Citation Nr: 1800387 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-09 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from March 1978 to March 1982; and from September 1982 to November 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in May 2017 for further development. The Veteran presented testimony at a Board hearing in September 2017. A transcript of the hearing is associated with the Veteran's claims folder. The Board notes that the Veteran also rendered testimony in support of a claim for service connection for a back disability. However, the Board had already granted this claim in a May 2017 decision. Consequently, the issue is not before the Board. FINDINGS OF FACT The Veteran's PTSD is due to a personal assault sustained during service. CONCLUSION OF LAW The criteria for an award of service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). With respect to claims for PTSD based on personal assault, in Patton v. West, 12 Vet. App. 272 (1999), the United States Court of Appeals for Veterans Claims (Court) held that special consideration must be given to claims for PTSD based on personal assault. In particular, the Court held that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault are substantive rules which are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-99 (1998). In personal assault cases, more particularized requirements are established regarding the development of "alternative sources" of information, as service records "may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities." VA ADJUDICATION PROCEDURAL MANUAL M21-M1, Part IV, Subpart ii, Section D.17 (formerly M21-1, Part III, para. 5.14c(5)). For claims involving service connection for PTSD due to personal assault, VA regulations provide, in pertinent part, as follows: (5) If a post-traumatic stress disorder 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. 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 will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 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. 38 C.F.R. § 3.304(f). At the Veteran's September 2017 Board hearing, he testified that in December 2004, he got into a heated argument with two other Army guys while they were in the gym. He stated that shortly afterwards, he was in the shower and was hit in the back of his head. He stated that he was close to losing consciousness; was beaten; and then finally raped. He testified that he did not report the incident out of embarrassment; and that he would "take it his [his] grave." He stated that prior to the incident, he was a senior inspector for inspecting F16 fighters. He was highly respected and had a good job. He stated that after the incident, the people he worked with noticed a change in him. He stated that ultimately, he was told that he couldn't be trusted; and "they took a stripe away from me." He also testified that he was taken out of his duties and was put in maintenance operation controls. He stated that eventually, he was not allowed to reenlist for fear that he would become violent. He stated that this cost him in retirement pay because he didn't get 30 years of service. Instead, he had 29 years and 7-8 months of service. The Board notes that the service personnel records include awards for Outstanding Achievement in March 2000 and for Meritorious Service and performance in an outstanding manner in April 2004. However, they then reflect that he was demoted in February 2007; and was relieved from assignment in November 2007 (Caseflow, 11/10/14, pgs. 60-97). The Veteran underwent a VA examination in February 2015. He reported two stressors. He reported the aforementioned sexual assault. He also reported that he had to take pictures of a helicopter crash in 1997 and that he saw TCN-3rd control nations being beheaded by the Kuwait government. This stressor was deemed to be related to the Veteran's fear of hostile military or terrorist activity. After an examination, the examiner found that although both stressors were adequate to support the diagnosis of PTSD; other criteria were not met. Consequently, the Veteran was not diagnosed with PTSD. Outpatient treatment reports reflect that as early as October 2014, the Veteran was being assessed for possible PTSD (Caseflow, 12/22/15, p. 113). Treatment reports dated June 2015 through December 2015 included numerous diagnoses of PTSD secondary to military sexual trauma (Caseflow, 12/22/15, pgs. 65, 46, 43, 32, 3). The Veteran underwent another VA examination in May 2016. The May 2016 examiner found that the Veteran did meet all the criteria for a DSM-V diagnosis of PTSD. Furthermore, the PTSD was attributed to the Veteran's alleged in-service sexual assault. Analysis In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board finds that the first element of service connection is not in dispute. Both the post service treatment records and the May 2016 VA examination report reflect a current diagnosis of PTSD. The Board finds that the opinion of the May 2016 VA examiner satisfies the third element of service connection in so far as the examiner attributed the Veteran's PTSD to a military stressor. The crux of this claim is whether the Veteran sustained an in-service injury that would satisfy the second element of service connection. The RO denied the claim because the Veteran's in-service stressor was not verified. The Veteran himself has admitted that he did not report the stressor during service. However, the in-service stressor can be verified by evidence of behavior changes. As noted above, an example of a behavioral change includes deterioration in work performance. In this case, the Veteran has not only credibly testified regarding the in-service stressor, he has credibly testified as to how others noticed a change in behavior during service. He credibly testified that he "lost a stripe" and was not permitted to reenlist. Moreover, the Board notes that his testimony is substantiated by the service personnel records. These records reflect exemplary work performance prior to the in-service incident. These same records then reflect that he was demoted in February 2007 and then relieved from assignment in November 2007. The Board finds that the Veteran's credible testimony, coupled with the personnel recrods, constitute sufficient evidence to find that the Veteran did suffer from a personal assault in service. Consequently, the Board finds that the second element of a service connection claim has been met. Since the Board finds that the Veteran has satisfied all three elements of a service connection claim, the Board finds that service connection for PTSD is warranted. ORDER Entitlement to service connection for PTSD is granted. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs