ptsd Establishing Service Connection

[mrkman12]

Establishing Service Connection For Veterans Affairs Disability Compensation

Before November 2000, when the VCAA was enacted,

veterans had to obtain a medical diagnosis of a current disability on

their own. The VA was not generally obligated to help them in obtaining

this medical evidence. Some veterans, who could not afford a private

doctor, were placed in a no win situation. They could not receive

disability compensation until they submitted a medical diagnosis of their

current disability; they could not get the VA to provide them with a free

medical examination to obtain this diagnosis because veterans who already

had service-connected disabilities were more likely to receive free VA

medical care; and they could not obtain a medical diagnosis from a private

doctor because they could not afford to pay for the private doctor. As

a result of the VCAA, most veterans who file an original claim for

disability compensation do not need to obtain a medical diagnosis on their

own. The VA is generally obligated to provide veterans with a VA medical

examination to diagnose the current medical condition. There are only a

few legitimate reasons for which VA may refuse to schedule a VA medical

examination." Veterans Benefits Manual 2007 and a medical

nexus connecting 1 and 2. An in-service injury/disease

means that for the most part it must be documented in the veteran’s

service medical records (SMR’s). One thing to keep in mind is that,

generally, the in-service injury/disease must be shown to be “chronic”

while in-service. If it is not shown to be a “chronic” condition while

in-service, then you’ll more than likely need an Independent Medical

Opinion (IMO) to substantiate the claim. If a veteran doesn’t have either

a documented “chronic” condition, or an IMO, the VA will more than likely

state that the claimed condition is “Acute and Transitory,” meaning that

the injury/disease resolved itself and there is no residuals. A

current condition with a medical diagnosis means that the claimed

condition has to show current residuals from that in-service-injury, and

it must have a current diagnosis from a physician.. A lot of times the

diagnosis can and will be obtained from the VA C&P exam. If the VA

sees that your condition was “chronic” while in the service, or that you

have medical documentation of continuity of treatment since discharge,

more often than not they will schedule the veteran for a C&P exam to

obtain the needed diagnosis and current disabling affects of the claimed

disability. Something connecting the two means either continuity of

treatment of the claimed disability from time of discharge to the present,

or, if this is not the case, then an IMO will be needed from a physician.

A lot of times an IMO is a critical part of the veterans claim. An IMO can

sway the benefit of the doubt in the veteran’s favor if the claim is

borderline, or it can flat out prove service-connection when one of the

three components of establishing service-connection aren’t met! For

example, by borderline I mean let’s say that a veteran was seen for lower

back pain once while on active duty over a period of a five year

enlistment. And now it is ten years since his discharge and the veteran

hasn’t been seen for the lower back until recently, or only had one

episode of back pain within those ten years since getting out of the

military. The veteran will need an IMO stating something to the affect

that his current lower back condition is some how related to the episode

while on active duty. If the RVSR (Rating Veteran Service Representative,

or “Rating Specialist”) is very liberal in applying the regulation, he/she

may award service-connection without the IMO. However, if the RVSR is “by

the book,” then he/she may deny service-connection in the absence of a

good IMO. An example of where an IMO can establish service-connection

with which one or more of the three criteria listed above are absent would be,

let’s say that a veteran was seen one time for a knee condition while on

active duty and this incident is noted in his SMR’s. Ten years later the

veteran is experiencing pain in that same knee but didn’t have any type of

treatment since his discharge, he would need a really good IMO to

establish that his current disability is somehow related to the in-service

episode. As far as presumptive service-connection is

concerned, a veteran needs to be able to show that a condition listed in

§3.307, §3.308, and §3.309 has manifested itself within the prescribed

time limits after separation from the service. A presumptive condition

does not need to be noted in a veteran’s SMR’s, hence presumptive, or it’s

presumed that the said disability/disease occurred while in the service.

There are some presumptive disabilities that do need to have manifested

themselves within the first year after separation and to degree of 10%

disabling in order to warrant presumptive service-connection. One common

one is Arthritis. Filing the claim: Once you have

determined that you have met three basic criteria of disability

compensation, you should then file the claim with your local Regional

Office. There are two types of claims for initial service-connection; an

Informal claim and a Formal claim. An Informal claim is some type of

communication to your local regional office in which you state you intend

to apply for disability compensation. This communication can be a written

letter, or fax, a telephone call or even an email. The best way, however,

is something in writing. When a claimant makes an informal claim with VA,

they need to clearly identify the disability for which they intend to

apply for, give the VA your SSN and dates and branch of service, and make

sure you send it via certified mail with return receipt! After you have

sent your informal claim to VA, you have up to one year to send the VA

your Formal Claim. In this one year period, I would recommend that you get

together all of your medical records and so forth that will support your

claim. If you send the VA your formal claim within the one year time

period of the informal claim and VA grants your claim, the effective date,

or the day you start to receive disability compensation, is the date of

your informal claim. This could mean a lot of money in

retro! A Formal Claim for disability compensation is the VA

Form 21-526. You should fill this out to the best of your ability. You

should attach any Service Medical Records, Private Treatment records

relevant to your claimed disability(ies), certified copy of your DD 214,

copies of marriage certificates divorce decrees and dependent birth

certificates. By attaching these documents, you’ll speed up the processing

of your claim quite a bit. However, you do not need to attach those

documents if you do not have them in your possession. If you do not have

any of those medical records, the VA will assist you in obtaining those by

asking you to fill out VA Form 21-4142 for each facility were those

records are located. One important side note; make sure you sign the VA

Form 21-526! Important: You do not need to submit an Informal

claim. You can file VA form 21-526 without informing VA of your intention

to file for disability compensation. What happens after I file

my Formal claim? After you send VA your Formal claim, there are

a number of “teams” at your local regional office that process your

application. There are essentially six "teams" at a Regional office

that make up the "process." When a veteran files a claim for benefits with

VA, it is received at what is called a 'Triage Team.' This is where the

incoming mail is sorted and routed to the different sections or other

"teams" to be worked. Picture this as a Triage unit at a Hospital. There

they decide who goes where according to the injury/condition involved.

This is the way it works at VA too. The main function of the Triage Team

is to screen all incoming mail. Within the Triage Team there are other sub

components; the Mail Control Point, Mail Processing Point, and to a

certain extent supervision of the files activity. The mail control point

is staffed with VSR (Veteran Service Representatives) who are actually

trained in claims processing. This is also where they receive and answer

the IRIS inquiries. The mail processing point is where chapter 29/30

claims (a bit later on theses types of claims) are processed/awarded, and

to a certain extent dependency issues are resolved. The next step

is the "Pre-Determination Team." This is where your claim for benefits is

sent to be developed, meaning verification of service from the Service

Department if a certified copy of the DD 214 is not submitted by the

veteran, SMR's are obtained from St. Louis if they weren’t sent in already

by the veteran, any CURR verifications are done for PTSD stressors, any

private treatment records are obtained under the "Duty to Assist," and

inferred issued are identified. Once the Pre-Determination Team figures

out what you’re claiming, they’ll send you what’s known as a “Duty to

Assist” letter. This letter states what type of claim you are filing, what

conditions you are claiming, and what the regulations say you must show to

have your claim granted. It will also state the evidence needed by VA to

support your claim, and what VA is doing or has done. The letter will also

explain VA's “Duty to Assist” you in obtaining the evidence to support

your claim. There will also be a response form that you should fill out

and return. If you do not return this form or mark the box that you have

additional evidence to submit, the VA must wait 60 days to further process

your claim. As your claim progresses further though the Pre-Determination

Team, you may or may not receive other letters. Examples of those letters

include: follow-up letters to let you know VA requested something from a

third party and there is a delay in their reply, letters requesting that

you provide something to VA to support your claim. The Pre-Determination

Team may also send you a computer generated letter telling you they are

still working on your claim. That letter is pretty interesting because it

means a couple of things have happened with your claim; 1) your claim was

reviewed by someone recently or 2) your claim has aged where the computer

system is telling the regional office that they must look at your claim.

One thing to keep in mind is that every time VA sends you a letter,

regardless if it’s for information you already sent them, you should

always respond with a letter via certified Mail with return receipt. If

you already sent something to VA that they previously requested, just send

them a letter stating that you already submitted the information and when

you sent it. Once all the developmental work has been done on a claim, it

is then designated as "Ready to Rate" and sent to the Rating

Activity. The Rating Activity or “Rating Board” is where most

veterans want to have their claim. This is where the claim for benefits is

decided. The RVSR (Rating Veteran Service Representative, or “Rating

Specialist”) is the person who rates a veteran's claim. They review the

entire C-file to insure it is ready to be rated, and schedule any C&P

exams that may be needed if not already done so by the Pre-Determination

Team. If a C&P exam is needed they go ahead and do the paperwork to

schedule this. Once the RVSR has all the needed paperwork to rate the

claim, they make their decision. If the RVSR determines that there is

something missing from the claim to make a decision, they send the claim

back to the Pre-Determination Team for further development. Once they have

reached their determination, they produce a rating decision with their

decision and forward the C-file to the Post-Determination Team. The

Post-Determination Team is where the rating decision is promulgated. In

other words, it is where the decision gets entered into the system and the

rating decision is prepared and sent out to the veteran. If the veteran

has a Power of Attorney (POA), they give a heads up to them as to what the

decision was. If a claim has been granted and the retro involves over

$25,000.00, it is sent to the VSCM (Veterans Service Center Manager) or

their assistant for a third signature. The Post Determination Team also

does the following action; accrued benefits claims not requiring a rating,

apportionment decisions, competency issues not requiring a rating,

original pension claims not requiring a rating, dependency issues,

burials, death pension, and specially adapted housing and initial CHAMPVA

eligibility determinations when a pertinent rating is already of

record. The Appeals Team handles appeals in which the veteran has

elected the DRO review. They also handle any remands that have been sent

back from the BVA and the Court. The Appeal Team is a self containing unit

within the Regional office. They make determinations on appeal, make

rating decisions that are on appeal, do any developmental work on any

issue that may be on appeal, and issue any SOC's and SSOC's in conjunction

with their review. The Public Contact Team’s primary functions are

to conduct personal interviews with, and answer telephone calls from

veterans and beneficiaries seeking information regarding benefits and

claims. In some regional offices, depending on their workload, also

handles IRIS inquiries and fiduciary issues. As one can see the VA

claims process can be complex. In essence a veteran’s claim is

continuously going from one team to another until it has been decided.

This process can be rather lengthy depending on what regional office has

jurisdiction over your claim and their pending workload. During this

process a veteran may want to find out the status of their claim. This

should be done through the VA’s IRIS website inquiry system. Through this

inquiry system, the veteran will get much more accurate information then

by calling the 1-800 number. The 1-800 will only connect you to the

regional offices “Public Contact team.” These employees aren’t really

trained to deal with the different processing stages and so forth and

aren’t able to give very accurate information in that regard. The

intention of the 1-800 number and the Public Contact team is really to

give general benefits information and send out forms to claimants, not to

try and track a veterans claim. Furthermore, veterans’ claims aren’t like

tracking a UPS package where it travels in a straight line to its end

destination. Veterans’ claims will end up bouncing from team to team at

the regional office until all of the work required to make a decision is

done.

[Pete53]

I reread and rather than edit I will admit that I got claim and appeal mixed up. Informal notice to VARO that you plan to file a claim is what ALex used and it usually meant a few extra months of retro if it was followed up on.

[mrkman12]

I reread and rather than edit I will admit that I got claim and appeal mixed up. Informal notice to VARO that you plan to file a claim is what ALex used and it usually meant a few extra months of retro if it was followed up on.

pete, I drafted this to assist my VSO on the matter of my claim. Do you think this helps clarify the issues? mark

citation Nr:

Decision Date: Archive Date:

DOCKET NO. ) DATE

)

)

On appeal from the Department of veterans Affairs Regional office

Center in Houston Texas

THE ISSUE

Entitlement to service connection for post-traumatic stress

disorder (PTSD).

REPRESENTATION

Appellant represented by: TEXAS VETERANS COMMISSION.

WITNESS AT HEARINGS ON APPEAL

The Veteran-Appellant

ATTORNEY FOR THE BOARD

counsel

INTRODUCTION

The veteran (also referred to as "appellant" or "claimant")

served on active duty from November 1974 to March 1992.

This matter comes before the Board of veterans' Appeals

(Board) on appeal from a rating decision issued in August

1992 by the Department of veterans Affairs (VA) Medical and

Regional office Center (RO) in Houston, Texas, which denied

service connection for PTSD. The veteran entered new and

material evidence to reopen this claim, September, 2007.

page 1

Findings OF FACT

1. All evidence necessary to decide the issue on appeal is

of record.

2. The veteran did not engage in combat with the enemy.

3. The record includes a medical diagnosis of PTSD,

competent evidence which supports the veteran's assertion of

in-service incurrence of the stressful events of a personal

assault, and near fatal electrocution. medical evidence of a

nexus between diagnosed PTsD and the stressful events of

personal assault, and near fatal electrocution in service.

CONCLUSION OF LAW

The board will find with the resolution of reasonable doubt

in the veteran's favor, PTsD was incurred in service.

38 U.s.C.A. §§ 1110, 1131, 5103, 5103A, 5107

(west 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.303,

3.304(f), 4.125(a) (2001); 66 Fed. Reg. 45,630-32

(Aug. 29, 2001) (to be codified as amended

at 38 C.F.R. § 3.159).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans claims Assistance Act of 2000, Pub. L. NO. 106-

475, 114 Stat. 2096 (2000), now requires VA to assist a

claimant in developing all facts pertinent to a claim for VA

benefits, including a medical opinion and notice to the

claimant and the claimant's representative, if any, of any

information, and any medical or lay evidence, not previously

provided to the VA secretary, that is necessary to

substantiate the claim. VA has issued regulations to

implement the Veterans claims Assistance Act of 2000. 66

Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended .

at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)).

The Board will find that, in this appellant's case, the requirements

of the Veterans claims Assistance Act of 2000 and

implementing regulations have not been met. The appellant was

not afforded personal hearings at the RO and before the

undersigned acting member of the Board. In the rating

decision, statement of the case, and supplemental statements

of the case, the RO did not advised the appellant of what must be

demonstrated to establish service connection for PTSD. A

personal assault development questionnaire was not sent to assist

in developing the claim. See Patton v. west, 12 Vet. App.

bva compensation 272 (1999).

page 2

The Board will note, further notice or assistance to the

veteran is necessary in order to decide the claim for service

connection for PTSD currently on appeal; there is reasonable

possibility that further assistance in attempting

to obtain such verifying information or current examination

or medical opinion would aid in substantiating the claim.

38 U.S.C.A. §§ 5103, 5103A (west Supp. 2001). Accordingly,

further notice to the appellant or assistance in acquiring

additional evidence is required by the new statute and

regulations.

The veteran contends that he currently suffers from PTSD as a

direct result of a personal assault, by an unknown assailant on

March, 27 1991, and a near fatal electrocution, May 16, 1983.

During his active military service.

He specifica11y contends that he sought medica1 attention ten days

later and informed the medical provider that he had

no recollection of being assualted, yet complained of various other symptoms,

and did not mention of the personal assault.

The veteran contends that he did not tell his commanding officer of the assault,

but was told in essence by TM1 Thomas, (chief Master At Arms) "due to lack of

evidence or witnesses not to mention it again", so he did not tell anyone else about

the assault until after service.

The veteran further contends that his alcohol problems in service are a

manifestation of this assault, and a near fatal electrocution.

That he experienced other behavioral problems in service and soon after service.

service connection may be granted for a disability resulting

from disease or injury incurred in or aggravated by service.

38 U.S.C.A. §§ 1110, 1131, 38 C.F.R. § 3.303(a) (2001). FOr

the showing of chronic disease in service, there is required

a combinatlon of manifestations sufficient to identify the

disease entity, and sufficient observation to establish

chronicity at the time. 38 C.F.R. § 3.303( (2001).

If chronicity in service is not established, a showing of

continuity of symptoms after discharge is required to support

the claim. Id. service connection may also be granted for

any disease diagnosed after discharge when all of the

evidence establlshes that the disease was incurred in

service. 38 C.F.R. § 3.303(d) (2001).

Service connection for PTSD now requires: medical evidence

diagnosing the condition in accordance with 38 C.F.R.

§ 4.125(a) (conforming to the Diagnostic and Statistical

Manual of Mental Disorders, Fourth Edition (DSM-IV)); 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. 38 C.F.R.

§ 3.304(f). Prior to the effective date of 38 C.F.R.

§ 3.304(f) on June 18, 1992, and at the time of the veteran's

claim for service connection for PTSD, the requirements for

service connection for PTSD were: medical evidence

establishing a clear diagnosis of the condition; credible

supporting evidence that the claimed stressor actually

occurred; and a link, established by medical evidence,

between current symptomatology and the claimed in-service

stressor. 38 C.F.R. § 3.304(f) (1998).

Generally, when a law or regulation changes while a case is pending,

the version most favorable to the claimant applies,

absent congressional intent to the contrary. Karnas v. Derwinski, 1 vet. App. 308,

312-13 (1991).

page 3

In this case, the Board will find that the new

regulation is potentially more beneficial in this veteran's

bva compensation case because it only requires medical evidence

of a current diagnosis of PTsD in accordance with DsM-IV, but no longer

requires a "clear" diagnosis of PTsD (which could include a

diagnosis based on a version of DsM prior to the DsM-IV).

However, in light of the Board's grant of the appeal, the

Board will find that the veteran was prejudiced by not being

notified of the change in the regulation. see Bernard v.

Brown, 4 Vet. App. 384 (1993).

with regard to the claimed stressor involving allegations of

personal assault, VA recognizes that veterans claiming

service connection for disability due to an in-service

personal assault~face unique problems documenting their

claims. Personal assault is an event of human design that

threatens or inflicts harm. Although these incidents are

most often thought of as involving female veterans, male

veterans may also be involved. These incidents are often

violent and may lead to the development of PTsD secondary to

personal assault.

VA ADJUDICATION PROCEDURE MANUAL M21-1,

Part III, 5.14 (April 30, 1999) (hereinafter M21-1). Because

assault is an extremely personal and sensitive issue, many

incidents of personal assault are not officially reported,

and victims of this type of in-service trauma may find it

difficult to produce evidence to support the occurrence of

the stressor. Therefore, alternative evidence must be

sought. The M21-1 includes a sample letter to be sent to the

veteran, asking him to provide detail as to any treatment he

had received, any family or friends he had communicated with

concerning this claimed personal assault, and any law

enforcement or medical records pertaining to the alleged

assault. M21-1, Part III, 5.14 (April 30, 1999). see also

YR v. west, 11 Vet. App. 393 (1998) (5.14 is a substantive

rule and the equivalent of a VA regulation).

with respect to claims involving personal assault, all

available evidence must be carefully evaluated. If the

military records do not document that a personal assault

occurred, alternative evidence might still establish an in-

service stressful incident. Behavior changes that occurred

at the time of the incident may indicate the occurrence of an

in-service stressor. Examples of behavior changes that might

indicate a stressor are (but are not limited to): (a) visits

to a medical or counseling clinic or dispensary without a

specific diagnosis or specific ailment; (B) sudden requests

that the veteran's military occupational series or duty

assignment be changed without other justification; © lay

statements indicatlng increased use or abuse of leave without

an apparent reason such as family obligations or family

illness; (d) changes in performance and performance

evaluations; (e) lay statements describing episodes of

depression, panic attacks, or anxiety but no identifiable

reasons for the episodes; (f) increased or decreased use of

prescription medications; (g) increased use of over-the- .

counter medications; (h) evldence of substance abuse such as

alcohol or drugs; (i) increased disregard for military or

civilian authority;

(j) obsessive behavior such as overeating or undereating;

(k) Ipregnancy tests around the time of the incident;

(1) increased interest in tests for HIV or sexually transmitted

; diseases;

(m) unexplained economic or social behavior changes;

(n) treatment for physical injuries around the time of the

claimed trauma but not reported as a result of the trauma;

(0) breakup of a primary relationship.

Page 4

M21-1, Part III, 5.14(7). 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. M21-1,

Part III, 5.14(8).

In adjudicating a claim for service connection for PTSD, the

evidence necessary to establish the incurrence of a stressor

during service to support a claim of entitlement to service

connection for PTSD will vary depending on whether or not the

veteran was "engaged in combat with the enemy." see Hayes v.

Brown, 5 Vet. App. 60, 66 (1993). If it is determined

through military citation or other supportive evidence that a

veteran engaged in combat with the enemy, and the claimed

stressors are related to combat, the veteran's lay testimony

regarding the reported stressors must be accepted as

conclusive evidence as to their actual occurrence and no

further development or corroborative evidence will be

necessary, provided that the testimony is found to be

satisfactory, that is, not contradicted by service records,

and "consistent with the circumstances, conditions, or

hardships of such service." 38 U.S.C.A. § 1154( (west

Supp. 2001); 38 C.F.R. § 3.304(d),(f) (2001); Doran v. Brown,

6 Vet. App. 283, 289 (1994). .

However, if it is determined that a veteran did not engage in

combat with the enemy, or the claimed stressor is not related

to combat, the veteran's lay testimony alone will not be

enough to establish the occurrence of the alleged stressor.

In such cases, the record must contain service records or

other corroborative evidence which substantiates or verifies

the veteran's testimony or statements as to the occurrence of

the claimed stressors. See zarycki v. Brown, 6 Vet. App. 91,

98 (1993).

In this case, there is no objective evidence that the veteran

"engaged in combat with the enemy." See VAOPGCPREC 12-99.

The veteran's DD Form 214 does not indicate references to

combat, but reflects that the veteran was an operations

specialist, was stationed at san Diego, Naval Base. Aboard the

USS COOK (FF-1083) from 1987 to March 1992, and earned no

decorations, medals, badges, ribbons, or awards. Moreover,

the veteran does not even allege that the claimed in-service

stressful event of a personal assault was related to combat

with the enemy in service. For these reasons, the Board

will find that the veteran did not engage in combat with the

enemy and that the reported stressor 1S not claimed to be

related to combat.

Because the veteran did not engage in combat with the enemy,

his lay testimony alone is not enough tO estab1ish the

occurrence of the alleged stressor of personal assault.

However, after a review of the evidence, the Board will find that.

the service records and other evidence of record is

sufficient to raise a reasonable doubt as to whether the

alleged stressors of a personal assault in 27 March 1991, and a near

fatal electrocution which occurred May 16 1983

during the veteran's active duty service did occurr.

The Board should specifically consider medical and personell

records reflecting behavior changes that occurred at the

time of the incidents, or soon thereafter, as indicated by the

M21-1, which may indicate the occurrence of an in-service

stressor.

page 5

The M21-1 contemplates that visits to a medical clinic

without a specific diagnosis or specific ailment is a

behavior change occurrlng at the time of the incident that

might indicate a stressor. In this veteran's case, in

service on April 06, 1991, the veteran reported that ten

days after he sustained an injury to the left side of his

head.

His specific complaints included blurred vision,

left-sided headaches, feelings of dissassociation from

self, vertigo and nausea without vomiting, short term memory loss.

NO diagnosed disability was entered at that time, while

further observation was indicated. About three weeks later,

on April 27, 1991, the veteran reported that he felt about

the same. still no diagnosis was rendered to account for the

reported symptoms. By November 09, 1991, the veteran also

complained of nausea, irratibility, every other day for the previous

month; an assessment regarding this complaint was deferred.

while the veteran reported specific ailments, it is of note

that his reported complaints affecting both his abdomen and

head, and reported several other symptoms. These entries are some

evidence of initial visits to a medical facility without a

specific diagnosis.

The record also reflects that by May 1991 the veteran

indicated that he was unhappy in service and was anxious to

be transferred or released from his present command duty station.

This reflects the veteran's desire not to remain in service,

which includes a desire not to remain on the same base or in the

same command. This is analogous to the M21-1 behavior

change of a sudden request for a change of duty

assignment.

changes in performance and performance evaluations are

behavior changes contemplated by M21-1 that might indicate a

stressor. The only specific or quantified measures of the

veteran's performance during the period following the alleged

personal assault is a December 1990/November 1991, performance

Report which reflects that the veteran's performance steadily

deteriorated throughout the reporting period. Recieving c.o.'s NJP

91OCT 10 for Article 86, and 91 NOV 20 for Article 92. Both NJP'S

resulted in reductions in rank, from a senior E-6 recommended for

advancement, and retention to chief petty officer, to E-4.

Evaluation comments state; The veteran, fails to conform to

military standards and abuses authority, and is Not

recommended for retention and or advancement. The

veteran is being processed for administative seperation,

based on high year tenure. while this report is indicated to have

been based on the previous one year period beginning in December

1990, and ending November 1991. There

are a number of previous evaluation reports to

provide a baseline for comparison. This comparison demonstrates

a drastic change in the veterans behavior, personality,

and performance. such poor performance is also indicated by the

veteran's spouse's statement submitted October 2007. That

the veteran's behavior, personality, and

characture was drastically different than observed six months

previously when home on leave. And that the veteran was

discharged from service in March 1992 well before the end

of his four year service agreement. While it is

clear when a change in behavior in service occurred, the record

reflects that the veteran's personal conduct toward the end of

service indicated low adaptability, functionality, and

acceptability to military life. Thus, indication of a stressor by m21-1.

page 6

bva compensation

obsessive behavior is a change contemplated by M21-1 that

might indicate a stressor. His spouse wrote in October 2007

that when she went to visit the veteran in service she found

the veteran to be angry and irritable and refused to talk to

her. The veteran's spouse wrote that after service he seemed

distant, incoherent, and shallow, and would stare aimlessly

in a corner of a room or at a paticular object. The veteran's

spouse also wrote that soon after service the veteran developed the

obsessive behavior of constantl¥ locking and checking doors

multiple times daily, to the polnt of dlstraction or leaving

other activities unfinished.

Another of the behavior changes indicated by the M21-1 is

treatment for physical injurles around the time of the

claimed trauma but not reported as a result of the trauma.

service medical records reflect that on April 06, 1991

the veteran reported injury to the head but did

not report a personal assault which he later alleged

was the source of such complaints.

The Board will also find it significant that at the first

opportunity after service (the veteran filed his claim for

service connection for post concussion syndrome and for ptsd

within one month of service separation). That the veteran also

sought out assistance and counseling from the Veterans Center

located at 231 W. Cypress Ave. San Antonio, Tx. March 04, 1992.

With complaints of depression, irratability, anxiety, hopelessness,

nightmares, and hypervigilance.

DIAGNOSTIC IMPRESSION: POSSIBLE PTSD / rEQUEST FOLLOW UP SCREENING,

AND EXAMS. REFER TO: AUDIE MURPHY VA HOSPITAL sA TX.

That no VA examination in April through August 1992, was ever afforded

to the veteran. And after being told; "Since your injuries were not caused by,

or in actual combat. The VA cannot assist you, in your claims

for pension and or compensionsation". Apperantly and reluctently

the Veteran gave up seeking any assistance from the veterans administration,

for needed medical help for his non-combat service related injuries.

The veteran has not yet testified under oath at a personal hearing

regarding the incurrence of personl assualt, or near fatal electrocution

in service as of August 2009. The Board will find that, although the

veteran does not consistently recall dates of occurrence of events,

including the in-service assualt, his essential testimony regarding this

event, as well as other significant facts he reported, are

consistent with the service medical record evidence and other

corroborative evidence. The veteran's testimony includes

that he did not have a problem with alcohol prior to service,

that he was assaulted in service on March 27, 1991, that he

reported for medical treatment ten days later but did not

mention the assault, that his behavior changed in service,

prior to discharge, that he mentioned the assault at a VA

examination in 2007. The other evidence of record does not

otherwise demonstrate that the veteran's essential testimony

is not credible. The post-service medical evidence of record

tends to corroborate the veteran's testimony as it reflects

that from 1991 the veteran has reported the occurrence of unexplained

medical conditions not related to an in-service assault on numerous occasions,

solely for treatment purposes.

Based on this evidence, the Board will find that the service

records and other evidence of record is sufficient to raise a

reasonable doubt as to whether the alleged stressor of a

personal assault occurred in March 27, 1991. And a near fatal

electrocution on May 16,1983 during the veteran's active duty

service. Resolving reasonable doubt on this question in the

veteran's favor. the Board will find that the reported stressor

of a personal assault occurred in military service, March 27, 1991.

The Board will find also that the reported stressor of a near

fatal electrocution occurred in military service, May 16, 1983.

38 C.F.R. § 3.102.

page 7

bva compensation

The record includes a medical diagnosis of PTSD and medical

evidence of a nexus between diagnosed PTSD and the stressful

event of a TBI/injury, diagnosed post concussion syndrome

and a near fatal electrocution. The two additional elements

required to establish a claim for service connection for PTSD.

38 C.F.R. § 3.304(f).

For example, a september 2007 VA progress note records the veteran's

reported history of a personal assualt during active service by

an unknown assailant, with a diagnosis of post-traumatic stress reaction

to assault, with major depressive disorder severe, chronic.

A VA hospital summary in April 2008 reflects a history which included

the report of in-service assault, and resulted in diagnoses which

included a history of non-combat PTSD.

The progress notes reflect consideration of PTSD as

the primary diagnosis. VA outpatient treatment records from

2007 to 2008 reflect a continued diagnosis of PTSD based on

reports of a personal assault, and near fatal electrocution in service

with a G.A.F. of ( 39 ).

However, in a Febuary 2008 letter, A private psychologist Dr. F.E.

wrote that the veteran was suffering from Axis I: Post Traumatic

Stress disorder, Major Depressive disorder, Dysthymic disorder,

Generalized Aniexty disorder, Alcohol Dependence.

Axis II: personality disorder, NOS with schizotypal, schizoid,

Borderline, Depressive, and passive-Aggressive features.

PTSD, severe, chronic, as a result of being assaulted while in service,

and a near fatal electrocution in active military service.

The record includes: Febuary 6, 2009. A general base line summary,

from staff neuropsychologist, Kristin R. Krueger, PhD.

Dept. of Veterans Affairs, Audie L. Murphy Memorial Veterans

Hospital Division, S.A., Tx.

Which states; Veteran is a 51-year old, right-handed, married Caucasian

man with 11 years of formal education. He was referred by psychologist,

Timothy Rentz, PhD for evaluation of cognitive status to aid in

differential diagnosis and treatment planning. The pt completed

a neurocognitive status exam (1 Hour) with Kristin R. Krueger, PhD and

face-to-face neurobehavioral testing (3 hours) conducted by

Kimberly Van Buren, M.A. Pt was evaluated in April 2008.

Summary and Impressions: Veteran reported dramatic changes in his

character and cognitive functioning as a result of a TBI in 1991.

Medical history is significant for hypertension, post concussive syndrome,

sleep apnea, possible stroke, substance abuse and multiple surgeries.

Veteran has an extensive history of psychiatric illness that was first

treated during military service. Veteran is currently being treated for

Major Depressive Disorder and Post Traumatic Stress Disorder.

Psychosocial history is positive for child abuse and subsequent placement

in a series of foster homes and institutions.

Occupational history is positive for dismissal due to inability to

get along with others.

Interview and testing revealed a severely inhibited and cautious man, with a

overall intact cognitive profile, with the exception of slowed processing speed

and variable attention/executive functioning. Veterans Memory is within normal

limits, with visual memory better than verbal memory.

Veterans slow processing speed and difficulties with attention/executive functioning

may be influencing his ability to encode information in a timely fashion and he

is consequently experiencing memory difficulties. IT IS LIKELY THAT THE VETERANS

ABILITY TO PERFORM THESE TASKS IS INFLUENCED BY BOTH REPORTED TBI's

AS WELL AS SYMPTOMS OF PTSD.

Given the Veterans acute distress and his difficulty with processing speed and

attention/executive functioning. And the time since his TBI's, addressing his

psyciatric issues at this time is likely to be of most benefit to the veteran.

Summary report from dr rentz va pyscologist Frank Tejeda vet svcs ctr

dated 04/27/2009 states: Veteran reported two traumatic events during

active duty military service that meet Posttraumatic Stress Disorder

(PTSD diagnostic criteria A1) (exposure to a traumatic event). The

first event was in the US Navy aboard the USS Illusive: veteran

recieved a severe, potentially fatal electric shock/explosion while

working on a 300kw ship-to shore power cable which had mistakenly not

been turned off. He was thrown about 10 feet into a bulkhead, suffered

loss of consciousness, burns to his eyes and temporary neurological blindness.

The second event was when the veteran was assaulted from behind

while serving aboard the USS Cook. Veteran suffered loss of consciousness,

awoke in a pool of blood due to head injury (being struck on the head),

and subsequently displayed symptoms of post-concussive syndrome, and changes

in behavior consistent with Posttraumatic Stress Disorder. Veteran

reacted to these events with feelings of terror, "Being scared to death,"

confusion, and helplessness.

Both of these incidents are life-threatening events,

the first due to a near fatal electrocution,

the second due to severe interpersonal trauma in the

form of an assault. Both of these incidents occured

in a non-combat environment during active-duty service

in the U.S. Navy. (IT IS MORE LIKELY THAN NOT,

THAT HIS CURRENT SYMPTOMS OF PTSD ARE RELATED TO THESE

EVENTS DURING ACTIVE-DUTY MILITARY SERVICE.)

The veteran has provided copies of medical records and

personnel records that are consistent with these events.

He has continued to re-experience these events in the forms

of intrusive thoughts and images, replaying the events in his mind,

and feels unable to block it out.

He has frequent nightmares and experiences emotional and

physiological symptoms of sympathetic nervous system activation

(fight-or-flight response) when reminded

of these events.

He has symptoms of avoidance including attempts to put

thoughts and memories of the traumatic events out of his mind,

avoids people, public places, electric cords & cables,

and has used alcohol (binge drinking patterns)

to avoid emotional re-experiencing.

He has lost interest in most activities he used to enjoy,

such as gardening, baseball, boxing, and socializing.

He feels detached and numb much of the time, has restricted

range of emotions, e.g. cannot feel happiness, is emotionally

distant in his relationship with his wife, has lost almost all

other relationships, and has a fore-shorteded sense

of the future.

The veteran experiences symptoms of hyperarousal including insomnia,

frequent irritability and anger outbursts triggered by both

interpersonal and inanimated routine stressors, cannot concentrate

for more than a few minutes, is hypervigilant for signs of

threat or danger, e.g. always watches what people are doing,

always feels on guard, is aware of small sounds and movements,

and is "jumpy" and easily startled by sudden or loud noises.

The veteran first sought treatment for PTSD in 1992 from the

Vet Center, initial assessment evaluation; Possible PTSD,

patient referred to Audie Murphy Veterans Hospital,

San Antonio, tx. But was told at VA hospital, he did not

qualify for treatment there because his traumatic experiences

were non-combat related. He again sought treatment in

2007 and was evaluated and diagnosed with PTSD in the

VA PTSD Clinic, Frank Tejeda Outpatient Clinic in San Antonio.

Since that time he has remained active in individual treatment,

and has made some guarded progress in managing emotions through

cognitive restructuring, improving assertiveness skills,

anger management, and confronting memories of traumatic events.

This veterans symptoms of PTSD remain at a HIGH LEVEL, despite some

modest improvement. His prognosis for improved symptom management

is fair/good. His prognosis for return to normal functioning is POOR.

This veteran continues to have extreme difficulty with

interpersonal stressors and has subsequent occupational impairment.

He is able to work at some temporary and part-time jobs, but tolerates

high levels of distress to do this.

Axis I: PTSD, Severe, Chronic, Major Depressive Disorder, Severe, recurrent.

Axis V: 40.

In summary, his alleged stressors are verifiable to the Board's

satisfaction and his lay evidence is deemed credible. The

credibility to be accorded to the appellant's lay testimony

or written statements is within the province of the

adjudicators and is not a matter of medical expertise.

Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, there

exists no doubt that the veteran has been diagnosed with

PTSD. The documentation from the service department is

extensive and the record does tend to corroborate events

associated with both near fatal electricution, and TBI,

which he has related as the stressors since 1992,

veterans initial claim to support service connection.

As the VA examiner in 2009 implied, the veteran has given

a reliable version of events which weighs in favor of his

credibility with respect to the events clinicians have

noted to support the PTSD diagnosis in the personal assault

and near fatal electricution context.

Thus, having accorded due consideration to the veteran's

statements, lay statements, medical reports, and to official

records, the Board will conclude there are corroborated military

stressors of a non-combat nature. In light of the above,

there is an approximate balance of positive and negative

evidence to which the benefit-of-the-doubt standard applies.

Accordingly, service connection for PTSD should be granted.

AS indicated, the record includes a medical diagnosis of PTSD,

competent evidence which supports the veteran's

assertion of in-service incurrence of the stressful events of

a personal assault, and near fatal electrocution and medical

evidence of a nexus between diagnosed PTSD and the stressful events

of personal assault, and a near fatal electrocution in service.

For these reasons, and with the resolution of reasonable doubt

in the veteran's favor, the Board will find that

the veteran's diagnosed PTSD was incurred in service.

38 U.S.C.A. §§ 1110, 1131, 5107, 5103, 5103A

(west 1991 & west Supp. 2001); 38 C.F.R. §§ 3.102, 3.303, 3.304(f),

4.125(a); 66 Fed. Reg. 45,630-32 (Aug. 29, 2001)

(to be codifled as amended at 38 C.F.R. § 3.159).

REQUESTED ORDER

The appeal for service connection for PTSD should be granted.

That 100% disability should be assigned and granted.

page 8

[carlie]

mrkman12,

Please do not post the same post into more than one thread.

Thanks,

carlie

[john999]

I think your VSO is going to think you are trying to do his job for him. You should just tell him what you are trying to accomplish and supply the evidence. Better yet, get a lawyer to do this. Non combat PTSD is hard enough without having some VSO do it. He/she will probably make a mess of it. Ask TestVet what he thinks. He won non combat PTSD claim. Not tryin to offend you, but help you clip a few years off this claim.

[mrkman12]

I think your VSO is going to think you are trying to do his job for him. You should just tell him what you are trying to accomplish and supply the evidence. Better yet, get a lawyer to do this. Non combat PTSD is hard enough without having some VSO do it. He/she will probably make a mess of it. Ask TestVet what he thinks. He won non combat PTSD claim. Not tryin to offend you, but help you clip a few years off this claim.

Thank you, John.

I know you are not trying to offend me and the inputs recieved at hadit.com are rest assurdiedly most appreciated. I am just trying to understand the proper procedures in this all mighty hamster wheel process, to get the assistance needed to help combat the symptoms of the ptsd/mdd. So that I can get my life back, and be independant again. Whether or not I am compensated really holds no ethical value to me but justice and reinstatement of my good name is... And as miss carlie states, I will go to the grave with a claim form in my cold dead hands....You see john, the money is not the object, I am trying to correct a grave injustice done to me at the hands of the military and the freakin VA.......To be honest w/ you, I frankly do not care what my VSO thinks. After all he is just another hurdle to overcome. I do have to give him credit though, He did take the time to read the draft to the BVA. He (VSO) stated it was a good brief, and submitted it to the VARO in HOUSTON....So now I wait.....mark

[carlie]

Thank you, John.

Whether or not I am compensated really holds no ethical value to me but justice and reinstatement of my good name is...

mrkman,

The only way of getting justice is by VBA paying compensation in dollars and providing

health care for disabilities incurred directly or secondary to active duty.

As for VBA they care nothing about "our good names", we are, and will remain

nothing to VBA but liabilities. If you get hung up on this - the only relief you will get

is when your claims are granted as service connected and the money hits your bank account.

And as miss carlie states, I will go to the grave with a claim form in my cold dead hands....

If my claims ever get totally resolved to my satisfaction.. I will most likely still leave

this earth with some veterans NOD or Form 9 in my cold, dead hand. lol

You see john, the money is not the object, I am trying to correct a grave injustice done to me at the hands of the military and the freakin VA.......

I'm not John - but if money and health care are not the object - why keep getting

beat up by going through the VA disability claims process.

Do you think it would resolve or lessen your disabilities if VA wrote you a letter saying,

Dear Veteran,

The Veterans Administration is so sorry you got injured while providing Honorable service

to your country.

Since you were almost electrocuted to death and someone beat the crap out of you while on active duty, the VA would like to take a moment to say just how much we truly appreciate your admirable service.

Although it is unfortunate,these incidents have left you with a lifetime of disabilities we continue to offer our most sincere appreciation.

Should you need a confirmation letter of your disabilities, to submit to Social Services or your local Food Stamp Office,the Veterans Administration will gladly provide this for your assistance.

Again, We thank you for incurring your disabilities while serving and protecting your country.

May God bless all veterans.

Sincerely,

Iman Azz - Veteran's Claims Adjudicator

To be honest w/ you, I frankly do not care what my VSO thinks. After all he is just another hurdle to overcome. I do have to give him credit though, He did take the time to read the draft to the BVA. He (VSO) stated it was a good brief, and submitted it to the VARO in HOUSTON....So now I

wait.....mark

A VSO can submit or not submit anything they do or do not want to

and they already have your consent to do this due to the form you sign

allowing them to represent your claim.

carlie