Citation Nr: 1744591 Decision Date: 10/05/17 Archive Date: 10/17/17 DOCKET NO. 11-31 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and personality disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to December 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In June 2016, the Board remanded the claim for additional evidence. The requested development has been completed, and the case has returned to the Board for adjudication. FINDINGS OF FACT 1. A stressor supporting a diagnosis of PTSD has been corroborated. 2. Resolving all reasonable doubt in favor of the Veteran, the Veteran has a diagnosis of PTSD that is related to an in-service stressor. CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). To establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a relationship between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2016); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a) (2016); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). When a claimant seeks benefits and the evidence is in relative equipoise, reasonable doubt is resolved in favor of the claimant, and the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). There are particular requirements for establishing service connection for PTSD in that are separate from those for establishing service connection generally. 38 C.F.R. § 3.304(f) (2016); Arzio v. Shinseki, 602 F.3d 1343 (Fed. Cir. 2010). Establishing service connection for PTSD requires (1) a diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f) (2016). PTSD The Veteran asserts that she has PTSD as a result of repeated sexual assaults in the military by her first sergeant. Specifically, she states that he blackmailed her for sex by threatening to ruin her military career by revealing that she had inaccurately indicated on her enlistment application that she had no dependent children. The Board recognizes that absent objective evidence that the Veteran engaged in combat with the enemy, her lay statements, alone, are not sufficient to establish the occurrence of an in-service stressor. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Rather, in such cases, the record must contain service records or other corroborative evidence that substantiates the Veteran's testimony or statements as to the occurrence of a claimed stressor. 38 C.F.R. § 3.304 (2015); West v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 91 (1993). However, corroboration of every detail of a claimed stressor, including the Veteran's personal participation, is not required. Rather, a Veteran only needs to offer independent evidence of a stressful event that is sufficient to imply personal exposure. Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). Further, if a claim for PTSD is based on an in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 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. 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. 38 C.F.R. § 3.304(f)(5) (2016). Here, corroborative evidence has been supplied in the form of the service personnel records which show that in July 1976, an investigation was initiated into the Veteran's enlistment after it was discovered that she had a dependent child. The personnel records contain the Veteran assertions that in October 1975 she had informed her Army recruiter that she had a child. She further indicated that her recruiter told her not to volunteer any information at her entrance physical that she was not asked. In October 1976, it was determined that the Veteran had fraudulently enlisted in the Army, and her enlistment was voided effective the date of her entry into service. These records are consistent with the Veteran's report of being blackmailed for sex by a superior noncommissioned officer threatening to reveal that she had inaccurately indicated on her enlistment application that she had no dependent children. Additional corroborative evidence has been supplied in the form of a November 2015 statement from C.K. which shows that the Veteran called her mother to come and get her while she was in service. C.K. remembered that the Veteran was crying hysterically, and the family knew that something had happened to her. C.K. said that she later found out that the Veteran had been molested on active duty. This record is also consistent with the Veteran's report. The Board finds that the Veteran's report of an in-service stressor, coupled with the corroborating evidence found in the service personnel records and statement from C.K., satisfies the requirement of an in-service stressor. The remaining question is whether the Veteran has PTSD as a result of the in-service corroborated stressor. In June 2016, the Board remanded the claim to provide the Veteran a VA examination. On VA examination in February 2017, the examiner noted that the Veteran had multiple inpatient psychiatric admissions in addition to outpatient treatment. The Veteran reported experiencing military sexual trauma from a noncommissioned officer while on active duty at Fort Riley in 1975. Although the examiner commented that no markers in the service records were present, the Veteran presented with a reliable report of the assault. Additionally, the examiner found that the Veteran presented credible PTSD symptoms that would be related to an assault. The examiner felt that the Veteran directly experienced actual or threatened sexual violence. It was noted that the Veteran provided an accurate history and had adequate insight. The examiner reiterated that the Veteran presented with a consistent report of a military sexual trauma stressor, and she presented with a credible report of symptoms that would reasonably be expected to stem from that stressor. Although the examiner did not find actual markers, the examiner opined that it was at least as likely as not that the Veteran's diagnosed PTSD was related to the reported military sexual trauma based on history and current presentation. That evidence provides a diagnosis of PTSD related to the Veteran's in-service stressor and supports the Veteran's claim. The Board acknowledges that other evidence of record indicates that the Veteran may have had pre-service stressors. For example, an April 1978, hospitalization report shows that the Veteran's history was remarkable for two suicide attempts during teenage years, two divorces, and frequent job changes. A November 1993, hospitalization record contains the Veteran's attribution of depression to sexual abuse sustained while she was on active duty. She also reported a history of physical and sexual abuse as a child by a family member. Additionally, a VA treatment record from August 2010 contains a history of the Veteran's traumas. The note reported that the Veteran was molested by a family member as a young child; then, at age 12, she was raped by four high school males. However, a Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that (1) the disability existed prior to service and (2) was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111 (West 2014); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran's October 1975 service enlistment examination report shows that she was psychiatrically normal. Therefore, she is presumed to have been sound upon entering active duty. In order to rebut that presumption of soundness, the evidence must include clear and unmistakable evidence of a preexisting condition, and clear and unmistakable evidence that the pre-existing condition was not aggravated by service. While the evidence reviewed above suggests that the Veteran has had multiple stressful incidents during her life, they do not clearly and unmistakably show that the Veteran had a psychiatric disability that pre-dated her active duty. While acknowledging the Veteran's various stressors, no medical professional of record has indicated that the Veteran's presently diagnosed psychiatric disabilities predated service. Considering the evidence as a whole, the Veteran's presently diagnosed psychiatric disability cannot be satisfactorily disassociated from her service. The Board has found that the Veteran's claimed in-service stressor has been verified. As the evidence of record shows a corroborated in-service stressor, a current diagnosis of PTSD, and satisfactory evidence of a link between the two, the Board finds that it is at least as likely as not that PTSD is the result of an event in service. Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted and the claim is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016). ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs