance abuse in 1994 and in 2000, and that there was no prior history of psychiatric hospitalization at the time. VA records show assessments of depression and auditory hallucinations in March 2002. At that time the Veteran complained of nightmares related to sexual abuse when she was 8 years old, which she never disclosed before. In April 2002, the Veteran was hospitalized for detoxification and rehabilitation following suicidal ideations. At that time she reported feeling depressed, hopeless, and worthless; and feeling this way for a couple of years. The Veteran again was treated for substance abuse in December 2003, and then began participating in group therapy sessions. During a VA psychological assessment in January 2004, the Veteran gave a childhood history of feeling unsafe inside the home; and that she witnessed violent acts of her stepfather physically abusing her mother. The Veteran, reportedly, at age 13, stabbed her stepfather and he almost died, when she attempted to protect her mother from harm. The Veteran also reported childhood sexual abuse at age 7 by a 14-year-old cousin, and at age 10 by her stepfather. With regard to her military history, the Veteran denied involvement in combat duty in active service; but did report seeing a "few guys killed" on the military base. She reported that one man jumped off a building in Germany. The Veteran reportedly had nightmares about the incident, and woke up crying. Her Form DD 214 shows 1 year, 11 months, and 14 days of foreign service during honorable active service; and that the Veteran's primary specialty during that time was as a combat signaler. VA records show that a PTSD screen was negative in August 2005. In February 2006, the Veteran was treated for depression; and reported that she last used alcohol and drugs over one year ago. She continued to have auditory hallucinations. The Veteran also reported sexual abuse as a child, and having witnessed serious accidents in active service; and that these continued to bother her. The Veteran thought she had PTSD problems, which the VA physician at the time noted as "feasible." Records show that the Veteran was hospitalized in April 2007 and in July 2007 with suicidal ideation. In August 2007, the RO determined that the claimed stressors reported by the Veteran were too vague, and lacked names and dates to request a search of unit records for verification. VA records show an assessment of chronic PTSD in October 2007; and that the Veteran began group therapy sessions in December 2007, and individual sessions in December 2008. Records show that she participated in a women's trauma recovery group in April 2009. In June 2010, the Veteran testified that she did not have any problems with mental disorders prior to her active service. She also testified that her experiences in active service caused her to have PTSD. Specifically, the Veteran testified that there were accidents where a guy in her unit jumped off the building, and smashed his head to the ground; and where somebody was run over by a tractor that was backing up. She saw this second incident while working at the dental clinic. The Veteran also testified that she had been harassed by a sergeant "Whittaker" in her unit, so she put in for "conscientious objector" and was transferred to a dental clinic in Heilbronn, Germany. Specifically, the Veteran testified that there were only five women in the unit and about 300 men, and that they were all hunkered down at a missile site. She testified that Sergeant Whittaker told her that he was "gonna make it hard" for her; and that he later told her he was "gonna kill [her]," and that she had so many days to live. She testified that every day he would come to her and threaten her, and tell her how many days she had left. The Veteran testified that she became scared, and was scared to move around; and that she applied for conscientious objector because she wanted to "get out." Her service personnel records show that the Veteran was in Germany from July 1981 to September 1983; and that she had been assigned as a radio telephone operator in October 1981, and later was assigned as a dental assistant in January 1982. The Veteran is competent to report what occurred in service because her statements regard her first-hand knowledge of a factual matter. In July 2010, VA amended its adjudication regulations regarding claims for service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor. The amendment eliminates the requirement of evidence corroborating the occurrence of claimed in-service stressors related to the Veteran's fear of hostile military or terrorist activity, and provides that the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 75 Fed. Reg. 39,843 (July 13, 2010). The amendment is not applicable to claims for service connection for PTSD based on personal assault. Regarding claims based on personal assault in service, VA regulations state, in pertinent part, as follows: 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. 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. 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). Records show that, in October 2010, the Veteran began attending a PTSD group. Following the Board's September 2010 remand, the Veteran underwent a VA examination in January 2011 for purposes of determining the nature and etiology of her psychiatric disability. The examiner reviewed the claims file and noted in detail the Veteran's medical history. The examiner noted the dates of the Veteran's hospitalizations, and indicated that the hospitalizations occurred primarily as a result of increased cocaine use, coupled with some type of suicidal gesture or plan. During the January 2011 VA examination, the Veteran reported her childhood trauma, including the stabbing of her stepfather; and reported her medical history, and current social functioning. The Veteran described her PTSD stressors, including two events that occurred prior to active service and two events that occurred during her honorable active service; and reported her current symptoms. The examiner found that the (DSM-IV) stressor criteria related to PTSD were met: (1) recurrent childhood sexual abuse, perpetrated by the Veteran's stepfather and older male cousin; and (2) stabbing and killing of her stepfather at age 12. Axis I diagnoses included PTSD; depressive disorder, not otherwise specified; and cocaine dependence in early partial remission. Following mental status examination, the examiner opined that, although it is at least as likely as not that the Veteran's claimed in-service stressors of sexual harassment and witnessing at least one death would be adequate to support a diagnosis of PTSD, here the Veteran clearly entered honorable active service with a pre-existing mental health condition. Hence, the examiner opined that it is at least as likely as not that the Veteran's current symptom presentation (PTSD; depressive disorder, not otherwise specified) was aggravated by, but not caused by, the claimed stressors. In a February 2012 addendum, the January 2011 examiner explained that the Veteran had been experiencing substantial psychiatric symptoms prior to her honorable active service, including constant nervousness; intrusive memories; avoidance of said memories; emotional detachment; hypervigilance; anger; sleep disturbance; and exaggerated startle. The January 2011 examiner also estimated that upwards of 80 percent of the Veteran's functional impairment was best accounted for by her personality disorder and substance abuse issues, and that the remaining 20 percent of her functional impairment was attributed to PTSD; and that less than 1 percent was related to her diagnosed depressive disorder. Here, the competent evidence of record clearly and unmistakably demonstrates that the Veteran's psychiatric disability existed prior to active service. There is also evidence of two claimed in-service stressors that the January 2011 VA examiner found adequate to support a diagnosis of PTSD; and a VA examiner's opinion and addendum that support a finding of aggravation. The Board finds that this evidence satisfies the requirements that there be a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125, and of competent medical evidence linking the diagnosis to an in-service stressor. Moreover, the Veteran had described behavior changes following the in-service harassment, including fear; and the January 2011 VA examiner rendered a diagnosis of PTSD related to the claimed stressor. In this case, her service personnel records document a transfer to another duty assignment. The Board finds the Veteran's testimony to be consistent with the evidence of record, and indicative of findings of behavioral changes following the in-service assault or harassment. Moreover, the Veteran's testimony of suffering no mental health problems until after entering service constitutes credible evidence of aggravation in honorable active service. The evidence reflects that the Veteran has been diagnosed with PTSD either related to or aggravated by in-service trauma. Under these circumstances, the presumption of soundness is not rebutted; and the Veteran's claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression is granted. It is noted that several other diagnoses were rendered during the pendency of the claim, however, the psychiatric symptoms, which were predominantly diagnosed as PTSD and depression, have not varied and therefore service connection for an acquired psychiatric disorder, including PTSD and depression is granted. (CONTINUED ON NEXT PAGE) ORDER Service connection for an acquired psychiatric disability, to include PTSD and depression, is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs