Citation Nr: 1610578 Decision Date: 03/16/16 Archive Date: 03/23/16 DOCKET NO. 12-27 116A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from August 1981 to February 2003. 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 Waco, Texas. This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. The Veteran testified before the undersigned in a November 2015 Travel Board hearing, the transcript of which is included in the record. FINDINGS OF FACT 1. The Veteran has a currently diagnosed psychiatric disorder, including PTSD and depression. 2. The Veteran has credibly reported that she was verbally harassed during service and service treatment records confirm that she manifested symptoms of depression and anxiety during service. 3. The Veteran's currently diagnosed PTSD and depression is related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD and depression, have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). The claim of service connection for a psychiatric disorder has been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision (grant of service connection for PTSD and depression), no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 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. §§ 1110, 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). The Veteran's PTSD and depression are not "chronic disease[s]" listed under 38 C.F.R. § 3.309(a) (2015); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, 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). Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance 38 C.F.R. § 4.125(a), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). 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 the 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). Significantly, for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. See Bradford v. Nicholson, 20 Vet. App. 200 (2006); Patton v. West, 12 Vet. App. 272, 278 (1999). 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"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection Analysis for Psychiatric Disorder The Veteran contends that she has a psychiatric disorder, depression and PTSD, that is related to service. Specifically, the Veteran has stated that she was verbally harassed during service while serving on the USS Boxer. She testified that she was one of the first female service members to arrive on the ship. Further, she testified that men on the ship would comment about her physique and would embarrass and humiliate her. She further stated that she would barricade the berth with a mop and bucket out of fear of physical abuse and further harassment by fellow male service members. Initially, the Board finds that the Veteran is competent to report in-service verbal harassment. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses). Further, the Board finds her reports credible. Service treatment records reveal some evidence of psychiatric symptoms during service. In a December 1991 treatment record, the Veteran was noted to be very emotional. The impression noted was that her symptoms were due to probable PMS and other physiologic symptoms. In a January 1998 service treatment record it was noted that the Veteran was crying and was emotional. In a November 1998 treatment record from the Foundation Health Federal Service, Inc., the Veteran specifically reported depression and anxiety symptoms. The Veteran further testified during the November 2015 Board hearing that she did not seek specific psychiatric treatment during service because she was afraid of possible repercussions from her unit. She also testified that she was trying to "suck it up" and deal with her symptom without seeking professional treatment in service. Although service treatment records do not reveal any specific psychiatric diagnoses, the Board finds that the Veteran demonstrated some psychiatric symptoms in service and has competently and credibly reported that she was harassed in service. In addition, the Veteran has competently and credibly reported that she has had symptoms of a psychiatric disorder since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, the Board finds that the evidence weighs in favor of a finding that the Veteran's PTSD and depression are related to the in-service verbal harassment. Post-service VA treatment records reveal diagnoses of depression and PTSD. A June 2005 post-service VA treatment note reflects that the Veteran was prescribed Zoloft. An August 2005 VA treatment records show notations of acute reaction to stress and secondary insomnia due to stress. More recent VA treatment records show numerous diagnoses for PTSD and depression due to MST (military sexual trauma). See e.g., September 2011, November 2011, and January 2012 VA treatment notes in Virtual VA. An October 2015 VA treatment note shows the Veteran complained of excessive crying spells on a daily basis and decrease in social activities. The Veteran reported passive thoughts of suicide for the last 15 years and it was noted that she had been verbally harassed during service. She stated that the verbal abuse that she experienced while on active duty affected multiple areas in her life. She stated that she had trust and self-esteem issues as a resulted of the in-service verbal harassment. PTSD was noted and that the Veteran continued to have periods of tearfulness and crying spells. It was further indicated that the Veteran may benefit from increasing medication to target her remaining depressive and anxiety symptoms. Other 2015 VA psychiatric treatment records show a diagnosis of PTSD. The record also includes a February 2016 statement of the Veteran's treating psychiatrist indicating that the Veteran has a current diagnosis of PTSD related to the military sexual trauma in service to include the events the Veteran has credibly indicated occurred in service. As the Veteran has competently and credibly reported that she was verbally harassed in service and as VA medical professionals have associated the Veteran's current PTSD and depression with the Veteran's verbal harassment in service, the Board finds that the evidence is at least in equipoise that the Veteran's PTSD with depression is related to her active duty service. Moreover, there is no contrary medical opinion in the evidence of record. As such, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for PTSD and depression is warranted. 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, to include PTSD and depression is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs