Citation Nr: 1756937	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  11-22 340	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).  


REPRESENTATION

Veteran represented by:	Robert J. Levine, Attorney


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel


INTRODUCTION

The Veteran served on active duty from December 1958 to May 1962.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Providence, Rhode Island Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing) in May 2013.  A transcript of that hearing has been associated with the claims file.  

The Board previously remanded this matter in July 2014.  

In the July 2014 Board remand, the issue of whether new and material evidence had been received to reopen the claim regarding whether the Veteran's July 1961 motor vehicle accident was in the line of duty or was the result of his own misconduct was referred for adjudication.  In August 2015, the RO issued a line of duty determination which confirmed and continued the prior determination that the accident did not occur in the line of duty but was due to willful misconduct.  In August 2015 the AOJ informed the Veteran of the administrative decision.  The Veteran did not file a timely notice of disagreement with the August 2015 administrative decision.  As he did not file a timely notice of disagreement regarding the line of duty determination, that issue is not currently before the Board.  

The Board again remanded the appeal in December 2016 for additional development.  

The Board acknowledges that the appeal of the issues of whether new and material evidence has been received to reopen the claims of entitlement to service connection for residuals of a broken pelvis, a broken back, a broken hip, and a head injury have been perfected and certified to the Board.  See VA Form 8, dated June 2015.  The Board's review of the claims file reveals that the Veteran has requested a Board videoconference hearing on these issues.  See January 2015 VA Form 9.  It appears that the AOJ is still taking action on this issue to schedule the Veteran's requested Board hearing.  See Appeal Certification to BVA Worksheet dated in June 2015.  As such, the Board will not accept jurisdiction over such issues at this time, but they will be the subject a subsequent Board decision, if otherwise in order.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, the probative evidence of record demonstrates the Veteran's acquired psychiatric disorder, diagnosed as other specified trauma, stressor related disorder, intermittent explosive disorder and PTSD, was incurred during active service.  


CONCLUSION OF LAW

The criteria for the establishment of service connection for an acquired psychiatric disorder, diagnosed as other specified trauma, stressor related disorder, intermittent explosive disorder and PTSD, are met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA.  See 38 U.S.C. § 5103; 38 C.F.R. § 3.159 (2012).  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision.  

Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Service connection requires competent evidence showing:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

Establishing service connection for PTSD requires a medical diagnosis of the condition; credible supporting evidence that the claimed in-service stressor actually occurred and a link, established by medical evidence, between current symptoms and the in-service stressor.  38 C.F.R. § 3.304 (f).

Under 38 C.F.R. § 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 a 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.  VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.  Id.  

The probative medical evidence of record reflects that the Veteran has been diagnosed with other specified trauma, stressor related disorder, intermittent explosive disorder and PTSD.  See October 2015 VA examination and opinion, the January 2017 VA opinion, March 2017 VA examination and the October 2017 disability benefits questionnaire.  The October 2015 VA examination and opinion and the January 2017 VA opinion reflect that the Veteran was diagnosed with other specified trauma, stressor related disorder and found it was at least as likely as not that this disability was the result of his military service, specifically his reported military sexual trauma.  The March 2017 VA opinion reflects a diagnosis of PTSD also based on military sexual trauma, however, the examiner also states that the Veteran's assessment was not convincing of a PTSD diagnosis, although he endorsed all the PTSD symptoms.  The examiner also found, however, that the Veteran's manner, presentation, and joviality were incongruent with someone who was truly traumatized and that, while it was not contested that there may have been untoward sexual advances made by superior officers, or that he witness untoward negative behaviors from an officer to bunkmate, these episodes did not appear traumatic.  Finally the Veteran submitted an October 2017 disability benefits questionnaire by a social worker, in which he was diagnosed with anxiety, depression, intermittent explosive disorder and PTSD and related intermittent explosive disorder and PTSD to the Veteran's in-service sexual assault.  

Although the evidence of record does not specifically include any findings of sexual trauma or psychiatric issues in service, the STRs do demonstrate the Veteran was treated for injuries resulting from a fight with several civilians in March 1959.  Moreover, in a September 2010 lay statement, a friend of the Veteran reported that she had known him prior to service and reported that after he came back from military service, his behavior changed drastically with regular outbursts of rage.  In the October 2015 VA examination, the Veteran reported a history of having numerous fist fights in his life.  The Veteran is competent to report his experiences of military sexual trauma during his active service.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  In addition, these reports are credible as they are consistent with the lay statement from his friend and the psychiatric evaluations provided in October 2015, January 2017, March 2017 and October 2017.  

Therefore, the probative medical records, taken together, at the very least places the evidence in a state of relative equipoise as to whether the Veteran's current acquired psychiatric disability, diagnosed as other specified trauma, stressor related disorder, intermittent explosive disorder and PTSD, was incurred during active service and the Board must resolve doubt in the Veteran's favor and grant the claim for service connection for an acquired psychiatric disability, diagnosed as other specified trauma, stressor related disorder, intermittent explosive disorder and PTSD.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  


ORDER

Service connection for an acquired psychiatric disorder, diagnosed as other specified trauma, stressor related disorder, intermittent explosive disorder and PTSD, is granted.  




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs