Citation Nr: 1632383 Decision Date: 08/15/16 Archive Date: 08/24/16 DOCKET NO. 14-06 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and anxiety disorder. 2. Entitlement to service connection for left breast cancer. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Although service connection for PTSD was denied in a September 2015 rating decision, the claim on appeal for an anxiety disorder encompasses any psychiatric disorder raised by the record, including PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, this issue is properly before the Board; there was no need for the Veteran to separately appeal the September 2015 rating decision. The Veteran testified at a hearing before the undersigned in April 2016. A transcript is of record. The service connection claim for left breast cancer is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has been diagnosed with PTSD medically linked to a personal assault during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD are satisfied. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for PTSD based on a personal assault during active service is established. In order to establish service connection for PTSD, there must be medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (2015), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fifth Edition of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM-V). Diagnoses of PTSD are generally presumed to have been made in accordance with the DSM criteria. Cohen v. Brown, 10 Vet. App. 128, 139-42 (1997). In PTSD claims 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). 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. Id. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Id. 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. Further, for PTSD claims based on personal assault, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F. 3d 1379, 1382 (Fed. Cir. 2011). Thus, "a medical opinion based on a personal examination of a veteran can be used to establish the occurrence of a stressor." Id.; see Patton v. West, 12 Vet. App. 272, 279-280 (1999) (holding that in PTSD cases based on personal assault, a VA examiner's finding that the claimant's PTSD is etiologically linked to the alleged in-service stressor can serve as verification that the stressor occurred). The sole fact that a veteran never reported an in-service sexual assault may not be considered as relevant evidence tending to prove that a sexual assault did not occur. AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In her April 2016 hearing testimony, and in an October 2014 written statement, the Veteran stated that she had PTSD as a result of being raped during active service. The Veteran stated that she did not tell anyone about the assault or seek psychiatric treatment at the time. According to her hearing testimony, her PTSD symptoms were triggered in 2002 when she picked up a brochure about resources available for Veterans who have been the victim of military sexual trauma (MST). VA treatment records dating from 2012 to 2015 show diagnoses of PTSD based on MST from a VA psychologist (for example, a January 2013 VA treatment record reflects a diagnosis of "PTSD (MST)"), and specifically reference the Veteran's assault during active service. Resolving reasonable doubt, service connection for PTSD is established. The diagnoses of PTSD by a VA psychologist based on the Veteran's personal assault during active service constitute probative evidence supporting the occurrence of the in-service stressor. See Menegassi, 638 F. 3d at 1382; Patton, 12 Vet. App. at 279-80. These diagnoses also support a medical link between the Veteran's current PTSD symptoms and the in-service stressor, as they are predicated on that stressor. The VA treatment records do not reference any trauma prior to or since active service. The fact that there is no evidence of symptoms of PTSD during active service is consistent with the Veteran's testimony that her PTSD symptoms were later triggered in 2002. Moreover, such evidence is not required. See 38 C.F.R. § 3.304(f)(5). There is no evidence weighing against the credibility of the Veteran's statements, and the diagnoses of PTSD from 2012 to 2015 by a VA psychologist based on the MST support her statements. In sum, service connection for PTSD is granted. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.304(f); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for PTSD is granted. REMAND The claim for cancer of the left breast must be remanded for further development to ensure that it is afforded every due consideration, and to aid the Board in making an informed decision. The Veteran states that her breast cancer was caused by exposure to environmental toxins while stationed at Fort McClellan. Specifically, she states that she was exposed to chemicals from polychlorinated biphenyls (PCB's) from a nearby chemical plant operated by Monsanto, from chemical warfare agents such as mustard gas and sarin, and from the chemical agents used in herbicides such as Agent Orange. Further, she states that she was exposed to asbestos contained in the pipes and flooring in her barracks, including from cleaning the floor, which involved scraping it with a razor, as reflected in her April 2016 hearing testimony. Appropriate development must be undertaken to assess the likelihood and extent of the Veteran's exposures to the various environmental toxins at Ft. McClellan she described. In this regard, VA recognizes that some service members stationed at Ft. McClellan may have been exposed to one or more of several hazardous materials, "likely at low levels," including radioactive compounds (cesium-137 and cobalt-60) and chemical warfare agents (mustard gas and nerve agents) used in decontamination training and testing activities in isolated locations on the base, and PCB's from the Monsanto plant in the neighboring town of Anniston. See http://www.publichealth.va.gov/exposures/fort-mcclellan/. The website notes that high level exposure to the above materials may cause a variety of adverse health effects, but that there is no evidence of exposures of this magnitude having occurred at Fort McClellan. Id. Nevertheless, appropriate development through the U.S. Joint Services Records Research Center (JSRRC) or other appropriate agency should be undertaken to assess the likelihood and extent of the Veteran's exposure to any of these chemicals, as well as to asbestos from piping and flooring in her barracks, including from cleaning activities. The Board notes that in 2013, the Agency of Toxic Substances and Disease Registry (ATSDR) completed an assessment of the potential health risks caused by airborne PCB's in Anniston and concluded that the concentrations were "not expected to result in an increased cancer risk or other harmful effects in people living in the neighborhoods outside the perimeter of the former PCB manufacturing facility." A copy of this report should be added to the claims file and sent to the Veteran. It is available at the above-cited website. With regard to whether the Veteran was exposed to an herbicide agent at Ft. McClellan, when there is an assertion of herbicide exposure outside of Vietnam, Korea at or near the demilitarized zone, and certain other specified areas (i.e. Thailand), VA must follow the procedures set forth in the Veterans Benefits Administration (VBA) Adjudication Procedure Manual to aid in the determination as to whether herbicide exposure is established. See VBA Manual, M21-1MR, IV, ii.2.C.10.o. Specifically, when a veteran provides the approximate dates of the asserted exposure, as well as the location and nature of such exposure, this information is to be furnished to the Compensation Service via e-mail at VAVBAWAS/CO/211/AGENTORANGE, and request a review of the Department of Defense's (DOD's) inventory of herbicide operations to determine whether herbicides were used as stated. If the Compensation Service is unable to confirm that the herbicides were so used, then the information is to be submitted to the Joint Services Records Research Center (JSRRC) to determine whether such exposure can be verified. If the JSRRC is unable to verify the exposure, the case must be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist, based on the example provided in M21-1MR, Part IV, Subpart ii, 1.D.16c. Id. On remand, the AOJ must undertake this development. The Board is aware of a May 2016 letter from the Veteran's private treating physician, P. Weiss, M.D., stating that the Veteran's breast cancer was "as likely as not" due to exposure to PCB's, Agent Orange, and "other known carcinogens" while serving at Fort McClellan. However, as the likelihood and extent of such exposure cannot yet be determined based on the evidence of record, this opinion is not sufficient to make an informed decision at this time. Finally, the service treatment records show that in October 1974, the Veteran was noted to have a growth in her right breast that had been present for six months. An April 1975 entry also reflects a right breast growth characterized as a cyst. This evidence is sufficient to warrant a medical opinion as to whether these findings are medically related to the development of left breast cancer. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a copy of the ATSDR Health Consultation report on airborne PCB's in Anniston, available on VA's website at http://www.publichealth.va.gov/exposures/fort-mcclellan. A copy of this report should also be added to the claims file. 2. Undertake appropriate development with the JSRRC and/or other appropriate agency to assess the likelihood and extent of the Veteran's exposure at Ft. McClellan (where she was stationed from August 1972 to about November 1972) to the following: 1) Radioactive compounds (cesium-137 and cobalt-60), 2) Chemical warfare agents (mustard gas and nerve agents) 3) PCB's, and 4) Asbestos in pipes and floors where the Veteran was housed, according to her testimony, and which she cleaned by scrubbing and scraping with a razor. 3. Conduct the following development (as directed in VBA's Adjudication Procedure Manual) regarding the Veteran's stated exposure to an herbicide agent such as that used in Agent Orange, including in any commercial herbicides, while stationed at Ft. McClellan from August 1972 to November 1972: a. Send the Veteran a letter requesting her to describe how she was exposed to an herbicide agent, such as that used in Agent Orange, while stationed at Ft. McClellan. b. Then, after the Veteran has been provided an opportunity for response (and whether or not she responds), send any information regarding the Veteran's described herbicide exposure to the Compensation Service at VAVBAWAS/CO/211/AGENTORANGE, and request a review of the Department of Defense's (DOD's) inventory of herbicide operations to determine whether herbicides were used as described. c. If the Compensation Service is unable to confirm that the herbicides were used as described, then the information is to be submitted to the Joint Services Records Research Center (JSRRC) to determine whether such exposure can be verified. d. If the JSRRC is unable to verify the exposure, the case must be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist, based on the example provided in VBA's Adjudication Procedure Manual. 3. Then, after the above development is completed, arrange for a VA medical opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran's left breast cancer resulted from any established exposure to environmental toxins at Ft. McClellan (radioactive compounds, chemical warfare agents, PCB's, or asbestos, as determined from the above development). The examiner must also render an opinion as to the likelihood that the Veteran's breast cancer is related to the right breast growths noted during service in October 1974 and April 1975. The examiner must provide a complete explanation in support of the conclusion reached. 4. Then, review the claims file and ensure that all requested development actions have been completed in full. 5. Finally, after completing any other development that may be indicated, readjudicate the claim. If the benefits sought are not granted, the Veteran and her representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs