Citation Nr: 0318614
Decision Date: 08/01/03 Archive Date: 08/13/03
DOCKET NO. 94-40 190 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M.C. Peltzer, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1968 to August
1970. His DD Form 214 reveals that he had no foreign and/or
sea service and was awarded a National Defense Service Medal.
This matter comes before the Board of Veterans' Appeals
(Board) from the St. Petersburg, Florida, Regional Office
(RO) of the Department of Veterans Affairs (VA). In January
1997, the Board issued a decision which found that new and
material evidence had been submitted to reopen the veteran's
claim for service connection for a mental disorder, claimed
as PTSD. This matter was remanded to the RO for further
development and consideration of the entire record in
accordance with Manio v. Derwinski, 1 Vet. App 145 (1991).
The veteran was afforded a hearing at the RO in December
1993.
FINDINGS OF FACT
1. All evidence requisite for an equitable disposition of
the veteran's claim has been developed and obtained, and all
due process concerns have been addressed.
2. The veteran did not engage in combat with the enemy.
3. The evidence of record does not corroborate or
substantiate the in-service stressor alleged by the veteran.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by the veteran's
period of active duty. 38 U.S.C.A. §§ 1110, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify and Assist
VA must notify the claimant of evidence and information
necessary to substantiate his claim and inform him whether he
or VA bears the burden of producing or obtaining that
evidence or information. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2002); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). The veteran was notified that VA would aid
him in obtaining evidence to substantiate his claim by making
reasonable efforts to obtain evidence sufficiently identified
by him from government agencies, employers, and all
healthcare providers via letter in December 2001. He was
further notified ultimate responsibility for the submission
of evidence remained with him. He was notified of the laws
and regulations regarding the principles of service
connection for PTSD via the January 1997 Board decision and
remand and via the reasons and bases portion of the September
2002 Supplemental Statement of the Case (SSOC). He was
notified by letter in January 2003 of the revised regulation
pertinent to service connection for PTSD vis-à-vis assault
claims. The Board finds that VA's duty to notify has been
satisfied.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d)
(2002). The veteran was afforded a VA examination in May
1989. See 38 C.F.R. § 3.159(c)(4) (2002). The resulting
report has been obtained. His service medical records, VA
medical records, and Social Security Administration (SSA)
records have been obtained. Additionally, private medical
records have been associated with his claims file. In the
September 2002 SSOC, the veteran was notified in accordance
with 38 C.F.R. § 3.159(e) (2002) of evidence that reasonable
efforts made by VA did not result in the receipt of said
evidence. He was afforded a hearing to offer testimony in
December 1993 and a transcript is of record. The veteran has
not identified evidence that VA has not made reasonable
efforts to attempt to obtain on his behalf and in February
2003 correspondence he indicated that he did not have
additional evidence to submit. Therefore, the Board
concludes that no further assistance to the veteran regarding
development of evidence is required, and would be otherwise
unproductive. See 38 U.S.C.A. § 5103A(b)(3) (West 2002);
McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997).
II. Service Connection Claim for PTSD
In the instant case, the veteran contends that he is entitled
to service connection for PTSD. After a complete and
thorough review of the evidence of record, the Board cannot
agree with his contention. As such, his claim must fail.
Legal Criteria
Service connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by active
duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303
(2002). In addition, service connection may be granted for
any disease diagnosed after discharge, when the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(2002). The Board must determine whether the evidence
supports the claim or is in relative equipoise, with the
claimant prevailing in either case, or whether the
preponderance of the evidence is against the claim, in which
case the claim must be denied. Gilbert v. Derwinski, 1 Vet.
App. 49, 55 (1990).
Service connection for PTSD requires: 1) medical evidence
diagnosing PTSD; 2) credible supporting evidence that the
claimed in-service stressor actually occurred; and 3) a link,
established by medical evidence, between current symptoms and
an in-service stressor. 38 C.F.R. § 3.304(f) (2002). 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)(2002).
If the evidence establishes that the veteran engaged in
combat with the enemy, and the claimed stressor is related to
that combat, the veteran's lay statements alone may establish
occurrence of the claim in-service stressor, in the absence
of clear and convincing evidence to the contrary and provided
that the claimed stressor is consistent with the
circumstances, conditions, or hardship of the veteran's
service. 38 C.F.R. § 3.304(f) (2002). The ordinary meaning
of the phrase "engaged in combat with the enemy" requires
that the veteran has taken part in a fight or encounter with
a military foe or hostile unit or instrumentality. See
VAOPGCPREC 12-99, 65 Fed. Reg. 6256-6258 (2000).
In the instant case, the veteran's DD Form 214 reflects that
his did not have any foreign or sea service. Nor does the
veteran contend that his alleged stressor occurred while he
engaged with combat with the enemy. As such, the Board finds
that the veteran did not engage in combat with the enemy.
Once it has been determined that a veteran was not engaged in
combat, the veteran's lay testimony, by itself, will not be
enough to establish the occurrence of the alleged stress.
Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Instead, the
record must contain service records or other corroborative
evidence that substantiates or verifies the veteran's
testimony as to the occurrence of the claimed stressor. Id;
see also Doran v. Brown, 6 Vet. App. 283, 290 (1994); West v.
Brown, 7 Vet. App. 70, 76 (1994); VA ADJUDICATION PROCEDIRE
MANUAL, M21-1, Part VI, 11.38.b(3) (Change 65, October 28,
1998). The absence of corroboration in the service records,
when there is nothing in the available records that is
inconsistent with other evidence does not relieve the Board
of its obligations to assess the credibility and probative
value of the other evidence. Doran v. Brown, 6 Vet.
App. 283, 290-291 (1994).
In the instant case, the evidence of record reflects that the
veteran alleges that in August 1970, two weeks before he was
discharged from active duty, he was assaulted while on
weekend liberty. The December 1993 hearing transcript
reveals that the veteran testified that while he was out
drinking at a bar, a man followed him from the bathroom and
approached him at the bar to begin a conversation with him.
The veteran indicated that because he was "ossified" that
night he did not remember the entire evening. He did
remember that he woke up the next day in the man's apartment
and the individual drove him back to the base. The
transcript reflects that the veteran indicated that he did
not tell anyone of the rape at that time. The veteran
further indicated in April 1997 correspondence that he met an
acquaintance while he was on weekend liberty in August 1970
and was invited to spend the night at the person's place.
The veteran further indicated that he was offered a beverage
that he drank and then became groggy and passed out. The
veteran indicated that when he awoke, the man was looking at
a pornographic magazine and then performed "oral sex" on
the veteran. The veteran indicated that he passed out again
and this pattern of waking up and passing out continued
through the night. He further stated that the next morning
he woke up, went back to the base, had a painful penis, and
did not tell anyone what had transpired the night in
question. In January 2002 correspondence, the veteran
indicated that he did not file charges or seek professional
help at the time of the alleged 1970 assault as he was very
embarrassed by the incident and only had two weeks remaining
in the service and just wanted to return home.
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. 38 C.F.R. § 3.304(f)(3) (2002).
Here, correspondence and evidence from numerous sources have
been associated with the veteran's claims folder in an
attempt to verify his alleged stressor. A November 1978 VA
examination report reflects that the veteran had a history of
heavy drinking.
A March 1989 private medical associated examination report
reflects that the veteran's psychiatric history began in
1976. The letter chronicles that in 1976, the veteran was
trying to hold onto his wife and his job (but there had been
a "union fight"). The letter further indicates that in
1976 the veteran was in the process of buying a house, was
involved in a bad marriage, had a son, and was worried about
a friend who might be harmed in the context of the union
fight. After initially seeking treatment, the veteran quit
his job and got divorced. The letter further reflects that
the veteran indicated that he had been miserable at that
point in his life. The letter also indicates that the
veteran indicated that he had been arrested three times for
driving while intoxicated and driving without a license, and
he indicated he had begun drinking at the age of 18.
A May 1989 VA examination report reflects that the veteran
complained of a high anxiety level, which made it very
difficult for him to hold a job or deal with stressful
situations, since March of 1976.
The December 1993 hearing transcript reflects that the
veteran testified that after he was released from service he
was fairly successful in operating a chain of shoe stores and
during this period of time he got married and started a
family. He further testified that in March of 1976 he had a
mental breakdown. A lay statement from a friend of the
veteran's since childhood was received and made a part of the
evidence at the time of the December 1993 hearing. Dated in
October 1992, the lay statement reflects that the friend
indicated that after many conversations with the veteran in
1976, the veteran told him about being brutally raped by a
male person two weeks before his discharge from active duty.
Two lay statements from brothers of the veteran were also
submitted at the December 1993 hearing. The statement dated
on October 3, 1992, reflects that the one brother indicated
that the veteran had told him about his rape about 10 to 15
years before and that he had not really wanted to hear about
it but the veteran persisted as it was something that still
bothered him. The statement dated on October 18, 1992,
reflects that another brother of the veteran indicated that
the veteran informed him and their father of the in-service
rape incident.
A letter dated in December 1993 from Planned Parenthood
Health Services reflects that the veteran had contacted their
hotline in early 1993 for information concerning Planned
Parenthood services and later took advantage of several
telephone and in-person counseling sessions. The letter
reflects that the veteran expressed concern over an incident
he experienced while in service.
A June 1996 letter from the Caleo Center reflects that the
veteran was first seen at the center in November of 1994.
The letter indicates that the veteran first began
experiencing symptoms of PTSD in 1976 when he recovered
memories of a sexual assault that happened in 1970 while he
was on active duty.
In May 1999, private medical records from Suffolk County
Health Services were received and associated with the
veteran's claims folder. An October 1979 session note
reflects that the veteran explained that during 1976 many
things happened to him which caused a lot of stress, such as
he was divorced, had an attack of gout, and quit his job of
many years. In November 1999, a letter from a community
mental health center was received and associated with the
claims folder. The letter, dated in October 1993, indicated
that the veteran was treated for reported difficulties in
interpersonal situations and had a history of alcohol abuse.
The letter also indicated that his primary complaints
remained focused on interpersonal anxiety but did
additionally report a sexual assault experience while he was
in the service.
Also received in May 1999 and associated with his claims
folder were the veteran's SSA records. His SSA records
reveal that he receives SSA benefits for severe anxiety and
treatment for agoraphobia.
Based on the above evidence, the Board finds that no
corroborative evidence substantiates or verifies the stressor
alleged by the veteran. Even with a most sympathetic review,
a claim of entitlement to service connection must be decided
based on the evidence of record. In the instant case, the
veteran's service medical records do not reflect any
treatment for an assault but the Board is cognizant that
veteran indicated that he was embarrassed after the alleged
incident and did not report it to anyone. In addition to his
service records, other sources of evidence can be used to
corroborate an in-service assault. See 38 C.F.R.
§ 3.304(f)(3) (2002). The veteran alleges that he was
assaulted in August of 1970 but the evidence of record
reflects that for the next six years he was successfully
employed, got married and started a family. The first
evidence of mental health treatment was in 1976 and the
evidence of record from this period of time reflects that he
was under a lot of stress and personal anxiety due to such
things as the failure of his marriage (which led to divorce),
union problems at his place of employment, he eventually quit
his job, and he had an attack of gout. The evidence from the
1970's does not mention the veteran's alleged rape.
In comparison, lay statements from a childhood friend and two
of the veteran's brothers indicate that the veteran informed
them of his alleged August 1970 assault in 1976. But the
statements by lay persons of record merely transcribed the
veteran's account of the alleged incident and do not contain
any eyewitness accounts of a change in the veteran's behavior
around August 1970 and as such hold little probative value in
verifying the alleged stressor. See Layno v. Brown, 6 Vet.
App. 465 (1994); see also Caluza v. Brown, 6 Vet. App. 465,
512 (1995) (Contemporaneous lay statements may be more
probative than statements made many years later).
Furthermore, the medical evidence of record that recounts the
veteran's alleged rape is of recent origin. The evidence
from Planned Parenthood Health Services, Caleo Center, and a
community mental health center, all from the 1990s, reference
the veteran's complaints of an alleged in-service assault but
the veteran, as reflected in an October 1979 session note
from Suffolk County Health Services, did not include an
alleged in-service rape when seeking treatment in the 1970s.
When the evidence of record is reviewed as a whole, the Board
finds the lack of treatment for six years following the
alleged assault and then only evidence of mental health
treatment for stressors not related to the veteran's period
of active duty to be more probative than the medical evidence
of record which originated around the time of the veteran's
claim for service connection. See Struck v. Brown, 9 Vet.
App. Vet. App. 145, 155-156 (1996).
The Board notes that the evidence of record indicates that
the veteran had a problems with drinking. But the evidence
of record also reflects that the veteran had first begun
drinking at the age of 18, before the alleged rape, and as
such is not a change in behavior as anticipated by 38 C.F.R.
§ 3.304(f)(3) (2002).
In short, the Board finds that the preponderance of the
evidence does not corroborate or substantiate his alleged in-
service rape. As verification of an in-service stressor is
required for entitlement to service connection for PTSD, the
Board must find that service connection is not warranted.
38 C.F.R. § 3.304(f) (2002). The Board has considered the
doctrine of reasonable doubt in the veteran's favor, but, as
the preponderance of the evidence is against his service
connection claim, that doctrine is not for application.
38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2002).
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for PTSD is denied.
____________________________________________
C.P. RUSSELL
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.