Citation Nr: 1326665 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-23 803A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from March 1992 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. For purposes of clarification, this is not a reopened claim as was characterized in a September 2010 rating action. The claim on appeal arises from an October 2009 rating decision, following which the Veteran submitted new and material evidence to the claim within a year of the denial. As new evidence was received within a year of the denial, the October 2009 never became final but rather remained pending. See 38 C.F.R. § 3.156(b) (2012). The Veteran's Virtual VA file has been reviewed and the records contained therein have bene considered in the decision below. FINDINGS OF FACT 1. The Veteran's lay accounts of experiencing military sexual trauma during service are found credible and corroborated by supporting evidence of changes in behavior following the trauma. 2. Multiple VA psychologists and a private psychiatrist have found the Veteran's lay history of a military sexual assault credible and have provided diagnoses of PTSD as a result of an in-service stressor involving military sexual trauma. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, service connection for a psychiatric disorder, specifically PTSD based on military sexual trauma, is warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f)(4), 4.125(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Because the determination below constitutes a full grant of the claim for service connection for a psychiatric disorder, there is no reason to discuss how VA has satisfied the VCAA. Legal Criteria and Analysis Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012); see also Cohen v. Brown, 10 Vet. App. 128 (1997). In this case, the Veteran's PTSD claim is based on an alleged in-service personal assault. She has argued that while in service, in 1993, a captain attempted to sexually assault her which led to her current PTSD. Because of the personal and sensitive nature of a personal assault, many incidents are not officially reported. This creates a proof problem with respect to the occurrence of the claimed stressor. In such situations, it is not unusual for there to be an absence of service records documenting the events a veteran has alleged. Therefore, evidence from sources other than a Veteran's service records may corroborate an account of a stressor incident. See, e.g., Patton v. West, 12 Vet. App. 272, 277 (1999); see also 38 C.F.R. § 3.304(f). A Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor if: (1) The claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (2) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran's symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3). 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 and such evidence include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor, and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(4) (2012). See Bradford v. Nicholson, 20 Vet. App. 200 (2006). VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Having considered all the evidence of record in light of the regulations noted above, the Board finds that with the resolution of reasonable doubt in the Veteran's favor, service connection is warranted for a psychiatric disorder, specifically PTSD. A review of the Veteran's outpatient treatment records shows that the Veteran has been diagnosed with PTSD. Therefore, the remaining question is whether the currently diagnosed PTSD is due to an incident in service, in particular, the reported sexual trauma. The Veteran's service treatment records and personnel records do not contain either a diagnosis of PTSD or evidence specifically corroborating the Veteran's claimed in-service personal assault/sexual trauma. Mindful of the Court's holding in Patton v. West, 12 Vet. App. 272, 277 (1999), the Board will turn its attention to other evidence of record in determining whether the evidence of record supports the Veteran's claim of an in-service personal assault. In this regard, the Board notes that the Veteran has alleged her military sexual trauma occurred in 1993. The Board acknowledges that at one point the Veteran reported the sexual assault to have occurred in 1994; however, it was explained that due to the passage of time and the calculations, the year of the incident was initially wrongly reported as 1994 rather than 1993. The Veteran's DD 214 shows she served from March 1992 to December 1993. Service personnel records show that approximately in April 1993, the Veteran started having problems with alcohol abuse and was being counseled and treated for alcohol abuse. Ultimately, separation from service was recommended due to worsening, repeated and uncontrolled abuse of alcohol. There were no alcohol problems reported on enlistment or during the first year of service. This change in the Veteran's behavior and her substance abuse can be considered evidence in support of her reports of a sexual assault in 1993 in service. The Veteran has also submitted lay statements from her parents, and her sister, via letters dated in June 2012, which describe the Veteran's behavioral and personality changes since service. The letters describe the Veteran prior to service as having no problems and being essentially happy, to after service as angry and depressed. The letters also state the Veteran had no alcohol or drug problems prior to service. The Board recognizes that there is no evidence of a sexual assault noted in the Veteran's service records. However, it is not unusual for the files to lack in-service documentation of such events. In this case, other evidence such as indications of behavioral changes in service and credible lay statements, have assisted in reaching an equitable decision in this case. The Board acknowledges that in 2008, while initially seeking psychiatric treatment, the Veteran denied any military sexual trauma. However, since then, the Veteran's attorney has explained that the initial denial is behavior consistent with a person who has experienced sexual trauma. The same was noted in by the private psychiatrist in the November 2012 report. Moreover, since she reported the sexual trauma in service, her recounting of the events has been consistently the same. Considering the above, the Board accepts the Veteran's reports of a sexual trauma in service. Regarding a nexus to service, the Board notes that multiple VA outpatient treatment records show a diagnosis of PTSD with multifactorial stressors both pre-service and post-service. Stressors include child sexual abuse and military sexual abuse. Both stressors have been noted to have contributed to the present diagnosis of PTSD. Additionally, in an April 2010 letter, A.P. Ph.D., a VA clinical psychologist, stated that the Veteran has PTSD which is related to child sexual abuse, exposure to domestic violence at home, and sexual assault during military service. In a July 2011 letter, she reiterated the above and explained that while the child sexual abuse was a cause of her PTSD, the military sexual trauma also contributed to her current diagnosis. Additionally, the Veteran submitted a private psychiatrist's evaluation and opinion that her PTSD is due to the sexual trauma in service. The psychiatrist explained that despite the sexual abuse as a child, the sexual trauma in service triggered the symptomatology which lead to the current diagnosis of PTSD. Significantly, none of the treating physicians, the VA clinical psychologist or the private psychiatrist have questioned the credibility of the Veteran's reports. Quite the contrary, they all appear to accept the Veteran's reports of a sexual trauma in service and have found her credible. The opinions stand uncontradicted by any other competent medical evidence of record. Considering the diagnosis of PTSD based on the Veteran's credible lay history of a service incurred sexual assault, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a psychiatric disorder, specifically PTSD as a result of military sexual trauma, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a psychiatric disorder, specifically PTSD, is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs