Citation Nr: 1722145 Decision Date: 06/15/17 Archive Date: 06/29/17 DOCKET NO. 12-28 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran had active service from November 1979 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In April 2014 the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In January 2015 the Board found that new and material evidence had been submitted sufficient to reopen the claim for service connection for an acquired psychiatric disorder, to include PTSD, and remanded this matter for further development. FINDINGS OF FACT The Veteran has an acquired psychiatric disorder, diagnosed as PTSD, that is due to an in-service military sexual trauma (MST). CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for acquired psychiatric disorder, diagnosed as PTSD, have been met. 38 U.S.C.A. §§ 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have ben codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). Given the favorable disposition of the Veteran's claims for service connection for an acquired psychiatric disorder, including PTSD, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. In the January 2015 remand the Board directed the AOJ to schedule the Veteran for a VA examination to address the nature and etiology of any diagnosed psychiatric disorder. On February 9, 2015, the Appeals Management Center initiated an examination request at the Oklahoma City VA Medical Center (VAMC). The Appeals Management Center indicated that the Veteran failed to appear for the examination, which was scheduled for February 26, 2015. It was noted that the Veteran's contact information was incorrect and a second VA examination was scheduled for May 1, 2015. The Veteran failed to appear for the examination. Under VA regulations, when a claimant, without showing good cause, fails to report for an examination scheduled in conjunction with an original claim, the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655 (b) (2016). In the April 2017 appellate brief, the Veteran's representative acknowledged that the Veteran did not attend the VA examination; however, neither the Veteran nor her representative have given a reason as to why she failed to report for the VA examination or that she had good cause for missing the examination. Furthermore, the Veteran and her representative have not indicated that she missed the second examination due to a lack of notice. Therefore, the Board finds that good cause has not been demonstrated for the failure to report for the May 2015 VA examination, and her claims for a service connection of an acquired psychiatric disorder, including PTSD, will be rated based on the evidence of record. Id. Service Connection The Veteran contends that service connection is warranted for her currently diagnosed psychiatric disorder, PTSD, due to an in-service MST. Specifically, the Veteran contends she was raped while in-service and she suffers from PTSD as a result of this rape. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2016). That determination requires a finding of current disability that is related to an injury or disease occurred in- service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in- service. 38 C.F.R. § 3.303 (2016). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except for defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or when clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304 (2016). VA bears the burden of proof to rebut the presumption. To establish service connection for PTSD, the Veteran must show: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) medical evidence establishing a link between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f) (2016). The Veteran's PTSD claim is predicated on a reported history of in-service personal assault. It falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events alleged by the Veteran. See, e.g., AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013); Patton v. West, 12 Vet. App. 272 (1999). Relevant regulations stipulate that, if a PTSD claim is based on in-service personal assault, evidence from sources other than a Veteran's service records may corroborate his or her 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; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Id. Evidence of behavior changes following a 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one 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 (2016). The Veteran served on active duty from November 1979 to January 1980. She contended to have been subjected to MST in January 1980. Her service treatment records (STRs) are negative for complaints, findings or diagnosis of psychiatric problems. The Veteran has stated that she did not seek treatment for psychological problems or issues related to the MST during her active service. The Veteran has stated that she reported her MST, though there is no report of MST in her STRs or service personnel records (SPRs). The Veteran's SPRs reflect that in December 1979 the Veteran was counseled about being absent from her assigned place of duty. On January 11, 1980 the Veteran was counseled on three separate occasions. She was first counselled regarding insubordination. Rehabilitative transfer or discharge was recommended. The Veteran was next counseled on January 11 after she requested to see her Commanding Officer. In that counseling session she indicated that she wanted out of the service at all costs. She stated she had taken pills the week prior to do harm to herself and that she had become engaged to her boyfriend. She stated that she would do anything to get out of the service. Finally, the Veteran was again counselled on the 11th regarding refusing a direct order. She reportedly was disrespectful to her superior officers and stated that she wished to be "locked up." The Veteran commented that she did not "recall what [the officer] was talking about, but that if it will get me out as soon as can be." It was recommended that the Veteran be discharged from the trainee program. On January 12, 1980 the Veteran was counselled for refusing to get out of her bunk. On January 14, 1980 the Veteran was counselled regarding failure to follow orders. It was noted that she cancelled her appointment at the hospital. The Veteran's remarks on her counseling form indicated that she cancelled her appointment because the doctors told her there was not anything wrong because they found out she wanted out of the military. On January 15, 1980 the Veteran requested to see her Commanding Officer regarding her field training. It was indicated that the Veteran did not have a reason to be kept from the field. The Veteran requested to see the Chaplain and an appointment to see the Chaplain was set. Further on January 15, 1980 the Veteran was recommended for discharge from the trainee program. LTC H indicated that the Veteran experienced problems in her initial assignment and was transferred to the rehabilitative unit after Christmas break. He noted that the Veteran continued to be disrespectful and refused to follow orders. He reported an instance where the Veteran had gone AWOL and indicated that her sole motivation was to be discharged as soon as possible. The Veteran's counselling forms indicate that she was transferred to a rehabilitative unit after January 11, 1980. On January 17, 1980 the Veteran signed an acknowledgement of notification of proposed separation up trainee discharge program (TDP). The Veteran acknowledged her notification of her honorable separation and did not elect to make any statements or undergo a separation physical examination. On January 18, 1980 SGT T issued a sworn statement, indicating that on January 10, 1980 the Veteran refused to leave her bunk and reported that she had taken pills. On January 21, 1980 SFC M signed a sworn statement indicating that the Veteran had been a marginal solider and had been reported numerous times for talking in formation and causing problems. The SFC M also stated that the Veteran had "more than the average" encounters with the male soldiers and precipitated these encounters. It was reported that the Veteran had a foul mouth and could not or would not follow instructions. SFC M also reported that after return from Christmas holiday the Veteran indicated she might be pregnant, but was not pregnant and was a sick call abuser. The Veteran was discharged on January 25, 1980. Her Proposed Separation Action UP Trainee Discharge Program (TDP) form stated that she was separated because she could not or would not adapt socially or emotionally to military life and that she could not meet the minimum standards prescribed form successful completion of training. It was not indicated that the Veteran was pregnant. The Veteran's DD-214 indicated that she was honorably discharged on January 25, 1980. Her separation code was JET and the narrative reason for discharge was Trainee Discharge Program (TDP) marginal or nonproductive. STRs show that on in December 1979, the Veteran was seen with complaints of vaginal swelling and abdominal pain along with heavy discharge for the past five months. It was indicated that the symptoms had begun after an abortion. The Veteran was referred to an obstetrician/gynecologist. On another occasion, she was treated for heavy vaginal discharge, itching, and pelvic pain. She reported an elective termination of pregnancy in June 1979. Her pelvic exam was normal except for mild tenderness and vaginal discharge. She was diagnosed with trichomonas vaginitis. She was prescribed medication. A pregnancy test was negative. Later in December, the Veteran was treated for a bladder infection and back pain. In January 1980, the Veteran was seen with spotting and moderate cramping. It was questioned if she was pregnant. The next day, the Veteran reported having taken thirty tabs of percogesic. It was noted that the Veteran had a very horrible attitude and was disrespectful. It was noted that she said she would continue to act up until she was discharged. A few days later, the Veteran was seen with complaints of lower abdominal pain for the past two to three weeks. She reported a history of an abortion. She presented with left flank and abdominal pain since mid-December which waxes and wanes. She had a negative pregnancy blood test the week prior. She denied discharge and indicated she was told she had a cyst. She was referred for a gynecological consult. It was indicated that she had last had intercourse in December 1979 and that based on her negative blood tests she likely had an ovarian cyst. She was then seen with complaints of low back pain and pain around the rib cage and abdomen. She was referred to gynecology. She was then seen at the gynecology clinic and was diagnosed with a possible ovarian cyst. Later in January 1980, the Veteran was seen for a request for a pregnancy test and abdomen check. Her pregnancy test was negative. Post service, a May 2007 VAMC primary care note indicated that the Veteran had a history of PTSD and a reported MST. In a May 2007 VAMC gynecology clinic note, the Veteran reported having been raped while in-service. She was diagnosed with major depressive disorder in June 2007. In July 2007 she requested a PTSD diagnosis in order to substantiate her claim for service connection of PTSD. A January 2008 VAMC medical record reflects that the Veteran reported PTSD symptoms due to a history of MST. She related having been raped while in-service. A VAMC mental health initial evaluation in January 2008 notes that the Veteran presented for a PTSD evaluation. She stated that she was raped while in-service. The VA physician stated that the Veteran's medical records were positive for MST and sexual abuse as a child. She reported depression by history. The Veteran reported being homeless and unemployed. Her GAF score was a 30. It was indicated that depression with psychotic features versus delusional disorder needed to be ruled out. The VA physician discussed the Veteran's willingness to attend a PTSD evaluation. At a September 2008 VAMC mental health consultation, the Veteran reported that she had been raped in-service. She stated she had anger, anxiety, sleep disturbance, depression, frequent flashbacks, and nightmares related to the MST which increased in frequency the year prior. She was found to have PTS like symptoms and non-specified depressive disorder. Her GAF score was 60-65. It was determined that bipolar disorder needed to be ruled out. An October 2008 VAMC mental health note indicated that the Veteran returned for follow-up care. She reported wanting to work on the problems associated with having been raped. She showed the examiner the rejection letter regarding her disability claim. She had an irritable mood, with reported anger and distrust of taking medication. She stated that she just needed to talk to someone about her rape incident. She was found to have depressive disorder and PTSD symptoms. Bipolar disorder was needed to be ruled-out. Her GAF score was a 60. The Veteran started group therapy at VAMC in November 2008. A November VAMC group therapy note indicated the Veteran reported her MST and stated that if she kept herself alone she did not have a risk of being raped again. It was noted that she smiled with inappropriate affect during the discussion of her MST. She continued with group therapy in December 2009. In a January 2009 VAMC group therapy note she indicated that she would get angry when she was told her MST did not happen. She reported liking the group session for support. She continued with group therapy through 2012. At a March 2009 VAMC psychiatry consultation, the Veteran presented for diagnostic clarification. She reported that her diagnosis for PTSD like symptoms was not sufficient. She reported that since the "rape" incident which happened during her military service, she had nightmares and flashbacks when the incident was brought up, especially when stuck in an elevator with men or when a male tried to hug her. She reported that memories intruded on her mind at least twice a week. She reported disturbed sleep and being irritable most of the time. She stated that it was hard for her to have a trusting relationship and that she closed herself off to dissociate from situation or surroundings, in order to feel better about herself. The diagnosis was depressive disorder, not otherwise specified, PTSD and rule out bipolar disorder. Later in March 2009, a VAMC psychiatry note reflects that the Veteran was evaluated by a different VA psychiatrist. She stated that she was raped three weeks prior to the end of her basic training. She said that she went to the Chaplin and told him about it and was seen by some of her superior Officers who said that was shy the women were allowed in the service in the first place. She stated that she was put into treatment and subsequently discharged. The Veteran stated that everyone she came in contact had the same opinion of the female soldiers and did not get any help. She was diagnosed with PTSD and unspecified bipolar disorder. At a September 2010 VA examination the Veteran reported her MST. She reported that she had been married for 17 years and had two children, but was not in contact with her ex-husband or her children, who were grown. She reported being homeless. She stated that her only social contact was when she was brought to the VAMC by a transport service. She stated that she had been in group therapy at the VAMC for three years. She reported a problem trusting people. The examiner found the Veteran to have delusional thoughts and a thought process disorder. The Veteran did disclose to the examiner that she believed that she was raped during basic training. The Veteran avoided giving any details regarding the circumstances. The Veteran presented with a number of problems related to mood including depressed mood, sleeplessness, and delusional thinking. The Veteran had difficulty staying on topic and verbalizing her symptoms to the examiner. She had a history of depression and bipolar disorder. The examiner found that the Veteran did not meet the diagnostic criteria for PTSD. The examiner stated that the Veteran believed that she was raped while in basic training, but was unable to verbalize any of her symptoms regarding avoidance criteria or symptoms of hyperarousal other than difficulty sleeping. No other mental disorders were found. The examiner stated that due to the Veteran's oppositional behavior in-service it was less likely than not that her current diagnosis began in service. In March 2008 the Veteran's mother submitted a lay statement in support of her daughter's claim of MST. The Veteran's mother reported that her daughter called her and stated that she was had trouble with one of the leaders and that the other women were making fun of her. The Veteran's mother stated that the Veteran then told her she had been raped and that when she reported it nothing was done. The Veteran testified at a hearing in January 2010. She stated she returned from Christmas break at the beginning of January 1980. She reported having finished training in the field and was celebrating in an on-base recreation hall. She stated that she was in a smaller room with other trainees and when she returned from the