Citation Nr: 1144549 Decision Date: 12/06/11 Archive Date: 12/14/11 DOCKET NO. 04-13 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Susan Carpenter, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board denied the Veteran's claim in March 2007. In October 2008, the Veteran filed an appeal with the United States Court of Appeals for Veterans Claims (Court). In a June 2009 Memorandum Decision, the Court vacated the March 2007 Board decision and remanded the Veteran's case to the Board. The Board remanded the case for additional development in May 2010. FINDING OF FACT The Veteran has PTSD, major depressive disorder, and panic disorder that are attributable to military service. CONCLUSION OF LAW The Veteran has PTSD, major depressive disorder, and panic disorder that are the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a) (2011). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, it should be noted that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was promulgated in November 2000, and has imposed duties on VA to provide notice and assistance to claimants in order to help them substantiate their claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011). However, the Court has held that the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); 38 U.S.C.A. § 5103A(a)(2). In view of the Board's favorable decision and full grant of the benefit sought on appeal in this instance, further assistance is unnecessary to aid the appellant in substantiating his claim. The Veteran claims that he has PTSD as a result of a sexual assault which occurred while he was stationed in Alaska while on active duty. The Veteran's service medical records reflect a report of "nerves" in July 1970. The Veteran was assessed with anxiety neurosis. A psychiatric evaluation was normal at the Veteran's exit from service in December 1970. VA outpatient treatment reports document psychiatric treatment beginning in September 1999 at which time the Veteran was assessed with anxiety and depression. The Veteran was diagnosed with PTSD related to a military sexual assault in November 2001. The records also reflect diagnoses of major depressive disorder and panic disorder with agoraphobia. The records reflect that the Veteran thereafter sought psychiatric treatment through October 2010. Associated with the VA treatment records is an October 2002 letter from the Veteran's treating psychiatrist at VA. The psychiatrist indicated that the Veteran had a diagnosis of chronic PTSD related to a military sexual trauma. Additionally, a second VA psychiatrist submitted a letter in June 2010 and indicated that she evaluated the Veteran and he suffered from PTSD, major depressive disorder, and panic disorder with agoraphobia related to a military sexual trauma that occurred in September 1970 while he was on active duty. Private treatment reports from Vet Center dated from April 2003 to July 2006 reflect that the Veteran was diagnosed with PTSD related to a military sexual assault and treated with therapy. At a September 2010 VA psychiatric examination, the Veteran reported being physically assaulted and raped by an African American male soldier stationed with the Veteran in Alaska. Following a psychiatric evaluation, the examiner diagnosed the Veteran with PTSD related to military sexual trauma and major depressive disorder and panic disorder with agoraphobia secondary to PTSD. The examiner noted that the Veteran's recollection of his assault was consistent with prior reports contained in his medical records. Further, given the stigma surrounding military sexual trauma and male-male sexual assault, the examiner stated that it is not uncommon for male Veteran's not to disclose and to hide this type of trauma. The examiner concluded that there is no reason to doubt the claim made by the Veterans that he was sexually assaulted in service. At a hearing before the Board in September 2011, the Veteran testified that he was stationed in Adak, Alaska for six months while serving in the Navy. He reported that he worked in shipping and receiving and was in charge of storing and sorting office supplies. The Veteran testified that he was raped during that time by an E-4 in the Navy. The Veteran reported that the assault consisted of his perpetrator hitting him in the face and stomach and then taking off his pants and raping him. He stated that he did not report the assault because he was devastated and shocked and did not want to be labeled a "homo" by other soldiers. He indicated that he began to have problems with his rectal area after the assault but never sought treatment. He sought a release from service six months after entering service. The Veteran testified that he waited twenty-one years before he reported that assault until September 11, 2001, when he was watching people jump from windows and had a breakdown. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the Court lay observation is competent. In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has that condition. The evidence must be medical unless it relates to a condition as to which lay observation is competent. Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2011). If a PTSD claim is based on in-service personal assault, evidence from sources other than the appellant's service records may corroborate his 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 PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than service records or evidence of behavior changes may constitute credible supporting evidence of the stressor, and allowing him the opportunity to furnish this type of evidence or advise the 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)(3) (2011). Considering all the evidence of record, and according the Veteran the benefit of the doubt, the Board finds that service connection for PTSD, major depressive disorder, and panic disorder with agoraphobia is warranted. In this regard, the Board notes that the evidence shows a diagnosis of PTSD which meets the pertinent criteria and diagnoses of major depressive disorder and panic disorder related to the sexual assault in service. The Board is cognizant that the Veteran's claimed stressor involving a military sexual trauma has not been clearly verified. However, the claimed stressor has been sufficiently corroborated by the evidence of record to place the issue on appeal into equipoise. Indeed, the most recent VA examiner indicated that the Veteran met the criteria for PTSD and he based the diagnosis on the Veteran's report of being raped while in service. He noted that the Veteran's recounting of events was consistent with previous testimonies. The Veteran can attest to factual matters of which he had first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The September 2010 VA examiner concluded that the Veteran's PTSD was at least as likely as not related to his military experiences and that major depressive disorder and panic disorder are secondary to PTSD. The Board consequently finds that the Veteran has PTSD, major depressive disorder, and panic disorder as a result of his military service. An award of service connection is warranted. ORDER Entitlement to service connection for PTSD, major depressive disorder, and panic disorder is granted. ____________________________________________ KELLI KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs