Citation Nr: 1757574 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 15-24 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD) based on personal assault. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had honorable active service in the U.S. Army from July 1960 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In October 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of the hearing is of record. In November 2015, the Veteran requested a videoconference Board hearing in connection with the appeal; however, because he had previously provided Board hearing testimony the prior month and provided no explanation as to why a second hearing may be warranted, the Board finds that the request for a second hearing was submitted in error. Furthermore, in light of the grant of benefits sought on appeal for reasons explained below, no additional Board hearing is needed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017) and 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The stressor event of personal assault occurred during service. 2. The current diagnosis of PTSD is related to the in-service personal assault. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for PTSD based on personal assault have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). For reasons explained below, the Board is granting service connection for PTSD based on personal assault. Given the favorable outcome of the service connection appeal, which is a full grant of the benefits sought, the appeal has been substantiated, obviating the need for discussion of how VA fulfilled the duties to notify and assist with respect to the issue. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Legal Criteria 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. § 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). As a general matter, 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). The Veteran is currently diagnosed with PTSD, which is not a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the Board finds that the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service Connection Analysis The Veteran contends that the current PTSD was caused by a personal assault that occurred during service. At the October 2015 Board hearing, the Veteran testified that he was physically assaulted by an intoxicated sergeant in August 1962 and cut him with a broken beer bottle to defend himself, which resulted in a court-martial proceeding. This is the only claimed in-service stressor. During the course of this appeal, VA amended 38 C.F.R. § 3.304(f); however, these changes are inapplicable to this case because the Veteran has not alleged that his PTSD is related to a fear of hostile military or terrorist activity or that he was a prisoner of war. Rather, the Veteran claims that he has PTSD as the result of an in-service personal assault. For 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. 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 explained economic or social behavior changes. VA may submit any evidence it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C F R § 3.304(f)(5) (2017). Preliminarily, the Board finds that in this case a psychiatric disability did not exist prior to service. Because a psychiatric disability was not noted at service entrance, the presumption of sound condition as it relates to a psychiatric diagnosis is applicable. On the July 1960 service enlistment report of medical history, the Veteran checked "Yes" when asked if he then had or had ever had a history of bed wetting and nervous trouble of any sort, which suggests that some psychiatric symptoms may have existed prior to active service; however, this is not a clear notation of preexisting psychiatric disability, but only shows some preexisting symptoms of disability. After review of the lay and medical evidence, the Board finds that the evidence is at least in equipoise on the question of whether a personal assault occurred during service. According to service personnel records pertaining to the Veteran's special court martial proceedings, the Veteran had a physical altercation with a first sergeant in August 1962, which was during the tour of duty in Germany. The service personnel records collectively show that the first sergeant approached the Veteran and told him to go to bed. After the Veteran refused, explaining that he had not yet finished his cigarette, he and the first sergeant began to argue, and a scuffle ensued. During the course of the physical altercation, the Veteran broke a beer bottle and cut the first sergeant's neck, ear, and back. Service members who witnessed the physical assault stated that the first sergeant had consumed alcohol earlier in the evening, as well as had the Veteran. The Veteran was found guilty of violating the Uniform Code of Military Justice, Article 128, by committing an assault upon a first sergeant by cutting him with a beer bottle and intentionally inflicting grievous bodily harm upon him and confined to hard labor for four months. On the August 1963 service separation report of medical history, the Veteran checked "Yes" when asked if he then had or had ever had frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort, which shows in-service psychiatric symptoms after the occurrence of the stressor event. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that a personal assault occurred during service. The evidence is in equipoise on the question of whether the Veteran has a current diagnosis of PTSD related to the in-service stressor event of the August 1962 physical assault by a sergeant. In an October 2015 letter, a treating VA psychologist noted that the Veteran was assessed in March 2011 and diagnosed with PTSD. The treating VA psychologist linked the PTSD diagnosis to the claimed in-service stressor event of the Veteran being physically attacked by a first sergeant and fighting him off with a broken beer bottle. See also July 2015 Disability Benefits Questionnaire for PTSD (noting a diagnosis of PTSD by a treating VA psychologist and linking the diagnosis to the in-service personal assault, and stating that the Veteran had experienced the same pattern of psychiatric symptoms for 50 years). The treating VA psychologist noted that there were no other traumas in the Veteran's history that would account for the PTSD symptoms. Because the treating VA psychologist had adequate facts and data on which to base the medical opinion and provided adequate rationale for the medical opinion, it is of significant probative value. The Board also notes that, on the August 1963 service separation report of medical history, the Veteran checked "Yes" when asked if he then had or had ever had frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort, which is evidence that tends to support a finding of in-service psychiatric symptoms at service separation and following the in-service personal assault. Although the July 2012 VA examiner opined that the Veteran had no mental disorder, and the reported symptoms did not meet the diagnostic criteria for PTSD, the July 2012 VA medical opinion is of lesser probative than the October 2015 medical opinion because the July 2012 VA examiner noted but did not adequately address the significance of the prior (i.e., 2011) psychiatric diagnosis of PTSD reflected in VA treatment records. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for PTSD under 3.304(f)(5) have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs