Citation Nr: 1416557	
Decision Date: 04/14/14    Archive Date: 04/24/14

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 posttraumatic stress disorder (PTSD).  


REPRESENTATION

Appellant (Veteran) represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Christopher McEntee, 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.  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.  

In an April 2013 decision, the Board denied the claim on appeal.  The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court).  Pursuant to a Joint Motion filed by the parties to this matter, the Court, in a December 2013 Order, remanded this matter to the Board.  The claim has been returned to the Board for additional appellate review.  

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.  

Certain evidence has been added to the claims file since the most-recent November 2012 supplemental statement of the case, and has been considered pursuant to the March 2013 and March 2014 waivers of initial Agency of Original Jurisdiction review of the evidence.  38 C.F.R. §§19.31, 20.1304 (2013).   


FINDING OF FACT

The evidence of record is in a state of equipoise with regard to whether the Veteran's PTSD is related to service.  


CONCLUSION OF LAW

The criteria for service connection for PTSD have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran claims that she incurred PTSD during service as the result of unwanted sexual advances committed during active duty service between 1970 and 1974.  She alleges that her PTSD is due to an officer's attempts to kiss and hug her during service.  She claims that his unwanted sexual advances occurred at her workplace where she served as a dental technician and he served as a dentist.  She also stated that the officer later attempted to enter her living quarters, but that she screamed, ran, hid in her closet, and then emerged after he had departed from her quarters.  During her Board hearing, the Veteran stated that she later filed paperwork which detailed that the officer "tried to ... rape me."  But the Veteran later qualified her assertion, indicating that the officer's actions amounted to "groping" rather than sexual assault or rape.  

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with § 4.125(a) (i.e., Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)), (2) a link, established by medical evidence, between current PTSD symptoms and an in-service stressor, and (3) credible supporting evidence that the claimed in-service stressor occurred.  

As noted above, the Veteran asserts that she has PTSD due to noncombat-related stressors; specifically, that she experienced unwanted sexual advances while serving on active duty.  

Cases involving allegations of a personal assault fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran complains.  See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999).  As noted under Paragraph 5.14(d), Part III, of VA's Adjudication Procedure Manual, M21-1, personal assault is an event of human design that threatens or inflicts harm.  Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking.  Id.  Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault.  See YR v. West, 11 Vet. App. 393, 399 (1998).  The Manual also notes that since personal assault, to include sexual assault, can be an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, making it difficult to obtain direct evidence, and requiring that the alternative evidence be sought.  AZ and AY v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013).  

Under § 3.304(f)(3), 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.  38 C.F.R. § 3.304(f)(3) (2013).  See VA's Adjudication Procedural Manual, M21-1, Part III, 5.14(d).  

In addition, under 38 C.F.R. § 3.304(f)(3), 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.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  In Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (Court) found that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology."  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

In this matter, the Board now finds service connection warranted for PTSD.  In contrast to the evidence of record in April 2013, the evidence is now in equipoise.  

The evidence of record clearly indicates that the Veteran currently has PTSD.  She has been diagnosed with PTSD since a September 1998 VA compensation examination report of record found the Veteran with PTSD, "delayed type."  The Board notes that VA treatment records dated since the late 1990s until August 2012 note PTSD, as do July 2012 and June 2013 VA examination reports addressing the Veteran's claim.  

Furthermore, the evidence of record documents that the Veteran was treated during service for symptoms associated with a psychiatric disorder, and that she experienced disciplinary problems during service.  STRs reflect that the Veteran was treated on one occasion during service, in August 1972, for an acute anxiety reaction to "an unwanted pregnancy" which apparently resulted in a "therapeutic abortion."  In January 1973, the Veteran was treated on an inpatient basis for "daily" heroin abuse, for which she underwent a urinalysis monitoring program from January to April 1973.  Certain SPRs note that the Veteran underwent nonjudicial punishments (NJPs) in October and December 1973 for disorders such as unauthorized absence.  Further, the SPRs indicate that she was discharged in January 1974 partly due to her disciplinary problems.  

The ultimate question before the Board is whether the Veteran's PTSD relates to service - either the alleged in-service harassment, or the acute anxiety reaction she was treated for in August 1972.  Two medical opinions address this issue of causation.  One, the July 2012 VA examiner does not support the Veteran's claim.  The other, the June 2013 examiner, does support the Veteran's claim.  

The July 2012 examiner indicated a review of the claims file and an examination and interview of the Veteran.  The examiner stated that it would be speculative to relate the Veteran's PTSD to service due to the "length of time elapsed between military service and psychiatric symptom report and treatment."  The examiner noted the earliest treatment in the early 1980s after service ending in the mid 1970s.  The examiner then stated that the current PTSD "appears less likely" related to the acute anxiety reaction in service in 1972.  In support, the examiner explained that an acute reaction would not lead to "ongoing chronic psychiatric symptomatology" that the Veteran shows.  The examiner again noted the lapse in time between the Veteran's anxiety in service and post-service treatment.  The examiner also noted that the Veteran did not have a current diagnosis of anxiety disorder.  Finally, the examiner indicated that the opinions were based on clinical interview of the Veteran, review of the record, the chronology of the onset of symptoms, and on her training and experience as a psychologist.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion).  

By contrast, the June 2013 examiner, who also indicated a review of the claims file and an examination of the Veteran's, stated that: 

The [V]eteran 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 ... 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[.]

As indicated earlier, to deny a claim to service connection, the evidence must preponderate against the claim.  See Alemany, supra.  As a result of the June 2013 examiner's opinion, the evidence currently does not preponderate against the Veteran's assertion that her PTSD relates to her service.  As such, service connection for PTSD is now warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  


ORDER

Service connection for PTSD is granted.  



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs