Citation Nr: 1341696 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 98-19 688A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from October 1988 to April 1989 and from July 1989 to July 1993 This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. On her substantive appeal, received at the RO in July 2004, the Veteran requested a hearing before a Veterans Law Judge in Washington, D.C. In September 2004, she submitted a statement to the RO clarifying that she did not desire a hearing, but instead wanted to proceed with Board review of her appeal. There are no other outstanding hearing requests of record. See 38 C.F.R. § 20.702(e) (2013). In a September 2005 decision, the Board denied the Veteran's claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2007 Order, the Court vacated and remanded the Board's September 2005 decision and implemented the provisions of an April 2007 Joint Motion for Remand (Joint Motion). In July 2007, the Board remanded the claim in accordance with the April 2007 Joint Motion. The Board again denied the Veteran's claim in November 2008 and September 2010 decisions, which the Veteran also appealed to the Court. These decisions were vacated and remanded by the Court via January 2010 and July 2011 Orders that executed the terms of corresponding Joint Motions. The parties to the most recent July 2011 Joint Motion concurred that, upon remand, a Veterans Law Judge other than the signatory to the prior Board decisions should be assigned to review the appeal in light of his explicit refusal to complete the development requested in the January 2010 Joint Motion. However, only the Chairman of the Board, or the Board's Vice Chairman if such authority has been designated to him by the Chairman, may disqualify a Veterans Law Judge from acting in an appeal. See 38 U.S.C.A. §§ 512(a), 7102, 7104 (West 2002); see also 38 C.F.R. §§ 19.12(c), 19.14(a) (2013). In November 2011, the Vice Chairman of the Board at that time construed the parties' arguments as a motion for disqualification of the Veterans Law Judge who authored the prior Board decisions from further participation in the appeal and granted the same. The undersigned has been assigned this appeal. In February 2012, the Board last remanded this case. The issue of entitlement to an effective date earlier than May 13, 2005, for the award of a total disability rating based on individual unemployability (TDIU) as a result of clear and unmistakable error (CUE) in a July 2003 rating decision has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue, and the matter is referred to the AOJ for appropriate action. FINDING OF FACT PTSD is attributable to service. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 30306. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with §4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). The following provision applies to a claim of service connection for PTSD based on 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. The Veteran contends that she endured several stressors during service as follows: (1) she was sexually assaulted (raped) (2) she was involved in two motor vehicle accidents, striking her head in both instances, and one of the accidents was due to an encounter with a land mine during combat; (3) Her fiancé, mother, and father died and she was denied time off to visit her ailing mother; (4) she had an abortion; (5) she saw destroyed villages in Saudi Arabia and felt explosions; and (6) the living conditions were unsanitary in Saudi Arabia. The Board finds that the Veteran's stressor of being sexually assaulted has been satisfactorily corroborated by both lay and medical evidence, and she has a diagnosis of PTSD based on this corroborated sexual assault. It is only necessary that the Veteran have one verified stressor upon which a diagnosis of PTSD has been rendered. That is the case here with regard to the sexual assault stressor despite the acknowledged inconsistent and conflicting evidence regarding the other claimed PTSD stressors. The Veteran maintains that she was sexually assaulted by two individuals, the first time by a service member during service and then again after service by a boyfriend. With regard to the inservice sexual assault, she indicated that it occurred in 1991, prior to her return to the United States, and while stationed in Saudi Arabia. She reported that she was ashamed and embarrassed and did not report the occurrence of the rape when it happened. She maintains that she developed a sexually transmitted disease (STD) after the rape. She initially stated that she contracted herpes, but later indicated that it was chlamydia. She indicates that that she became pregnant and suffered a miscarriage as a result of the attack. Although at one point she indicated that she was unclear if she was pregnant by the rapist or her fiancé, it appears from the dates in the record that the pregnancy by her fiancé occurred a year later. Turning to the record for corroboration of this event, the service records do not document a rape. As indicated, the Veteran has never maintained that she reported the rape. The U. S. Court of Appeals for the Federal Circuit (Federal Circuit) Circuit has held that "the Board and Veterans Court may not rely on a veteran's failure to report an in-service sexual assault to military authorities as pertinent evidence that the sexual assault did not occur." AZ v. Shinseki, ___F.3d___, No. 2012-7046, 2013 WL (Fed. Cir. Sept. 30, 2013). The service treatment records do verify treatment for a STD as the Veteran alleges. In May 1991, the service treatment records document chlamydia, contemporaneous to the time when the Veteran said the rape occurred. Post-service VA treatment records also document that the Veteran has had recurrent herpes. Thus, there is general corroboration that the Veteran was treated for a STD during service, as she reported. A miscarriage is not documented in the STRs; however, the post-service VA medical records reflect the Veteran has a history of having suffered several miscarriages, although no details were provided. This evidence demonstrates the Veteran has miscarried, as documented by her physicians. There is lay evidence in support of the in-service sexual assault stressor. The Veteran's friend and fellow service member, C.B., in a March 2008 letter, attested to the occurrence of this event, indicating that the Veteran did not initially tell her that she had been raped, but became withdrawn and isolated, eventually confiding in her. She also stated that the Veteran told her that the rape resulted in a pregnancy which she miscarried. Although C.B. submitted an earlier statement which did not mention the rape, the earlier letter was not pertinent to the issue of a sexual assault. Thus, the fact that she submitted one letter which discussed the assault and one letter which did not does not diminish the credibility of the second letter. In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). C.B. is competent to state that she observed the Veteran acting withdrawn. She is also credible in her report as her recollections are also supported by medical evidence. The Board must pay particular attention to the requirements of 38 C.F.R. § 3.304(f)(5), which, as addressed above, provide that VA must consider other substitute forms of evidence and information, beyond that contained in the Veteran's STRs, as possible evidence in support of the occurrence of a claimed in-service stressor related to personal assault. Claims involving personal assaults fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events the Veteran has alleged. See, e.g., Patton v. West, 12 Vet. App. at 281. Although there is no in-service report of a rape, the Federal Circuit has indicated that this is not a basis to deny service connection for PTSD. The STRs do document that the Veteran was diagnosed with an STD (chlamydia) in the time frame right after the purported sexual assault occurred. In addition, subsequent medical records also documented that the Veteran has recurrent herpes. There is lay evidence from a fellow service member corroborating the occurrence of the rape and subsequent miscarriage. There is medical evidence supporting the occurrence of the in-service sexual assault stressor and which diagnoses PTSD based upon that stressor. In a July 2010 report, Dr. G.L.W., a board-certified physician, indicated that he had reviewed the Veteran's relevant medical records from her claims file and also examined the Veteran. He concluded that she had PTSD which was due to traumatic experiences, including sustaining a rape while she was stationed in Saudi Arabia. He indicated that the Veteran told him that she was embarrassed and did not report the rape, but began suffering from symptoms of the rape, including flashbacks, nightmares, anxiety, relationship problems, depression, and insomnia. The physician found her to be credible in her report of the rape and the subsequent symptoms. He opined that it was at last as likely as not that the current PTSD was related to this stressor and had its onset during service. The Board finds that with regard to the claimed in-service sexual assault, the Veteran is credible in her report of its occurrence. While acknowledging an inconsistency with regard to the subsequent pregnancy in her substantive appeal, the rest of her reports as well as the lay statement of C.B. and the report of Dr. W. support her account of the rape. Therefore, the evidence in favor of the claim is the in-service STD diagnosis, the lay statement supporting that there was a change in behavior, and the opinion of the private medical examiner that the current diagnosis of PTSD is attributable to the claimed in-service sexual assault. Specifically, this examiner believed the Veteran and found her current diagnosis consistent with the claimed stressor. Therefore, there is evidence that tends to corroborate the existence of the claimed in-service stressor of a sexual assault and there is competent medical evidence attributing the current diagnosis of PTSD to the in-service claimed sexual assault. The Board is particularly persuaded by the examiner's conclusions that the Veteran was credible in her report of the sexual assault stressor. Therefore, there is credible and persuasive evidence supporting the claim of service connection for PTSD which outweighs the evidence against the claim. The other stressors have not been corroborated, but the corroborated in-service sexual assault stressor is sufficient to grant the claim. Accordingly, service connection for PTSD with major depression is warranted. To the extent that other medical evidence on file discounts a diagnosis of PTSD related to an in-service personal assault, the Board notes that in many examination reports, there was no discussion of any inservice sexual trauma, only the post-service sexual trauma. An opinion based on an inaccurate or incomplete history has essentially no probative value. See Kightly v. Brown, 6 Vet. App. 200 (1994). Thus, with regard to PTSD, these medical opinions are not probative. There is medical evidence which diagnoses PTSD based on the in-service rape and in which the physician found the Veteran's account of the rape and ensuing symptoms to be credible. ORDER Service connection for PTSD is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs