Citation Nr: 1803376 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-32 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1974 to June 1974 with additional service in the Air Force Reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In September 2015, the Board remanded the claims for further development. Specifically, the Board remanded the claims for clarification of the Veteran's exact dates of ACDUTRA and INACDUTRA and to provide the Veteran the appropriate notice as to how to substantiate a claim for TDIU. That development having been completed, these claims are once again before the Board. The issue of entitlement to a total disability rating based on individual unemployability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The competent evidence of record is at least in equipoise as to whether the Veteran's diagnosed PTSD is related to active service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA As the Board's decision to grant service connection for PTSD herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304 (f) (2017). If a PTSD claim is based on military sexual trauma or personal assault in service, evidence from sources other than the Veteran's 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. 38 C.F.R. § 3.304 (f)(5) (2017). 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. 38 C.F.R. § 3.304 (f)(5). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all of the evidence in the Veteran's VBMS files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim decided herein. III. Factual Background and Analysis The Veteran contends that she was the victim of military sexual trauma (MST). More specifically, the Veteran alleges, in essence, that she was exposed to two events which led to her current PTSD. She first contends that in June 1985, she was sexually harassed by a non-commissioned officer for several days during her two weeks of yearly training who forcefully touched her and held her at gunpoint. Secondly, she contends that in the 1970s, she underwent a painful gynecological exam during which a male nurse put a thermometer in her genitals and left her waiting in her gown for several hours for the examination results. The Veteran's official service department records show that the Veteran served on active duty from February 1974 to June 1974. An ANG/USAFR Point Credit Summary shows the Veteran served on her annual tour in June 1985. An August 2009 report, authored by Dr. D.L., notes diagnoses of major depression and PTSD. The Veteran was seen monthly secondary to MST leading to PTSD. Numerous psychiatric examination notes dated from April 2010 through March 2015, prepared by private psychiatrist, Dr. G.H., reveal an Axis I diagnosis of chronic PTSD and recurrent Major Depressive Disorder. The psychiatrist determined that the PTSD was related to the sexual assault that the Veteran experienced while in the military. Specifically, a July 2011 report, authored by Dr. G.H., reveals that the Veteran had been under his psychiatric care since April 2010. The psychiatrist opined that the Veteran's diagnosis of PTSD was due to the sexual assault at knifepoint suffered while on active duty with the Air Force in May 1985. A report dated in August 2015, prepared by Dr. M.C., reveals that the Veteran met the diagnostic criteria for PTSD under DSM-5. The physician also opined that the PTSD was a result of her in-service military sexual assault. The physician first noted that the Veteran was repetitively sexually assaulted and harassed in 1985 which led to a precipitous behavioral and functional decline in the Veteran's performance and capacity to function, to include deterioration in her job performance, a deterioration of her marriage, and the development of defiant, irritable, and angry traits. More specifically, in a January 1985 performance report, it was noted that the Veteran was recommended for promotion as soon as possible; yet, in a January 1986 performance report, subsequent to the alleged assault, it was noted that there was a severe decline as the Veteran "sometimes makes a negative impression" on others as well as "arouses resistance." Additionally, the Veteran submitted a request to be transferred from one squadron to another, as indicated in a January 1986 Request for Authorization for Change of Administrative Order. The Veteran contends that her behavioral decline and request for a transfer are markers as envisioned by 38 C.F.R. 3.304(f)(5). Further, the Veteran reported that she officially divorced her husband in July 1987, after marrying him shortly before the assault. In an undated stressor statement, the Veteran stated that her marriage fell apart as a direct result of her assault. In addition to the service markers indicated above, the Veteran also submitted a November 2013 statement from a fellow service member, F.B., who served with her during the time that she claimed her assault at knifepoint had occurred. The statement reported that to the best of his recollection around or about May of 1985, there was something going on in the squadron that involved the Veteran and a Master sergeant. The service member further reported that he was told to stay clear of the Veteran since she was "a troublemaker and a liar." He further reported that although he did not know the Veteran well, she seemed upset and alone at the time. In January 2016, the Veteran was afforded a VA mental health examination. The examination report revealed findings of uncontrollable crying, suicidal ideation, irritability and anger, vigilance, extreme lethargy, lack of motivation to do anything, loss of interest in previously enjoyed activities, dissociation, difficulty speaking and interacting with others, and hearing voices and seeing things. The examiner identified the two stressors that the Veteran identified and determined that both stressors were adequate to support the diagnosis of PTSD. Yet, the examiner diagnosed the Veteran with Major Depressive Disorder with schizotypal personality traits and opined that such diagnosis began upon the death of the Veteran's husband in 2009. The examiner further opined that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-5 criteria, and the examiner determined that it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service event. By way of rationale, the examiner noted that the Veteran did not have any behavioral markers of MST in her available records and that she had not reported any symptoms unique to PTSD in her treatment sessions in the past year. Additionally, the examiner noted that the diagnosis of PTSD previously provided in the July 2015 report was erroneous and was based on self-report of a few symptoms associated with PTSD, but did not include objective testing and record review. To provide clarification on the Veteran's correct diagnosis and its etiology, the psychiatrist who wrote the August 2015 report was contacted in July 2017 to interview the Veteran again and review the evidence of record, to include the January 2016 report. The psychiatrist interviewed the Veteran in July 2017 and in August 2017 and reviewed the service records, medical records, lay records, and examination reports. In the August 2017 addendum report, the examiner confirmed the Veteran's appropriate diagnosis of PTSD with dissociative symptoms, with delayed expression. The psychiatrist noted that the Veteran met Criterion A-E by addressing that (A) the Veteran described the sexual assaults which occurred on three separate occasions and responded with intense fear; (B) the Veteran has physiological and psychological distress at exposure to cues; (C) the Veteran goes through extensive avoidance to prevent distressing memories, thoughts, and feelings of the trauma; (D) the Veteran has distorted cognitions about the cause of the traumatic event and the inability to remember an important aspect of the traumatic event; and (E) the Veteran has experienced the symptoms for over thirty years. In specifically addressing Criterion D, the psychiatrist noted that the Veteran had some confusion associated with the exact dates of when she was sexually assaulted. More specifically, the record reflects that the two-week period of ACDUTRA during which the Veteran's sexual assault took place actually occurred in June 1985, rather than in May 1985, as previously stated. The psychiatrist explained, "forgetting significant details of a stressful event is a specific sub-criterion of PTSD," so small inconsistencies such as this "do not in any way undermine the credibility of [the Veteran's] account of sexual assault." At the outset, the Board notes that this minor discrepancy does not detract from the veracity of the Veteran's report of military sexual trauma as the Veteran was only off by one month regarding an issue that took place years before. The psychiatrist also stated that the diagnosis of PTSD was unequivocal and that the Veteran had been treated at the VA medical centers for this exact diagnosis due to military sexual trauma. As further rationale, the psychiatrist explained that her dissociative episodes, nightmares, hypervigilance, distrust of men, irritability, and anger have clearly been documented in her treatment records and that such symptoms were entirely consistent with PTSD and were not explained by a diagnosis of Major Depressive Disorder as the January 2016 VA examiner had suggested. The psychiatrist explained that although there is crossover of symptomatology, Major Depressive Disorder is not characterized by nightmares, dissociative episodes, avoidance, and other symptoms that the Veteran exhibited. The psychiatrist also noted that the Veteran did not meet the criteria for a personality disorder. The psychiatrist also clarified the behavioral changes that occurred in the military by using the Veteran's lay statements of her being moved to a different working area. Service treatment records also indicate that the Veteran requested a change in her working area a few months after the claimed assault took place. The psychiatrist again opined that the Veteran suffers from PTSD due to an in-service assault. The psychiatrist also stated that the Veteran developed PTSD approximately six months after the assault and did not have any objective symptoms of PTSD or a psychiatric illness prior to her active duty service. The Veteran also submitted a statement dated in January 2016 from her boyfriend of seven years. The letter reveals that he has observed the Veteran spontaneously cry, feel dejected, and disassociate due to the emotion of the sexual assault that she experienced while in the military. After a review of the record, the Board finds that the evidence in this case is at least in equipoise with regard to whether the Veteran's diagnosed PTSD is related to her service. There is no dispute that the Veteran is competent to report symptoms of anxiety, depression, avoidance, and re-experiencing traumatic events, because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. The Board finds the Veteran's statements about her in-service sexual trauma and her current symptoms to be credible, as there is internal consistency, facial plausibility, and consistency with other evidence of record. The Veteran's assertions appear to be genuine, credible and consistent. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board has considered the evidence discussed above and finds that the Veteran has presented multiple factually consistent accounts in the clinical record of having been assaulted during service. As noted above, these accounts have been consistent since the time that the Veteran first sought mental health treatment. The Board is aware of the conflicting medical evidence as to whether the Veteran has PTSD related to active service. The January 2016 VA examiner contended that the Veteran does not have PTSD and that such was not related to military service, while a private psychiatrist contended in his August 2015 opinion and August 2017 addendum opinion that the Veteran indeed had a diagnosis of PTSD, that it was attributed to in-service military sexual trauma, and that service records indicate markers of sexual assault. Weighing the positive findings of the private psychiatrist against those of the VA examiner, the evidence is at least in relative equipoise as to whether PTSD is related to service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for PTSD due to military sexual trauma is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert supra. ORDER Entitlement to service connection for PTSD is granted. REMAND In light of the Board's grant of service connection for PTSD, the RO must assign in the first instance a disability rating and an effective date. Thereafter, the RO must reconsider whether the Veteran is entitled to a TDIU. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. After implementing the Board's grant of service connection for PTSD, reconsider the issue of entitlement to a TDIU. 2. If the benefit sought is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs