Citation Nr: 1602318 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 11-14 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Jeany Mark, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from December 1976 to December 1980, with additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision by a Department of Veterans Affairs (VA), which denied the benefits sought on appeal. In August 2012, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In a March 2007 rating decision, the RO denied service connection for a psychiatric disability, to include PTSD and depression. The Veteran did not appeal that rating decision and no new evidence pertinent to the basis of the denial of the claim was received by VA within one year from the date of that decision. 38 U.S.C.A. § 7105(b) (West 2014); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2015). However, subsequent to 2007, the Veteran's reserves personnel records containing a clinical evaluation and documenting non-judicial punishment for failure to obey a lawful order in July 1985 were received. Because the additional service records are relevant to the Veteran's claim, the matter will be reconsidered pursuant to the provisions of 38 C.F.R. § 3.156(c) (2015). In September 2014, the Board denied the claim on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand, in June 2015 the Court vacated the Board's decision and remanded the appeal to the Board for appropriate action in accordance with the Joint Motion for Remand. FINDING OF FACT The Veteran has PTSD that was caused by his active service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Requirements In light of the favorable disposition of the claims herein decided, the Board finds that a discussion as to whether VA duties pursuant to the Veterans Claims Assistance Act of 2000 have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. Service Connection The Veteran asserts that he developed a psychiatric disability in service. Specifically, he contends that he developed PTSD due to MST. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2015). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities that are reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (under the criteria of DSM-IV); 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. 38 C.F.R. § 3.304(f) (2015). VA considers diagnoses of mental disorders in accordance with the American Psychiatric Association: The DSM-IV criteria for a diagnosis of PTSD include: (A) exposure to a traumatic event; (B) the traumatic event is persistently experienced in one or more ways; (C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness is indicated by at least three of seven symptoms; (D) persistent symptoms of increased arousal are reflected by at least two of five symptoms; (E) the duration of the disturbance must be more than one month; and (F) the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV). According to the DSM-IV criteria, the traumatic event, or stressor, must involve experiencing, witnessing, or being confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. In addition, the response must involve intense feelings of fear, hopelessness, or horror. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of service, lay testimony alone may establish the occurrence of the claimed stressor. 38 C.F.R. § 3.304(f) (2015). When the evidence does not establish that a veteran is a combat veteran, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his reported service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f) (2015); Pentecost v. Principi, 16 Vet. App. 124 (2002). When 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. 38 C.F.R. § 3.304(f)(5) (2015); see also Patton v. West, 12 Vet. App. 272, 277 (1999). 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. 38 C.F.R. § 3.304(f)(5). 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. Id. For personal assault PTSD claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. 38 C.F.R. § 3.304(f)(5); Menegassi v. Shinseki, 638 F.3d 1379, 1382-83 (Fed. Cir. 2011); Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006); Patton v. West, 12 Vet. App. 272, 280 (1999). See also VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section H, part 30(b), (c), (e) (Aug. 1,2006). The question of whether the 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. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that he developed PTSD due to military sexual trauma (MST). The evidence shows that the Veteran currently suffers from an acquired psychiatric disorder, variously diagnosed as PTSD, anxiety disorder and depression. Most recently, an October 2015 psychological evaluation report provided a diagnosis of PTSD. Thus, the remaining question before the Board is whether there is nexus between the currently diagnosed disorder and his service. Reviewing the Veteran's service treatment records, in August 1978 the Veteran complained of difficulty sleeping and depression. Reportedly, people were making derogatory comments about him and he was not happy in service. He acknowledged heavy use of alcohol at that time. The assessment was obvious depression with other problems that the clinician did not feel qualified to diagnose. The Veteran was treated with medication for 50 days. On follow-up visit, the Veteran reported that he continued to feel depressed. He felt isolated and lonely. He indicated that he was having second thoughts about his military career. In May 1979 the Veteran called the medical dispensary stating that he wanted to kill himself. He was found in an intoxicated state in his room. The Veteran had consumed large amounts of alcohol and claimed to have taken some of his roommate's pill, including aspirin. He was described as combative and uncooperative. On separation examination in December 1980, the Veteran was psychiatrically evaluated as normal. On ACDUTRA examination in July 1983 the Veteran denied a history of depression or excessive worry, and he was psychiatrically evaluated as normal. The Veteran's enlisted performance record from December 1976 through December 1980 recorded all his marks being above 3.0. Reserves personnel records documented non-judicial punishment for failure to obey a lawful order in July 1985, with reduction in rank. VA treatment records show that the Veteran was hospitalized in 2003 and 2006. On both occasions he reported being sexually assaulted in the early 1990's. Pertinent medical history included alcohol and cocaine abuse with a diagnosis of substance induced mood disorder. In July 2003, the Veteran reported onset of depression 10 years earlier. A diagnosis of mood disorder, NOS, rule out PTSD, was noted. In June 2005 he reported PTSD symptoms manifested approximately 13 years earlier after he was raped. A VA treatment note in March 2009, recorded the Veteran's report of being beaten and raped and left in a field during a substance induced blackout 30 years earlier. In July 2009 he was diagnosed with depression. In October 2009, the Veteran reported that he was sexually assaulted by his Commanding Officer in service. He also related being sexually assaulted while under the influence of alcohol or drugs, post service events, and described an incident during which he woke up in a field and realized he had been raped, but did not know who perpetrated the assault. He was diagnosed with PTSD due to sexual trauma in service. In December 2009, he was diagnosed with anxiety disorder, NOS, rule out PTSD. The Veteran's social worker confirmed diagnoses of PTSD and anxiety disorder in December 2010. In a stressor statement in April 2010, the Veteran described going to a party in service where he consumed a couple of drinks, lost consciousness and subsequently awoke in a field realizing he had been raped. He denied reporting the incident at the time. Subsequent VA treatment records show ongoing treatment for an acquired psychiatric disorder. When reviewing medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Here there is evidence both for and against the claim. On VA PTSD examination in November 2010, it was noted that the Veteran was very insecure and was frequently plagued by thoughts that people were talking about him or judging him harshly. The Veteran had a history of heavy substance abuse in remission for more than a year. The Veteran denied any suicidal or homicidal ideations, or experiencing any difficulties in performing activities of daily living. The Veteran denied a history of nightmares, unwanted intrusive memories of the stressor event, flashbacks, difficulty concentrating, or startle reaction. Following an examination of the Veteran, the examiner diagnosed anxiety disorder. While the examiner noted the Veteran's report of in-service MST in 1979, which the examiner determined met the DSM-IV stressor criterion, the examiner determined that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. The examiner further indicated that she was unable to associate the Veteran's anxiety disorder with the reported MST, without resorting to mere speculation. In this regard, the examiner determined that there was no corroborating or documentary supporting evidence of the in-service assault, and the Veteran had stated that he did not remember what happened because he had been intoxicated when the alleged incident occurred. The examiner found that the Veteran's anxiety disorder could be related to multiple nonservice-related factors, including a family history of alcohol use by both parents along with exposure to domestic violence, problems with psychosocial functioning prior to entering military service, and being sexually assaulted twice following military discharge. On VA PTSD examination in July 2011, the Veteran endorsed paranoia and possible auditory hallucinations. He felt that others were aware that he had been a victim of sexual assault and were ridiculing him for it. The Veteran reiterated that he was raped in service in 1979. He related intense fear, feelings of helplessness, and shame. Psychometric testing revealed elevated scores on the atypical response scale of the Trauma Symptom Inventory consistent with an attempt to present himself as especially symptomatic. As a result, exaggeration or feigning of symptoms could not be ruled out. The examiner determined that the Veteran met the DSM-IV stressor criterion due to MST. However, the examiner concluded that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. Instead, the examiner diagnosed anxiety disorder, NOS; polysubstance abuse in sustained full remission, and; personality disorder, NOS, with avoidant personality features. The examiner opined that the Veteran's anxiety disorder was not caused by or the result of the depression and suicide attempt noted in the service treatment records in August 1978 and May 1979. The examiner found that experiences that preceded service, to include his home environment and truancy, may have resulted in his difficulty in adjusting to military life, as documented in the service treatment records. In this regard, the service treatment records noted the Veteran's reports of being unhappy and feeling like others were ridiculing him. At that time he began using alcohol heavily. While the Veteran reported MST, the examiner noted that there was no documentation of the incident and the Veteran had reported being passed out with intoxication when it reportedly occurred. The examiner also noted that when the Veteran was treated post-service discharge in 2003 and 2006 he reported having been raped in the 1990's. The examiner determined that the Veteran's symptoms of anxiety and depression were associated with a history of substance abuse of over 20 years and resultant mood disorder due to polysubstance abuse, as well as his long-standing personality disorder, which was associated with feelings of inadequacy and inferiority, as well as fear of rejection. In support of his claim, in January 2011, C.L.W., the Veteran's social worker, prepared a mental health report wherein she noted the Veteran's report of denial of his claim for service connection for PTSD and proceeded to discuss the DSM-IV criteria for a diagnosis of PTSD in relation to symptoms reported by the Veteran. It was noted that the Veteran was exposed an event that involved an actual serious injury and threat to his physical integrity and his response involved intense fear helplessness and horror when he woke up discovering he had been sodomized. He endorsed disturbing memories and nightmares of the rape, efforts to avoid thoughts and feelings associated with the MST, problems with recalling important aspects of the trauma, decreased interest in activities, feelings of detachment and a sense of a foreshortened future, as well as significant substance use after the rape to avoid thoughts and feelings. C.L.W. referenced psychometric testing in support of her findings. In essence, she noted that the Veteran denied being traumatized by any stressors, prior to and post service discharge, other than MST. C.L.W. opined that the Veteran met the PTSD criteria due to MST. Also in support of the claim, a private psychologist, Dr. C.L.R., prepared a medical opinion report in October 2015 which supports the claim. Dr. C.L.R. reported having reviewed the evidence of record, to include the service treatment records and VA examination reports in 2010 and 2011. She noted that the VA examiners in their opinion reports acknowledged that the alleged MST constituted sufficient stressor to meet PTSD Criterion A, but they failed to diagnose PTSD, and instead diagnosed anxiety disorder, NOS. Dr. C.L.R. agreed with the examiners that a diagnosis of personality disorder was appropriate and existed prior to service and was not caused by it. Yet, she explained that this personality disorder left the Veteran especially non-resilient to interpersonal trauma. Dr. C.L.R. found that the May 1979 suicide attempt stood out as an episode of extreme duress evincing changes in behavior. This incident was of particular significance because the Veteran reported the MST occurred a few days prior to this attempted suicide. With regards to the Veteran's failure to report the MST, Dr. C.L.R. noted the Veteran stated he had failed to report it out of fear of what others might think of him, which was entirely consistent with his personality disorder. Dr. C.L.R. also cited to research studies that found that male rape survivors were much less likely to report an incident of sexual assault. Moreover, MST survivors faced additional factors that further inhibited reporting the assault to the authorities. Dr. C.L.R. noted that in his statements and description of the MST the Veteran fit such profile. Additionally, the Veteran's social worker in January 2011 detailed how the Veteran met the DSM-IV criteria, and although three incidents of sexual trauma were noted, therapy focused on the alleged MST. In sum, Dr. C.L.R. found that the Veteran repeatedly presented symptoms characteristic of a reaction to trauma, as well as MST along with subsequent trauma. He was also variously diagnosed with PTSD and anxiety disorder. Dr. C.L.R. cited to the new Criterion under DSM-5 pertaining to trauma related disorder and opined that the Veteran suffered from PTSD/subthreshold PTSD that more likely than not was due to MST. In this case, the Board finds that all medical opinions of record were submitted by competent medical professionals who either had access to the claims file and medical records and were aware of the Veteran's medical history and sufficiently informed to make a judgment on the etiology of his acquired psychiatric disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (stating that a medical opinion may not be discounted solely because the examiner did not review the claims file). Regarding the final element required to establish service connection for PTSD, credible supporting evidence that the claimed MST occurred, as previously noted, in cases of personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident, including changes in behavior. The Board agrees with Dr. C.L.R. that the Veteran's suicide attempt in May 1979 is sufficient evidence of behavioral changes following the claimed MST. The occurrence of the Veteran's personal assault claim is further strengthened by the medical opinion reports from Dr. C.L.R. and C.L.W. finding that the Veteran's current PTSD was as least as likely as not caused by the alleged MST. These opinions are therefore considered by the Board to constitute evidence that the Veteran's alleged personal assault did, in fact, occur. See 38 C.F.R. § 3.304(f)(4) (2015). Given the Veteran's competent credible testimony regarding the alleged MST, the documented in-service suicide attempt and depression, and as the competent but contrary opinions which directly address the etiology question are entitled to, essentially, equal probative weight, the Board finds that the evidence for and against the claim is relatively evenly balanced, or, in other words, in relative equipoise. Hence, the benefit of the doubt in resolving the issues shall be given to the claimant and entitlement to service connection for PTSD is granted. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for posttraumatic stress disorder is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs