Citation Nr: 0002132 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 94-10 699 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Associate Counsel INTRODUCTION The veteran served on active duty from April 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1992 rating decision by the Philadelphia, Pennsylvania RO. In April 1996, a hearing was held at the Philadelphia, Pennsylvania RO before C.W. Symanski, who is the member of the Board rendering the final determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). This case was before the Board in July 1996 when it was remanded for additional development. FINDING OF FACT The veteran did not engage in combat, and the occurrence of claimed inservice stressors, which might lead to PTSD, is not established by credible supporting evidence. CONCLUSION OF LAW PTSD was not incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran served on active duty in the United States Navy from April 1969 to June 1971. No complaints or findings of PTSD were noted on a January 1969 pre-enlistment examination. The veteran was found to be physically and mentally qualified for enlistment. Service medical records reflect that the veteran was treated on various occasions; no complaints or findings were recorded with respect to PTSD. November 1970 service medical records note the veteran's complaints of depression and anxiety for several months and occasional nightmares. The veteran reported that there were no specific precipitating circumstances. He expressed concerns about not getting along well with his colleagues and petty officers. He also expressed concerns about low quarterly numbers. He indicated that he was not suicidal. He further indicated that he did not wish to be discharged from the Navy. Impression included adjustment reaction and anxiety. A January 1971 service medical record notes the veteran's concerns about not getting along well with others on the ship. The veteran indicated that he had very few friends. He stated that he could not tolerate harassment; he stated that he performed his work satisfactorily but his supervisors said that he lacked initiative and did not work well. Diagnosis was passive-aggressive disorder, EPTE. During a May 1971 psychiatric examination, the veteran indicated that he wanted to get out of the Navy. He complained that he could not get along well with the Navy, had never been satisfied with his job, and wanted to return to civilian life. He indicated that he had been involved in a car accident and did not make enough money as an E-2 to make his payments. The veteran stated that he had difficulty taking orders and dealing with the harassment he encountered in the Navy. The veteran complained of feeling depressed, but reported no suicidal or homicidal ideation. He reported a history of "continuing turmoil" prior to service. For example, the veteran reported that he was arrested for stealing at age thirteen and placed in a "home" for two months. Thereafter, he saw a psychiatrist for eight or nine months. He also reported that he ran away from home four or five times. Diagnosis was immature personality, rule out emotionally unstable personality. It was recommended that the veteran receive an administrative discharge. On examination for separation from service in June 1971, diagnosis was immature personality. The veteran's DD-214 indicates that his military occupational specialty was that of a deck engineer. His awards and decorations include National Defense Service Medal and Navy Meritorious Unit Commendation. Service personnel records note that the veteran received: non-judicial punishment in May 1970 for an unauthorized absence of one day; non-judicial punishment in November 1970 for an unauthorized absence of one hour and for being out of uniform; non-judicial punishment in January 1971 for an unauthorized absence of two days; non-judicial punishment in January 1971 for an unauthorized absence; and a special court martial in May 1971 for an unauthorized absence of twenty-four days. In April 1992, the veteran filed a claim for service connection for PTSD. During a VA special PTSD examination in June 1992, the veteran reported being raped within the last eight months of his military service. The veteran stated that "six or seven" guys attacked him in the engine room of the ship. He could not recall their names; he could recall some of their ranks but could not identify any of the alleged attackers. The veteran reported that following the alleged incident, he saw a psychiatrist but did not mention any details of the attack. He also reported that he told a fellow crewman (described as a young black man) of the rape, but was unable to remember that crewman's name. The veteran reported that, following service, he was in and out of jail until 1978. He also reported a history of drug and alcohol abuse. Upon mental status examination, the veteran was not suicidal or homicidal. Insight and judgment were fair. The veteran reported occasional flashbacks to the alleged incident, but was unable to see any faces. The veteran also reported irritability, difficulty sleeping, outbursts of anger, difficulty concentrating, hypervigilance, and panic attacks. Diagnosis was PTSD related to a homosexual rape the veteran alleges occurred during the time he was in the Navy. In a statement received by the RO in August 1992, the veteran stated that he was raped in the engine room of the U.S.S. Mullinax by "half a dozen or more of the sailors in [his] division." He further stated that his "mind has completely blanked out names and even faces," but included in the attackers were "the 1st Class PO, a couple of 2nd Class POs[,] some 3rd Class POs and Firemen." The veteran stated that he lived in fear until the ship made port, and then immediately went AWOL. He indicated that he was found after twenty days and sent back to the ship. In a statement received by the RO in April 1993, the veteran stated that he was attacked in the engine room by "6, 7, or 8 guys." He indicated that he is unable to remember their faces, seeing them only as "dark ghosts." Following the alleged attack, the veteran indicated that he went AWOL, and started "smoking, drinking, doing drugs, and getting into trouble." During an April 1996 Travel Board hearing, the veteran testified that he could not remember any of the names of the men who allegedly attacked him during service. He stated that he saw a psychiatrist after the alleged incident, but did not reveal any details about being attacked. The veteran further stated that he did not tell anybody in his family about the alleged attack. In addition, the veteran testified that he sought treatment at the Rochester, New York, VA Medical Center (VAMC) between November 1971 and February 1972, and received therapy from MHMR, or the Harrisburg Institute of Psychiatry, in 1992. After reviewing the aforementioned evidence, the Board remanded the case to the RO for additional development. Specifically, the Board instructed the RO to obtain copies of treatment records from: the Rochester VAMC during the period November 1971 to February 1972; MHMR, or the Harrisburg Institute of Psychiatry, during 1992; and Dr. Leonti Thompson, during the period prior to February 1979. The RO was also instructed to request a copy of the Social Security Administration's decision with respect to the veteran's claim for disability benefits together with copies of all medical records considered in arriving at that decision. Treatment records from the Harrisburg Institute of Psychiatry dated in 1992 were received by the RO in November 1996. A psychiatric evaluation dated in May 1992 notes that the veteran was seen with complaints of increased irritability. He stated that since 1975 he has had more difficulty getting along with people. The veteran also complained of depression and difficulty sleeping. The veteran reported a history of being physically abused by his stepfather, being raped by a stranger at the age of five, and being raped while in the Navy. The veteran also reported a history of drug and alcohol abuse. The examiner noted that the veteran was "seen to be a fairly unreliable historian." Examination revealed psychomotor retardation and flat apathetic affect. The veteran denied flashbacks, nightmares, hallucinations, obsessions, compulsions, panic attacks, and phobias; he admitted mild paranoid ideation. Insight and judgment were poor. Diagnoses included: history of polysubstance abuse; rule out organic personality syndrome; rule out organic affective disorder. A psychological evaluation dated in June 1992 revealed no evidence of organic brain impairment. A June 1992 discharge summary notes the veteran's history of being physically abused by his step-father while growing up, being raped at the age of five by a stranger, and being raped while in the Navy by several men. The veteran also reported that he stole a gun from his stepfather's house at the age of thirteen. He fired the gun at a small airplane, cause the plane to crash. Discharge diagnoses included rule out major depression and history of polysubstance abuse. The evidence of record shows that the RO requested treatment records from the Rochester VAMC on several occasions. In a March 1997 response, it was noted that no treatment records were located at the Rochester VAMC. In addition, it was noted that no treatment records were located at the Buffalo and Batavia VAMCs. The evidence of record reflects that the RO requested treatment records from Dr. Thompson on several occasions. No response was received. In addition, treatment records from Edgewater dated from 1993 to 1995 note that the veteran was seen on several occasions with various psychiatric complaints. No findings of PTSD were reported. No further details of the alleged rape during military service were reported. In a statement received by the RO in February 1997, the veteran indicated that the alleged rape occurred between fall 1970 and June 1971, during his ship's return from the Mediterranean. He stated that he was "attacked by five or six Firemen and 3rd Class Petty Officers while the 1st and 2nd Class Petty Officers gave orders and comments to facilitate the assault." He further stated that he saw a psychiatrist shortly after his return to Norfolk, but "couldn't allow [himself] enough strength" to report the details of the incident. He indicated that he only reported that he had been harassed and picked on. The RO also obtained medical records relied upon by the Social Security Administration (SSA) in its 1992 decision in favor of the veteran. Records relied upon by SSA-including treatment records from Harrisburg Institute-are essentially duplicative of evidence previously received and considered by the RO. These records are negative for complaints or findings of PTSD. SSA rated the veteran as disabled, with antisocial personality noted as his primary disability and substance abuse noted as his secondary disability. The other evidence of record includes statements from the veteran's mother, stepsister and friends. These statements all note that the veteran got into trouble, such as stealing his mother's car and abusing drugs and alcohol, following the alleged rape during service. Analysis The veteran contends that the RO erred by failing to grant service connection for PTSD. The veteran has alleged on various occasions that he has trouble sleeping and has recurrent and intrusive recollections of having been sexually assaulted by fellow crewmembers during service. A claimant seeking benefits under a law administered by the Secretary of the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well-grounded claim; that is, a claim which is plausible. If he has not presented a well-grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In this regard, the veteran has submitted a plausible claim and it is further noted that it appears that all relevant evidence necessary to adjudicate the claim has been obtained. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. In order to establish service connection for PTSD, there must be medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter; 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. If the evidence establishes that the veteran was a prisoner-of-war under the provisions of Sec. 3.1(y) of this part and the claimed stressor is related to that prisoner-of- war experience, 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), as amended; see 64 Fed. Reg. 32807-08 (Jun. 18, 1999). If a veteran did not engage in combat, his own allegations are insufficient to establish a service stressor; rather, the stressor must be established by official service records or other credible supporting evidence. Doran v. Brown, 6 Vet. App 283 (1994); Zarycki v. Brown, 6 Vet. App. 91 (1993). Nevertheless, in the recent case of Patton v. West, 12 Vet. App. 272 (1999), the United States Court of Appeals for Veterans Claims (Court) emphasized that statements contained in prior decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'", of a claimed stressor and that "[a]n opinion by a mental health professional based on a postservice examination of the veteran cannot be used to establish the occurrence of the stressor," were made in the context of discussing PTSD diagnoses other than those arising from personal assault. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). With regard to personal assault cases, the Court pointed out that "VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." Id. citing Manual M21-1, Part III, 5.14c (8), (9). "To that extent, the above categorical statements . . . are not operative." Id. The provisions of VA Adjudication Procedure Manual, M21-1 cited by the Court in Patton, provide special evidentiary procedures for PTSD claims based on personal assault which were established in February 1996 in Manual M21-1, Part III, 5.14(c) (Feb. 20, 1996). The Court has held that these provisions are substantive rules that are the equivalent of VA regulations. See YR v. West, 11 Vet. App. 393 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). MANUAL M21-1, Part III, 5.14(c) subparagraph (8) provides that "[i]f the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an inservice stressful incident. Such documentation includes testimonial statements from confidants such as family members or clergy, as well as evidence of behavioral changes to include lay statements describing episodes of depression, panic attacks, or anxiety without identifiable reasons, evidence of substance abuse, changes in performance evaluations, increased disregard for military and civilian authority, obsessive behavior, and unexplained social behavior changes. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. The Court in Patton went on to note that the Manual improperly appeared to require that the existence of the in- service stressor be shown by a preponderance of evidence. Any such requirement would be inconsistent with the so called equipoise doctrine set forth in 38 U.S.C.A. § 5107(b) where the benefit of the doubt is given to the claimant unless the evidence preponderates against the claim. In the case at hand, it is clear that the veteran's claimed stressor is not related to combat, but is instead related to an alleged personal assault. In this regard the record reveals that a June 1992 VA examination report concludes that the veteran has PTSD as a result of rape in service. The primary impediment to service connection is the absence of a verified inservice stressor upon which PTSD was diagnosed. That is, there is no evidence of record to corroborate the veteran's alleged inservice stressor. It is pertinent to note that the veteran indicated that the exact date on which the stressor occurred was unknown. In addition, the veteran indicated that the names of the alleged attackers were unknown. The veteran stated that he did not tell anybody in his family about the alleged attack; he reported to a fellow crewman but is unable to remember the crewman's name. The Board is cognizant of the fact that, for claims based on personal assault, there are no restrictions on the type of evidence which may be considered. See Manual M21-1, Part III, 5.14(c) and Part VI, 7.46(c) (Feb. 20, 1996). Indeed, the Board remanded this case, in part, for the purpose of providing the veteran with an opportunity to submit supportive evidence. See Patton v. West, 12 Vet. App. 272 (1999). However, the veteran has failed to submit such evidence. In statements from the veteran's mother and stepsister, it was asserted that the veteran's PTSD was the result of a sexual assault during service. It was further noted that the veteran began to exhibit behavioral problems following service, such as criminal behavior and drug and alcohol abuse. However, the evidence of record notes that the veteran exhibited many of these behavioral problems prior to service. For example, service medical records note that the veteran was arrested for stealing at the age of thirteen and ran away from home four or five times as a child. Private treatment records note that the veteran stole a gun from his stepfather's house at the age of thirteen. He fired the gun at a small airplane. The Board finds that the statements of the veteran's mother and step-sister are not probative to establish or suggest that the veteran's behavior changed following the alleged attack in service, and do not otherwise tend to establish that stressor occurred during the veteran's service. Under these circumstances, the Board finds that the weight of the credible evidence is against a finding that the alleged stressor occurred during service. In the absence of such credible evidence of the alleged stressor, the claim for service connection for PTSD must be denied. 38 C.F.R. § 3.304(f). ORDER Entitlement to service connection for PTSD is denied. C. W. SYMANSKI Member, Board of Veterans' Appeals