Citation Nr: 1758065 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 13-11 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a service connection for psychiatric disability, including due to posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and polysubstance abuse disorder. REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1987 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied service connection for PTSD and a total disability rating due to unemployability (TDIU). In June 2011 the Veteran filed his notice of disagreement, and in April 2013 was issued a statement of the case and perfected his appeal to the Board. In July 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. In an October 2016 decision, the Board denied the Veteran's appeal as to entitlement to service connection for traumatic brain injury (TBI), a forehead scar, and PTSD. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). A September 2017 Order of the Court granted a May 2017 Joint Motion for Partial Remand of the Veteran and the Secretary of the Department of Veterans Affairs (the parties) wherein the parties agreed to withdraw claims of entitlement to service connection for TBI, service connection for a forehead scar, and a total disability rating based on individual unemployability (TDIU), and remand the PTSD claim as the Board failed to support its decision with an adequate statement of reasons and bases. FINDING OF FACT The Veteran's PTSD is due to his active service and his MDD and polysubstance abuse disorder were caused by his PTSD. CONCLUSION OF LAW The criteria for service connection for PTSD, MDD and polysubstance abuse disorder have all been met. 38 U.S.C.§§ 1110, 1131, 5107 (2012); 38. C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contended that his PTSD is due to a military sexual assault (MST). He stated that while stationed in Germany, his squad leader's wife coerced him into having sex with her insinuating that she could help him with his rank and his future. He reported that he then started to disassociate himself from his friends and his squad leader, avoided the living complex, and started to drink excessively. The Veteran testified that he did not ask for a transfer after the incident, but when presented with an opportunity to stay in Germany or return to the United States, he chose to return to the United States. He stated that he did not report the incident or seek psychiatric assistance after leaving Germany and suppressed the emotional trauma. Although uncertain as to the date of the MST, the Veteran testified that he believed it was in late 1988. During the hearing he arrived at the estimation of late 1988 by referring to arriving in Germany in April 1988 and this event occurring some 6 months later. This would put the date at October 1988. Service treatment records document that the Veteran sought treatment for several symptoms in mid-August 1988, including being nervous. He reported that he started a new job and was under pressure. He was assessed with situational stress. This is not so far from the estimated date of the MST to find it not associated with the MST. The Veteran also mentioned involvement in an accident while at Ft. Polk in Louisiana. The Veteran testified that the accident occurred close to his separation date, but he does not remember the accident. He recalled blood pouring down his face and receiving treatment in the hospital, yet he was not able to procure a police report, insurance report, or medical record as evidence of the accident or treatment. Of record is a December 2012 statement from the Veteran's mother. She reported that she was aware of the in-service MVA and reported that his demeanor was different when he returned from service as compared to prior to service. There is nothing to question her account. Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria, in accordance with 38 C.F.R. § 4.125 (a); (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. See 38 C.F.R. § 3.304 (f). When, as in this case, a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate his account of the stressor incident. 38 C.F.R. § 3.304 (f) (5). 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. See id. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. See id. In a claim for service connection for PTSD based on in-service personal assault, favorable medical evidence diagnosing PTSD based on the Veteran's account of in-service assault must be weighed against all other evidence of record when determining whether the claimed in-service personal assault has been corroborated. See Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Service treatment include a report of medical examination for enlistment in January 1987. There was no psychiatric disorder noted on the examination report. The evidence also does not show that the Veteran ha PTSD or any other psychiatric disorder that manifested prior to service. That there was an assault prior to service is not clear and unmistakable evidence that PTSD manifested prior to service. Hence, the Veteran is presumed sound at the time of entrance into service and that presumption is not rebutted. See 38 U.S.C. § 1111 (2012). VA and private treatment records note that in February 2005 the Veteran discussed polysubstance abuse and endorsed anhedonia, variable sleep, decreased motivation and concentration, and rated his depression as six or seven out of ten and he occasionally feels like crying. In July 2009 the Veteran reported being molested by his cousin as a child, being HIV positive, and seeing his father's face when having flashbacks of past sexual trauma as precipitants to his depression. In February 2010 the Veteran again reported feeling depressed and apathetic since 2004, and stated he had gained 30 pounds as a result of an increased appetite believing his problems are a result of traumatic events he witnessed in the Army. In August 2010, the Veteran again discussed his childhood sexual abuse with multiple symptoms of PTSD related to that incident, as well as depression and polysubstance abuse. The Veteran reported that he acknowledged that he was gay after service, attempted to overdose on sleeping pills in 2004, and that his drinking and substance abuse began in service, but increased upon discharge. He also reported engaging in unsafe sex encounters which he believes led to his contracting HIV. He denied sexual assault or abuse in service, but reported PTSD related symptoms in relation to the childhood sexual assault, particularly re-experiencing of trauma memories, social avoidance, poor sleep, irritability and emotional numbing. The Veteran was afforded a VA examination in April 2011 wherein the examiner report noted the MST as one Criterion A stressor, sexual abuse the Veteran suffered at the hands of his cousin as another, and a car accident in service as being a third stressor. The examiner opined that the Veteran's PTSD is most likely due to his childhood sexual abuse and noted that the car accident as likely as not aggravated his PTSD symptoms. The examiner provided no further explanation. Of record is an August 2016 medical opinion completed by a private psychologist. The psychologist reviewed the claims file, interviewed the Veteran and reported that she believed it is at least as likely as not that the veteran has PTSD which is directly related to the MST reported in the record. The evaluation report noted that the Veteran also has Polysubstance Abuse Disorder which he developed secondary to his PTSD and a major depressive disorder also related to PTSD. The psychologist found that no clear evidence of any diagnosis of a psychiatric condition prior to enlistment, whether due to his childhood sexual trauma or otherwise. Additionally, the psychologist opined that it is at least as likely as not that the veteran's PTSD and major depressive disorder preexisted his HIV, and potentially was the cause of the behavior that lead to his contraction of HIV, thus the Veteran's psychiatric condition is not caused by his general medical condition as has been opined in the past. The psychologist concluded that it is at least as likely as not that the veteran's PTSD, polysubstance abuse disorder, and major depressive disorder are directly related to his in-service MST. He added that these three mental health conditions, taken together, are inextricably intertwined and have imposed very severe limitations of social and occupational functioning since at least April 2010 which have resulted in deficiencies in most areas, such as work, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideation; nearly-continuous depression affecting the veteran's ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting) and an inability to establish and maintain effective relationship. The evidence is at least in equipoise as to a nexus between the Veteran's PTSD and his active service, whether due to the in-service MST or the in-service MVA. The VA examiner accepted the in-service events as having occurred and given the August 1988 report of seeking treatment for feeling nervous and the Veteran's mother's statement, the Board cannot find evidence that the MST and MVA did not occur. The 2016 opinion relating his polysubstance abuse disorder and MDD to his PTSD is sufficient to establish service-connection for those disabilities. Based on the medical and lay evidence of record, the Board concludes that all elements have been met for service connection for PTSD, MDD, and polysubstance abuse. Hence, the appeal must be granted. ORDER Service connection for PTSD, MDD, and polysubstance abuse disorder is granted. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs