Citation Nr: 9921665 Decision Date: 08/02/99 Archive Date: 08/12/99 DOCKET NO. 91-48 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD K. S. Hughes, Associate Counsel INTRODUCTION The veteran served on active duty from October 1981 to November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied service connection for "female problems," a bilateral knee disorder, and PTSD. The Board remanded this case in December 1991 and June 1994 for additional development, consisting of obtaining treatment records which had not been previously secured. Thereafter, the RO accomplished the additional development and returned the claims file to the Board. In September 1996, the Board denied service connection for a gynecological disorder and remanded the issues of service connection for PTSD and disorders of the right and left knee for additional development. This development was to include obtaining additional treatment records, affording the veteran an opportunity to submit any evidence which might corroborate her allegations, and affording her appropriate VA examinations. The RO accomplished the additional development and, by a March 1999 rating decision, the RO granted service connection for bilateral patellar chondromalacia. This grant represents a complete resolution of the appeal with regard to the issues of entitlement to service connection for disorders of the right and left knee. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). If the veteran desires to challenge the disability rating assigned for his bilateral patellar chondromalacia, she is required to file a timely notice of disagreement with the March 1999 rating decision. We note that she was so informed in a March 1999 letter. Additionally, by a March 1999 supplemental statement of the case, the RO denied service connection for PTSD. Accordingly, the decision of the Board herein is limited to the issue of entitlement to service connection for PTSD. FINDINGS OF FACT 1. The veteran has a current medical diagnosis of PTSD which relates the diagnosis to her claimed inservice "personal trauma and personal assault." 2. The veteran's claimed inservice stressors are not related to combat. 3. The veteran's reported stressors are not sufficiently supported by service records or other credible supporting evidence from any source. 4. There are no medical evaluations that have diagnosed PTSD based upon actual, verified, or credible experiences during active duty. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's DD 214, Certificate of Release or Discharge from Active Duty, reflects that she served on active duty from October 1981 to November 1988. Her primary specialties were executive administrative assistant and administrative NCO (Non-Commissioned Officer). The character of the veteran's discharge was honorable. The veteran's May 1981 Report of Medical Examination shows that she had a normal psychiatric evaluation and her Report of Medical History is negative for depression or excessive worry. A December 1982 treatment record from the mental hygiene clinic notes that the veteran had a history of chronic tension headaches which had increased during the pervious year with induction into the Army. A September 1983 Report of Medical Examination shows that she was psychiatrically normal. An October 1983 report from a dietitian notes a recommendation of referral to a mental health worker for behavior modification. In August 1985, the veteran's chief complaint was headache and she reported that she was "burned out." She also reported that she took classes at night and worked at a word processor all day. She complained that she felt exhausted and needed a less stressful job. The examiner noted that a review of the veteran's chart revealed multiple recurrences of a few specific problems; consisting of migraine headaches, upper respiratory problems versus allergies, and many recurrences of vaginal infections. It was also noted that her biggest problem was migraine headaches which were worsened by tension type headaches. An April 1985 Report of Medical Examination shows that the veteran was psychiatrically normal. A July 1988 Emergency Care and Treatment report reflects that the veteran was requesting a prescription refill and notes that she was under a lot of stress in transportation and had a history of migraine headaches once or twice per week. A Mental Health Clinic report, dated in October 1987, shows that the veteran was seen for follow-up regarding job problems, overweight, and attitude about the United States Army. It was noted that the veteran was going PCS (permanent change of station) to Korea and wanted out of the army. The assessment was occupational problems. Upon separation examination in August 1988, the veteran had a normal psychiatric evaluation; however, she reported a history of depression and excessive worry. The examiner elaborated that the veteran had experienced mild depression since assigned to Japan. The veteran's November 1988 VA Form 21-526, Veteran's Application for Compensation or Pension, includes a claim of "nervous stomach" since 1986. In December 1989, the veteran was referred for psychiatric consultation for evaluation of her nervous stomach/sleeping problems. A January 1990 report of psychiatric evaluation reflects that, for five weeks, the veteran had been in receipt of treatment from the Mental Health Clinic in Student Health Services at "Cal State Dominguez" where she was a full-time student. It was noted that the veteran began seeing the psychologist because she was not sleeping well and was having family problems. She also reported that she began treatment originally because of problems which she had in the military. Specifically, the veteran reported that, while in the military, she received counseling from an Army Chaplain who had a degree in psychology, because, as she had a top security clearance, she did not want visits to a mental health facility on her record. Initially, the veteran reported that she sought treatment because of job pressures and pressures of "everyday military life" and, later during the examination, the veteran recalled serious problems she had with a colonel who was verbally abusive towards her for 18 months. She also recalled that, on two occasions, he was also physically assaultive. The veteran stated that she reported this to her immediate supervisor and there were witnesses to the colonel's physical violence; however, nothing was done about her complaints and she was told that she should not take the colonel's behavior personally. The examiner commented that the veteran "remains emotionally distraught as a result of these experiences and can't get them out of her mind." The diagnosis was PTSD, delayed. The RO received a statement from the veteran in June 1990 which recounted her stressful experiences during service. Specifically, she recalled that she endured daily verbal abuse and almost daily "punches in the arm" ("which got harder and harder each day") by a superior officer for whom she worked as a secretary. She also recalled public humiliation by this officer and one occasion in which she was "grabbed by the arm and pulled into office against" her will. The veteran claimed that, since July 1987 when she left Germany, she has experienced sleepless nights, very bad dreams when she does fall asleep, consistent nervous stomach, very low self-esteem, deep depression, and severe headaches. She also claimed that the mental abuse which she experienced during service has caused her weight problem and affected her high blood pressure. The veteran stated that she was blamed when things which were her responsibility went wrong as well things for which a civilian secretary was responsible. She stated that, after about two months on the job, the colonel started to yell at her when things were not getting done around the office; however, he never yelled at the civilian secretary or raised his voice at the staff sergeant who was head clerk in the office. The veteran recalled that she was humiliated in front of subordinates and seniors on several occasions. She provided examples of the colonel's language consisting of "goddamn it, can't you do a goddamn thing right," "where in the hell is my goddamn coffee," "what the sam-hell is wrong with you?" or "[y]ou're a goddamn sergeant in this goddamn United States Army ...etc." She recollected that, when she was placed on the over weight program, she felt degraded when the colonel insisted that she get weighed-in in front of the entire office and announced what her weight was for all to hear. The veteran remembered that she went home in tears most nights. She reported that, although everyone knew that she was enrolled in night school, the colonel insisted that she work late even when others offered to take her place. The veteran stated that her superiors in the office discouraged her from reporting this abuse; however, several staff members witnessed this treatment and her superiors knew of the abuse. She stated that she never filed a complaint against the colonel because she was told that he could make trouble for her, and she was scared and intimidated. VA outpatient treatment records show that, in August 1990, the veteran was given a psychiatric referral for evaluation of insomnia and compulsive overeating. Thereafter, she was referred to the Day Hospital for further evaluation and treatment. These records include a September 1990 treatment report which notes longstanding reactive dysthymia relative to identity and parental abandonment by biological father and criticism by both grandparents in childhood. These records also include notations of depression. Private treatment records from the Student Health Center at California State University, Dominguez Hills, reflect that, in May 1989, the veteran stated that she was going to psychiatric counseling for her problems, e.g., insomnia. An assessment including depression is noted. In September 1996, the Board remanded the issue of entitlement to service connection for PTSD to the RO for additional development to include obtaining medical records which were not already of record, informing the veteran that the record did not confirm her stressors as required for a grant of service connection for PTSD and affording her an opportunity to submit any evidence which might corroborate her allegations, and taking appropriate action to confirm the stressors alleged by the veteran to include obtaining her service administrative records. By an October 1996 letter from the RO, the veteran was requested to furnish the name and address of any physicians who had treated her in the recent past for psychiatric problems. She was further advised that a review of her claims folder, as it stood, did not confirm her stressors for PTSD. Accordingly, the veteran was given 60 days to furnish any evidence she may have to corroborate her claim, to include statements of individuals who she indicated had witnessed her stressors. The claims file does not include a response to this request for evidence from the veteran. In November 1998, the RO received the veteran's DA Form 2-1, service personnel records, which show that she had overseas service in Germany, Belgium, and Japan. These records also reflect that the veteran was PFC (Private First Class) upon induction in October 1981, she was promoted to SP4 (Specialist 4) in April 1983, SP5 in December 1984, and SGT (Sergeant) effective from October 1985. Pertinent Law and Regulations Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered, or disease contracted, in the line of duty. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1998). Where a veteran served ninety days or more during a period of war or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.307, 3.309 (1998). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a 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). Under the provisions of 38 C.F.R. § 3.304(f), service connection for PTSD requires (1) medical evidence establishing a clear diagnosis of the condition, (2) credible supporting evidence that the claimed inservice stressor(s) actually occurred, and (3) a link, established by medical evidence, between current symptomatology and a claimed inservice stressor. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that she was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has set forth the analytical framework for establishing the presence of a recognizable stressor, the essential prerequisite to support a diagnosis of PTSD and entitlement to service connection. There are two major components to this analysis: first, it must be established whether the evidence demonstrates that stressful events occurred and, second, it must be established whether the stressful events are sufficient to support a diagnosis of PTSD. Cohen; Moreau; Zarycki v. Brown, 6 Vet. App. 91 (1993). Regarding combat-related service, the Court articulated a two-step process of determining whether a veteran "engaged in combat with the enemy." However, there is no allegation or evidence in this case that the veteran served in combat. If the evidence does not show that the veteran was engaged in combat, there must be corroborative evidence of the claimed stressor(s). See 38 U.S.C.A. § 1154(b) (West 1991); Zarycki. The Court has recently held that "credible supporting evidence" means that the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. See Cohen; Moreau; and Dizoglio v. Brown, 9 Vet. App. 163 (1996). Veterans who claim service connection for disabilities due to an in-service personal assault face unique problems documenting their claims. A stressor development letter specifically tailored for personal assault cases should be sent to the veteran. The Board is aware that many incidents of personal assault are not officially reported and that victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. However, alternate sources are available that may provide credible support to a claim of an inservice personal assault. These include medical or counseling treatment records following the incident, military or civilian police reports, reports from crisis intervention or other emergency centers, statements from confidants such as family members, roommates, clergy, or fellow service members, or copies of personal diaries or journals. VA Adjudication Manual M21-1 (M21-1), Part III, 5.14(c) (February 20, 1996); and former M21-1, Part III, 7.46c(2) (October 11, 1995). It is noted that behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Examples of such behavior changes include, but are not limited to: visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; lay statements indicating increased use or abuse of leave without an apparent reason such as family obligations or family illnesses; changes in performance and performance evaluations; lay statements describing episodes of depression, panic attacks, or anxiety with no identifiable reasons for the episodes; increased or decreased use of prescription medications; increased use of over-the-counter medications; evidence of substance abuse such as alcohol or drugs; increased disregard for military or civilian authority; obsessive behavior such as overeating or undereating; pregnancy tests at the time of the incident; increased interest in test for sexually transmitted diseases; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; or breakup of a primary relationship. In personal assault claims, secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. VA Adjudication Manual M21-1 (M21-1), Part III, 5.14(c); and former M21-1, Part III, 7.46c(2) (October 11, 1995). The Court has held that the Manual M21-1 provisions in Manual M21-1, part III, 7.46 and 5.14(c), dealing with PTSD are substantive rules that are the equivalent of VA regulations. Cohen; YR v. West, 11 Vet. App. 393, 398-99 (1998). In West v. Brown, 7 Vet. App. 70 (1994), the Court held that the sufficiency of a stressor is a medical determination. Adjudicators may not make a determination on this point in the absence of independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In Cohen, the Court pointed out that the VA had adopted the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) in amending 38 C.F.R. §§ 4.125, 4.126, and that the standard regarding assessing the sufficiency of a stressor was now a more subjective one. See 61 Fed. Reg. 52695-52702 (1996). The Court took judicial notice of the fact that the shift in diagnostic criteria changed from an objective ("would evoke ... in almost anyone") standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard. The criteria now require exposure to a traumatic event and response involving intense fear, helplessness, or horror. A more susceptible individual may have PTSD based on exposure to a stressor that would not necessarily have the same effect on "almost everyone." The sufficiency of a stressor is, accordingly, now a clinical determination for the examining mental health professional. Cohen, at 153. The Court also noted that where "there has been an 'unequivocal' diagnosis of PTSD by mental heath professionals, the adjudicators must presume that the diagnosis was made in accordance with the applicable DSM criteria as to both adequacy of symptomatology and sufficiency of the stressor (or stressors)." Cohen, at 153. In a more recent case, the Court noted that although it had previously stated that "'something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence' and that '[a]n opinion by a mental health professional based on a post service examination of the veteran cannot be used to establish the occurrence of a stressor,'" those statements did not apply to PTSD arising from personal assault. Patton v. West, 12 Vet. App. 272, 280 (1999) (citations omitted). In that decision the Court also stated that the RO was responsible for assisting a claimant in a personal-assault claim by, in part, furnishing a clinical evaluation of behavior evidence. Analysis Well Groundedness and Duty to Assist: The initial question before the Board is whether the veteran has submitted a well grounded claim as required by 38 U.S.C.A. § 5107. A well- grounded claim is one which is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). More specifically, the Court has indicated that a veteran seeking service connection for PTSD must satisfy the initial burden of submitting a well grounded claim by furnishing (1) medical evidence of a current disability, (2) medical or lay evidence of an in-service stressor, and (3) medical evidence of a nexus between service and the current PTSD disability. See Cohen v. Brown, 10 Vet. App. 128 (1997). Here, the evidence consists of (1) a January 1990 report of VA examination which provides a diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of the claimed in-service stressor), (2) the veteran's own statement of inservice stressors (which the Board presumes to be true for purposes of determining whether her claim is well-grounded, see King v. Brown, 5 Vet. App. 19 (1993)), and (3) medical evidence of a nexus between service and the current PTSD disability, in the form of the January 1990 report of VA examination which relates PTSD to one or more of the claimed in-service stressors. Based on the foregoing, the Board concludes that the veteran has submitted a well-grounded claim for service connection for PTSD. Because the veteran has submitted a well-grounded claim, VA has a duty to assist in the development of facts pertinent to her claim. 38 U.S.C.A. § 5107(a). In an October 1996 letter, the RO requested that the veteran provide the name and address of any physicians who had treated her in the recent past for psychiatric problems and any evidence she may have to corroborate her claim, to include statements of individuals who she indicated had witnessed her stressors. No response from the veteran to this request is contained in the claims file. The veteran has been notified that the record did not confirm her stressors as required for a grant of service connection for PTSD and she has been requested to provide additional evidence which might corroborate her allegations. However, she has not responded to this request. In this regard, the Board notes that the Court has said that the duty to assist is not a one way street and that if a veteran wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 191 (1991). The record is otherwise devoid of any indication that there is other relevant evidence available, such as letters to relatives or friends, potential corroborating testimony from such individuals, or the like, which might assist the Board in reaching a decision on the claim of service connection for PTSD or that there are other possible sources for corroboration of the stressors. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance to the veteran in developing the facts pertinent to this claim is required to comply with the duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a). Entitlement to Service Connection for PTSD: At the outset, it must be reiterated that the only issue now before the Board regarding a psychiatric disorder is entitlement to service connection for PTSD. Accordingly, this decision will not adjudicate service connection for any other psychiatric disorder. The starting point for any determination with regard to PTSD is whether there is a "stressor." Under the controlling regulation, there must be credible supporting evidence that the claimed inservice stressor(s) actually occurred. 38 C.F.R. § 3.304(f). The existence of an event alleged as a "stressor" that results in PTSD, though not the adequacy of the alleged event to cause PTSD, is an adjudicative, not a medical determination. Zarycki. As the veteran did not engage in combat and as her reported stressors are not related to combat, her assertions, standing alone, cannot as a matter of law provide evidence to establish that an inservice event claimed as a stressor occurred. See Dizoglio. This does not mean that she cannot establish that the alleged inservice events occurred, it only means that other "credible supporting evidence from any source" is necessary. See Cohen. Since there is a clear diagnosis of PTSD, it must then be determined whether there is "credible supporting evidence from any source" of the veteran's alleged stressors. The January 1990 report of VA examination contains the only diagnosis of PTSD reflected in the record. In the January 1990 VA examination report, the physician noted that the veteran had been verbally abused and, on two occasions, physically assaulted by the colonel for whom she worked. However, there is no evidence to support the veteran's allegations. Although her service medical records reflect an assessment of occupational problems and show that she was treated in the mental hygiene clinic for chronic tension headaches and "burn out" due to having to work at a word processor all day, taking classes at night, and experiencing multiple recurrences of migraine headaches, upper respiratory problems, and vaginal infections, this evidence contains no mention whatsoever of verbal abuse or physical assault on any occasion. Similarly, the veteran's VA outpatient treatment records reflect that she was given a psychiatric referral for evaluation of insomnia and compulsive overeating. These records note longstanding reactive dysthymia relative to identity and parental abandonment by biological father and criticism by both grandparents in childhood; however, they contain no mention of verbal or physical abuse during her military service. The veteran's private treatment records show that she was in receipt of psychiatric treatment for "her problems" but they also make no mention of verbal or physical abuse during her period of military service. Although the physician who conducted January 1990 VA examination reported that the veteran's PTSD was related to verbal abuse and physical assault which the veteran experienced during her military service, this diagnosis was based on the history of stressor provided by the veteran. Though the veteran may have been exposed to some stressful situations in service, these situations are, at present, unverified. Her lay statements regarding the existence of such stressors is insufficient to establish the occurrence of the stressors in question, in the absence of corroborating "credible supporting evidence." Lacking any evidence tending to corroborate the verbal abuse and physical assault to which the veteran claims to have been subjected, the Board finds that the incidents are unsupported by credible evidence. When the veteran was provided another opportunity to submit supporting evidence, there was no response. Thus, while the veteran does have a diagnosis of PTSD related to purported in-service stressors, those stressors are not shown by satisfactory evidence to have occurred. Having so concluded, the Board finds a preponderance of the credible evidence is against the claim and that neither a VA psychiatric examination nor further interpretation by a clinician of the inservice symptoms/behavior is necessary. See M21-1, Part III, 5.14(c); Patton. ORDER Entitlement to service connection for PTSD is denied. M. Sabulsky Member, Board of Veterans' Appeals