bathroom there, "was nobody there but him." She stated that she was then raped. She testified that she reported her rape to the officer of the day and her sergeant. She was told that they would not report the rape and was ordered to return to her barracks. She states that she reported the rape to her Staff Sergeant and was referred to her Captain. She stated that the Captain referred her to the Chaplain. She testified that the Chaplain brought her to the hospital where she underwent an exam. She stated that she never spoke with the military police and that as far as she knew the rape was never reported. The Veteran further testified that she did not have sexual intercourse while in basic training, but did have intercourse while on Christmas break. She denied being pregnant at the time of her discharge. The Veteran further testified that when she was discharged she told her mother that she had been raped. In August 2012, a Veteran's Service Officer with the Oklahoma Department of Veterans Affairs submitted a statement regarding his investigation of the Veteran's claims. The officer stated that his research, "concluded that it was more likely than not that the Veteran suffered a significant emotional event while on a U.S. Army installation while on active duty, which immediately caused a decline in the Veteran's performance and reliability as an asset to the Uniformed Services." The Officer stated that such events often ended the service member's career - generally through an honorable discharge which was coded indicating the service member was unsuitable or unable to adapt to military service. In April 2014, the Veteran testified before the undersigned. She described her MST as having occurred before she graduated from basic training. She stated that she was invited to go relax with some of her fellow female trainees. When she exited the bathroom she was alone with a male, who raped her. She testified that she went to her commander's office. She stated that she saw her Staff Sergeant and her Captain, who referred her to the Chaplain. She was then sent to the infirmary and was told she was pregnant. She stated that she was discharged due to being pregnant, though she was not pregnant. She testified that the rape was not reported. Initially, as per the Board's prior January 2015 remand, the September 2010 VA examiner might have implied that the Veteran had a mood disorder that began prior to service. However, she was unable to state that such disorder clearly and unmistakably preexisted service. Significantly, there is no psychiatric disorder noted at the time of the entrance examination in November 1979. Therefore, in this case, the Board does not reach the question of whether any preexisting disability was aggravated by service and the issue is one of direct service connection for an acquired psychiatric disorder, to include PTSD. After review of the record, the Board finds that by resolving all reasonable doubt in favor of the Veteran, service connection for PTSD based on MST is established. Initially, the Board notes that the Veteran's failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). While not documented by her STRs or SPRs, the occurrence of the MST is supported by the significant behavioral changes found in the Veteran's SPRs, the lay statement from her mother, and the lay statement from the Oklahoma VA Officer. The Veteran enlisted and reported to basic training in November 1979. Prior to the MST the Veteran had only one counseling note in December 1979 for being absent from her assigned duty location. She had no behavioral or insubordination counseling reports in the several weeks she was in basic training in November and December 1979. She did not have behavioral or insubordination counseling reports prior to the MST, which the Veteran stated occurred in the first week of January 1980. After the MST the Veteran had six counseling reports due to insubordination, failure to follow direct orders, and an attempt to self-harm. She repeatedly stated she wanted to be discharged. Her STRs after the MST also suggest that she was seeking to be discharged. Furthermore, her MST was supported by the lay statement from her mother, who stated that the Veteran reported the MST to her prior to being discharged. Finally, the statement from the Oklahoma VA Officer is credible and competent evidence in support of the Veteran's claim. The Officer supported the Veteran's statement that she was discharged due to having been raped and found that the evidence established that the Veteran was raped. The Board finds that the Veteran did suffer an MST. The Veteran was diagnosed with PTSD by two different VA psychiatrists in March 2009 who each appear to have based their diagnoses on the Veteran's reported MST. The VA psychiatrists' reports each suggest that they accepted that the Veteran suffered a MST in service and that she has PTSD related to her MST. In this case, there is nothing in the record that directly contradicts the Veteran's statements and testimony, her treating psychiatrists never question her account of an MST in service, she has submitted favorable and detailed lay statements, and her SPRs clearly document behavior changes around the time of the MST; therefore, the Board finds there is sufficient credible evidence to corroborate the Veteran's account of the in service MST. Moreover, her diagnosed PTSD reasonably appears to have been attributed to the in-service MST by her treating psychiatrists. When resolving all doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric disorder, diagnosed as PTSD, arising from military sexual trauma, is warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD, is granted. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs