Citation Nr: 1754935 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-34 137A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD), depression, anxiety and sleep disturbance, claimed as due to in-service military sexual trauma. REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran had active service from August 1970 to April 1972, which included service in the Republic of Vietnam. This case comes before the Board of Veteran's Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veteran's Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board previously remanded the claim in April 2016 for additional development. The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDING OF FACT Resolving all doubt in favor of the Veteran, an acquired psychiatric disorder, to include PTSD, depression, anxiety and sleep disturbance, is related to in-service military sexual trauma. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder to include PTSD, depression, anxiety and sleep disturbance have been met. 38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for an acquired psychiatric disorder to include PTSD, depression , anxiety and sleep disturbance is a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); 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). When the evidence does not establish that a Veteran is a combat Veteran, her assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, her reported service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304 (f); Pentecost v. Principi, 16 Vet. App. 124 (2002). When a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. 38 C.F.R. § 3.304 (f)(5); see also Patton v. West, 12 Vet. App. 272, 277 (1999). 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. 38 C.F.R. § 3.304 (f)(5). 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. Id. For personal assault PTSD claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. 38 C.F.R. § 3.304 (f)(5); Menegassi v. Shinseki, 638 F.3d 1379, 1382-83 (Fed. Cir. 2011); Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006); Patton v. West, 12 Vet. App. 272, 280 (1999). The question of whether the Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals, but whether the evidence establishes the occurrence of a stressor is a question of fact for adjudicators. See 38 C.F.R. § 3.304(f). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his current acquired psychiatric disorder is due to military sexual trauma (MST) he experienced while on active duty. Specifically, he testified at his November 2016 hearing that, while stationed in Vietnam approximately in January and February 1972, he was sexually assaulted by another service member. He indicated that he did not report the assaults and received no medical treatment. However, he contends that upon returning to the United States, he began drinking heavily. He also reported that he continued to suffer from psychiatric symptoms, including dislike of crowds and discomfort with anyone approaching him from behind. As an initial matter, the Board finds the competent evidence of record establishes a diagnosis of an acquired psychiatric disorder. Specifically, the Veteran's post service VA treatment records reflect that he was diagnosed with PTSD secondary to MST. The Board also finds that, in resolving all doubt in favor of the Veteran, that it is at least as likely as not that he experienced MST during service. In this regard, his service treatment records (STRs) neither confirm nor rebut his assertions of such a MST. However, as noted above, the Veteran contends that he did not formally report the incident. By law, the absence of a record of an unreported sexual assault cannot be considered as evidence of the nonoccurrence of the assault under such circumstances. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Furthermore, it is common knowledge that victims of sexual assault often do not report their trauma or if they do, it is not for many years after. Therefore, the absence of any service record documenting the Veteran's assault is not pertinent evidence that the assault did not occur. The Board further notes that the Veteran's brother provided a May 2013 statement which indicated that the Veteran's behavior had greatly changed after he returned from Vietnam. The Veteran's brother stated that the Veteran had been personable and outgoing prior to leaving for Vietnam but that upon his return he was "a different man," hostile and refused to talk about his experiences in Vietnam. Furthermore, the Board notes that the Veteran testified at his November 2016 hearing that he began drinking heavily in order to self-medicate upon his return. He reported to VA in 2006 that he had a drinking problem and was encouraged to stop or greatly reduce his drinking. As the Board finds the Veteran's allegations and hearing testimony credible and as evidence of behavioral changes may be used to corroborate the Veteran's account of the stressor incident, the Board resolves all doubt in favor of the Veteran. See 38 C.F.R. § 3.304 (f)(5). Based on the foregoing, the Board finds that, in resolving all doubt in favor of the Veteran, it is least as likely as not that he experienced MST during service. Accordingly, the second element of a service connection claim, in-service incurrence of an injury, is established. Furthermore, the evidence of record indicates that it is at least as likely as not that an acquired psychiatric disorder, to include PTSD, depression, anxiety and sleep disturbance, is related to his MST during service. In this regard, the Board acknowledges that the medical evidence does not clearly establish a link between the Veteran's acquired psychiatric disorder, to include PTSD, depression, anxiety and sleep disturbance, and the MST he described. However, his VA treatment records do indicate that the Veteran was diagnosed with "military related PTSD" and "PTSD secondary to MST." Furthermore, the Board notes that there is no contrary opinion of record. Consequently, the Board resolves all doubt in favor of the Veteran and finds that an acquired psychiatric disorder, to include PTSD, depression, anxiety and sleep disturbance is related to in-service military sexual trauma. Accordingly, service connection for PTSD, depression, anxiety and sleep disturbance is warranted. 38 U.S.C. 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for an acquired psychiatric disability, including PTSD, depression, anxiety and sleep disturbance is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs