Citation Nr: 1754815 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-08 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as a result of military sexual trauma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to January 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in August 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. FINDING OF FACT The evidence shows that the Veteran has a current diagnosis of PTSD as a result of military sexual trauma. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The VA has specific duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. However, inasmuch as this decision grants the benefit sought on appeal, any notice error or duty to assist failure as to this claim is harmless. Principles of Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). 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); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The sufficiency of a stressor is a medical determination and is presumed by a medical diagnosis of PTSD. Cohen, 10 Vet. App. at 140. If a PTSD claim is based on an in-service personal assault, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Section 3.304(f)(5) provides that PTSD based on a personal assault in service permits evidence from sources other than a veteran's service records which may corroborate his or her 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. When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts and Analysis The Veteran seeks service connection for PTSD as a result of a sexual assault he endured in service. The record shows that the Veteran is currently service-connected for paranoid schizophrenia, rated as 70 percent disabling, with an award of total disability resulting from that diagnosis. The Veteran has asserted that his first psychotic episode which resulted in the diagnosis of schizophrenia was a direct result of the sexual assault and has asserted that PTSD should be the primary diagnosis and service-connected disability. In determining whether service-connection for PTSD as a result of military sexual trauma is warranted, the first requirement is that the Veteran have a diagnosis of PTSD. A VA examiner in June 2012 stated that the requirements for a diagnosis of PTSD under DSM-IV had not been met. (See VA Exam, received 07/10/2012, p. 2.) However, the record shows that the Veteran has been treated by VA for many years for multiple mental health issues and that PTSD is included in the diagnoses. (See Medical Treatment Record, received 06/18/2012, p. 1.) In addition, a treatment note in September 2008 stated that the psychological testing administered during his inpatient psychiatric treatment had shown scores consistent with a diagnosis of PTSD. (See Medical Treatment Record, received 06/28/2011, p. 70.) Based on the fact that the Veteran has carried a diagnosis of PTSD for several years during his treatment at VA, including inpatient treatment for military sexual trauma, the Board finds that the competent evidence reflects a current diagnosis of PTSD. The second requirement for service-connection for PTSD is credible supporting evidence of an in-service stressor event, which, when military sexual trauma is involved, can include indirect evidence of the event. The Veteran's service treatment records show that he was treated in October 1977 for symptoms of psychosis. (See Medical Treatment Records, received 6/21/2011, p. 4.) At that time, he told providers that went to see a chaplain in regards to his desire for a discharge from service and the chaplain proceeded to perform fellatio on him. It does not appear that any further action was taken with regard to that assertion and the remainder of the treatment dealt with symptoms of paranoid schizophrenia. The Veteran was subsequently discharged from service on a medical disability basis. In addition to the Veteran's report of the incident in service when he was treated in October 1977, contemporary evidence also supports the occurrence of a stressor event in service. In January 2003, the Veteran underwent a military sexual trauma evaluation at VA. (See Medical Treatment Records, received 02/24/2003, p.11.) The provider diagnosed Adult Sexual Abuse; the truthfulness of his assertions was supported by the fact that his description of the event in service had been consistent since he first reported it in therapy in 1995. The Veteran's demeanor during his description of what occurred was also consistent with an honest report and not one made for financial gain. Finally, the criteria for service connection require a medical opinion linking the Veteran's current mental health symptoms to the stressor event in service. A VA examination in February 1997 included a diagnosis of "history of sexual trauma and possibly dysphoria." (See VA Exam, received 2/11/1997, p. 5.) The Veteran's VA treating psychiatrist has provided a written statement that the Veterans' history of military sexual trauma had resulted in intense anxiety and insomnia. (See Medical Treatment Record, received 06/18/2012, p. 1.) Even the June 2012 VA examiner stated that the incident of military sexual trauma satisfied the criteria for a PTSD stressor. (See VA Exam, received 07/10/2012, p. 4, 8.) After reviewing all of the evidence of record, including the Veteran's heartfelt and sincere testimony at the January 2017 Board hearing, the Board finds that the criteria for service connection for PTSD due to military sexual trauma have been satisfied. There is competent medical evidence of a diagnosis of PTSD, specifically the many years of VA treatment and diagnosis of PTSD. There is corroborating evidence that the incident in service occurred, including the statement in 1977, the Veteran's testimony at hearing, and the opinion on credibility provided by the VA military sexual assault evaluation in 2012. And there is medical evidence linking the event in service to the Veteran's current mental health issues, again including many years of treatment at VA, including inpatient treatment for the residual effects of military sexual trauma. The Board acknowledges the Veteran's assertions that PTSD should be listed as the primary diagnosis and that a 100 percent disability award should be granted, retroactive to 1978. (See Statement in Support, received 02/09/2011, p. 1.) However, the issue of primary diagnosis is a medical determination and does not have any effect on the finding that service connection is warranted. The severity of the Veteran's disability and the rating to be assigned are also not matters over which the Board has jurisdiction at this time. With respect to the question of the effective date of the award of service connection, assignment of that date is defined by specific laws. While the Veteran's desire for a retroactive date is understandable, the earliest effective date which may be assigned is the date of VA's receipt of the claim, in this case, October 2010. 38 C.F.R. § 3.400. In conclusion, the Board acknowledges the military sexual trauma suffered by the Veteran in service and the resulting diagnosis of PTSD for which he is receiving ongoing treatment. As such, service connection is granted. 38 C.F.R. § 3.304(f). ORDER Service connection for PTSD as a result of military sexual trauma is granted. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs