Citation Nr: 0004229 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 96-12 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a psychiatric disability, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jason R. Davitian, Associate Counsel INTRODUCTION The veteran served on active duty from January 1974 to January 1975. When this case was previously before the Board of Veterans' Appeals (BVA or Board) in July 1997 and September 1999, it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, for additional development. The case is now before the Board for final appellate consideration. FINDING OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's current psychiatric diagnoses have not been shown to be related to active service. 3. The veteran's claimed in-service stressor has not been verified. CONCLUSION OF LAW Service connection for a psychiatric disability, to include PTSD, is denied. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran maintains, in substance, that he incurred a psychiatric disability, possibly consisting of PTSD, while in the service. He states that he underwent a stressful in- service event when he was raped by a staff sergeant. As the veteran continues to suffer from a psychiatric disability, a favorable determination is requested. As a preliminary matter, the Board finds that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107 (West 1991). See, Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of the record are viewed in the light most favorable to that claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. The RO has obtained post-service medical records from VA, as well as from a number of private examiners and care-givers. The RO also obtained a favorable August 1994 determination from the Social Security Administration (SSA), along with the medical records on which it was based. A claimant with active service may be granted service connection for disease or disability when the evidence reflects that the disease or disability was either incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303, 3.304. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1999). The Board notes that a recent case from the United States Court of Appeals for Veterans Claims (Court), Cohen v. Brown, 10 Vet. App. 128 (1997) alters the analysis in connection with claims for service connection for PTSD. Significantly, the Court points out that the VA has 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. See 61 Fed. Reg. 52695- 52702 (1996). The Court took judicial notice of the effect of the shift in diagnostic criteria. The major effect is this: the criteria have change 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 v. Brown, 10 Vet. App. at 153 (Nebeker, Chief Judge, concurring by way of synopsis). If the evidence pertaining to a claim for service connection for PTSD does not show that a veteran was engaged in combat with the enemy or that the claimed stressors are related to such combat, there must be corroborative evidence of the claimed stressor. See 38 U.S.C.A. § 1154(b) (West 1991); Zarycki v. Brown, 6 Vet. App. 91, 98- 99 (1993). In February 1996, VA established special evidentiary procedures for PTSD claims based on personal assault. M21-1, Part III, para. 5.14(c). VA recognizes that assault is an extremely personal and sensitive issue and many incidents of personal assault are not officially reported. Therefore, additional development through alternative sources may be necessary to provide credible evidence of inservice stressors, even if military records contain no documentation that a personal assault occurred. Id. The evidence does not have to prove that the incident occurred. Secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. M21-1, Part III, para. 5.14(c)(8) and (9); See generally, Patton v. West, 12 Vet. App. 272 (1999). Based on a thorough review of the evidence, the Board finds that the preponderance of the evidence is against the veteran's claim for entitlement to service connection for a psychiatric disability, to include PTSD. Turning to an analysis of the veteran's claim for service connection for a psychiatric disability other than PTSD, the Board notes that the veteran's service medical records are negative for complaints, findings, symptoms, or diagnoses of any psychiatric disability. An August 1994 determination by the SSA provides that the veteran's primary diagnosis was affective disorder. This determination does not address the etiology of the veteran's affective disorder. The veteran's post-service medical records include VA and private hospital records and reports of evaluations, dated from the 1970's through the 1990's. These records provide a number of Axis I diagnoses other than PTSD: depressive disorder, major depression, schizoaffective disorder, schizophrenia, schizophrenia with suicidal ideation, and various diagnoses related to substance and alcohol abuse. However, none of these records provides any competent evidence, such as a medical opinion, showing a nexus or link between the veteran's current, non-PTSD Axis I diagnoses and his active service. Ideally, such an opinion would be based on a review of the record. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Similarly, there is no medical evidence of continuity of symptomatology of any non-PTSD psychiatric disabilities from the time of the veteran's separation from service to the present. Because of the lack of such competent evidence, the preponderance of the evidence is against entitlement to service connection for a psychiatric disability, other than PTSD. Turning to an analysis of the veteran's claim for service connection for PTSD, the Board notes that the veteran has thoroughly described his alleged stressors in numerous pieces of correspondence to VA. Accounts of his reported stressors are also well documented in various private and VA medical reports. The veteran claims that he was raped repeatedly as a civilian teenager prior to active service. As his family was aware of the assaults but failed to stop them, the veteran joined the military to escape the situation. He has said that while in the military, he was raped either once or twice. In correspondence from the veteran received in July 1995, he stated that he was raped by a staff sergeant. He provided his unit at the time of the alleged in-service rape, and stated that it took place in Bad Krusununt in West Germany, on December 1, 1974. The veteran also asserted that his entire family knew of his rape and could so testify, and that police reports were filed in 1972, 1973 and 1978. The veteran reported that pre-service police reports were filed in Mt. Clemens, Michigan in 1972 and 1973, where the veteran said his assailant lived. The veteran provided the name of the alleged assailant who lived in Mt. Clemens, Michigan. The Board notes that it is not bound to accept the veteran's uncorroborated account of his experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991); recons., 1 Vet. App. 406 (1991); Swann v. Brown, 5 Vet. App. 229 (1993). The question of whether a specific event reported by a veteran as a stressor was a stressor is a question of fact for the Board to decide, involving, as it does, factors as much historical as psychological. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the Board finds that a stressor related to the veteran's military experiences has not been sufficiently objectively documented. First, the veteran's service medical records are negative for complaints, findings, symptoms, or diagnoses related to the claimed traumatic event in service. The veteran's service personnel records indicate that he was stationed in West Germany from June 12, 1964, to December 27, 1974. They are otherwise negative for evidence pertaining to the claimed traumatic event in service. Second, the veteran's own testimony fails to confirm that a stressor occurred, or to even indicate additional avenues of development. Although the veteran asserted that his family knew of a rape incident, he has failed to provide any statements from them asserting that he had contemporaneously reported an in-service rape to them. In addition, the Mt. Clemens, Michigan, police report referred to by the veteran apparently pertained to pre-service assaults. Similarly, the alleged assailant in Mt. Clemens, Michigan, referred to by the veteran was apparently involved with the pre-service assaults. At any rate, the Board points out that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the absence of a verifiable in-service stressor, the Board concludes that the veteran has failed to satisfy the criteria for service connection for PTSD. Although the veteran has described what he refers to as a stressful event during active service, there is no objective verification of these events, such as corroborating lay statements from fellow veterans, contemporary letters home written by the veteran, or service personnel records. In the absence of such verification, the veteran's claim for service connection cannot be granted, regardless of current treatment assessments of PTSD. In this respect, the Board notes that some private and VA medical records diagnose the veteran with PTSD, related in whole or in part to an-service rape or molestation. For example, a July 1995 VA hospital record recounts a history of repeated sexual abuse prior to active duty and then again during active duty, and provides a pertinent Axis I diagnosis of PTSD, status post-rape. Medical records from a January 1996 hospitalization at the Harbor Oaks Hospital provide a diagnosis of PTSD. The veteran reported sexual abuse as a child and one incident of molestation while in the Army. Medical records from a January 1997 hospitalization at the William Beaumont Hospital provide a pertinent discharge diagnosis of PTSD. The veteran reported sexual abuse from the ages of 9 to 16, followed by two rapes while in the military. However, these diagnostic references to an in-service incident of rape are based solely on a history provided by the veteran. As a result, these medical records are not probative or material to the issue of confirmation or verification of stressors. See Reonal v. Brown, 5 Vet. App. 458, 460-461 (1993); Elkins v. Brown, 5 Vet. App. 474 (1993). The Board also notes that the evidence of record includes a diagnosis of PTSD related to pre-service stressors. A VA discharge summary report of a February 1994 VA hospitalization provides a pertinent Axis I diagnosis of PTSD, related to childhood sexual trauma. Finally, the Board recognizes that the veteran has made his own contentions that he has PTSD as a result of being raped while on active duty. While the veteran is competent to describe his observations as to events he experienced, as a layperson, he is not competent to provide an opinion requiring medical knowledge, such as a medical diagnosis or etiology. Espiritu, 2 Vet. App. at 492. Accordingly, his testimony does not constitute competent medical evidence that he has PTSD, due to an in-service rape. In light of the above, the Board finds that the preponderance of the evidence is against the veteran's claim for entitlement to service connection for a psychiatric disability, to include PTSD. ORDER Service connection for a psychiatric disability, to include PTSD, is denied. U. R. POWELL Member, Board of Veterans' Appeals