Citation Nr: 1803585 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-33 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder due to military sexual trauma. 2. Entitlement to service connection for tinnitus. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Booker, Associate Counsel INTRODUCTION The Veteran had active service from May 1980 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Resolving reasonable doubt in the appellant's favor she suffers from posttraumatic stress disorder due to service related military sexual trauma. 2. The preponderance of the evidence is against finding that the Veteran has tinnitus due to a disease or injury in service, and tinnitus was not compensably disabling within a year of the claimant's separation from active duty. CONCLUSIONS OF LAW 1. Posttraumatic stress disorder due to military sexual trauma disorder was incurred during the Veteran's service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2017). 2. Tinnitus was not incurred in or aggravated by service, and tinnitus may not be presumed to have been so incurred. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Acquired psychiatric disorder, to include posttraumatic stress disorder due to military sexual trauma. The Veteran contends that service connection is warranted for posttraumatic stress disorder due to in-service military sexual trauma. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b). Establishing service connection for posttraumatic stress disorder requires: (1) medical evidence diagnosing posttraumatic stress disorder in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the 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 claim for posttraumatic stress disorder 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Effective March 19, 2015, VA adopted as final an interim rule adopting the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The provisions of the final rule, however, apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. 80 Fed. Reg. 14308-09 (March 19, 2015); 79 Fed. Reg. 45093-99 (August 4, 2014). As this appeal was certified to the Board in November 2013 the provisions of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV) are for application. In March 2017, the Veteran testified under oath that she was the victim of military sexual trauma by fellow servicemembers, to include a master chief petty officer while attending "A school." She further asserts that while stationed at Marine Corps Air Station Yuma, Arizona she was subjected to daily verbal harassment of a sexual nature, and that she was the victim of a "date rape" by a Marine lieutenant. The record shows that the Veteran has been diagnosed with posttraumatic stress disorder due to military sexual trauma. While the record does not show that the Veteran reported the assaults or harassment to the Naval Criminal Investigative Service or a similar organization, a review of her personnel and service treatment record shows that the claimant received inservice psychological counseling following a claim of depression. Mental health records also show the Veteran suffered from alcohol dependence, and that she tested positive in a urinalysis for tetrahydrocannabinol while in-service, providing evidence of in-service stressors. Personnel records also show that while stationed in San Diego the appellant's performance marks generally fell in the 3.6 range, but while stationed at Marine Corps Air Station Yuma they frequently fell below 3.0 in several categories. The appellant was counselled due to these adverse performance evaluations while stationed at Marine Corps Air Station Yuma, and ultimately she was barred from reenlisting. Hence, given the change in her military performance there is credible evidence supporting the claim that the assaults occurred inservice. See 38 C.F.R. § 3.304 (f)(5). The record does contain inconsistent information regarding whether the Veteran was the victim of abuse prior to her military service. Still, the appellant was psychiatrically sound at enlistment, and the question in this case is whether the reported in-service stressors are sufficiently corroborated and if so, whether the current diagnosis of posttraumatic stress disorder is related to same. The mental health provider assigned to the Veteran during service described her as having a lifelong pattern of self-abusive lifestyle related to a feeling of low self-worth and related depression. The Veteran stated during her hearing, however, that she was sexually harassed by this mental health provider in that he subjected her to unwanted physical contact and hugging as part of her treatment. She received mental health treatment from this same therapist from August 1981 to April 1983. The appellant was ultimately diagnosed with and discharged due to a personality disorder. Personality disorders are not diseases within the meaning of applicable legislation governing the award of compensation benefits. Hence, as a matter of law the diagnosed personality disorder cannot be service connected, nor has the Veteran claimed entitlement to service connection for a personality disorder. 38 C.F.R. § 3.303 (c). The Veteran was afforded a VA psychiatric examination in July 2012 by a licensed psychologist. That examiner reviewed the Veteran's claims folder and diagnosed posttraumatic stress disorder caused by military sexual trauma. The examiner opined that it was at least as likely as not that the Veteran's record supports the occurrence of military sexual trauma, noting that according to medical literature, individuals with a personality disorder and/or substance abuse have a higher incidence of sexual assault; and therefore, the Veteran's emotional issues while in the military could have been associated with a personality disorder as a well as a military sexual trauma. The July 2012 VA examiner opined that she could not resolve the question of whether it was at least as likely as not that the Veteran's current posttraumatic stress disorder is the result of the military sexual trauma because of inconsistencies between her records and the information provided during the examination. The inconsistencies referenced, however, pertained primarily to the Veteran's pre-military history, including the nature of her upbringing and her arrest record. As such, the Board resolves the inconsistencies in the view most favorable to the Veteran. In May 2012, the Veteran's roommate D.H. submitted a statement explaining that the Veteran confided that she had been raped while in the military. D.H. stated that she witnessed the Veteran's hypersensitivity with regard to her "feelings of personal safety", and that she witnessed the claimant disintegrate emotionally and physically due to experiencing the traumatic event. The Veteran's friend E.A. also submitted a statement describing the appellant's current symptoms of inability to interact confidently with others in a group setting, inability to concentrate on a specific task, and crowd intolerance. A former co-worker and friend, T.S., submitted a statement describing the Veteran's social isolation, and inability to sleep for long periods, as well as restless sleep. Finally, the Veteran's submitted a statement from K.A., who attended a women's empowerment group at VA with the Veteran. K.A. stated that the Veteran "always had an answer for almost anything except when it came to male behavior." She described the Veteran as easily agitated and verbally aggressive, and "near physical" if the attendees did not agree with her position. According the K.A., the Veteran would sit on her hands to contain herself or wear dark glasses when she was withdrawn. K.A. described the Veteran as hyper-aroused in groups larger than four people. She stated that the Veteran was constantly looking around and that she sat with one eye on the back door. She witnessed the Veteran's increased difficulty in concentrating on tasks such as household chores, paying bills, or going to school. K.A. stated that the Veteran had "bad dreams" and shared that she was afraid to fall asleep due to what might occur. The Veteran was afforded another VA examination in July 2014 by an examiner who had been treating the Veteran since April 2014. Following review of the record and after conducting a review examination for posttraumatic stress disorder, the examiner opined that the Veteran met the diagnostic criteria for Axis I diagnoses of chronic posttraumatic stress disorder. In February 2017, a VA psychiatrist confirmed the Veteran's diagnosis of posttraumatic stress disorder, clarifying that the diagnosis was secondary to sexual assault in the military. The Veteran also met the diagnostic criteria for major depressive disorder, moderate to severe, recurrent. The conclusions were supported by adequate rationale and are considered probative. It is important to note that a claim for service connection need not be proven by clear and convincing evidence. Rather, the evidence need only be in equipoise. Accordingly, given the evidence of record in this case and the doctrine of reasonable doubt, entitlement to service connection is warranted for an acquired psychiatric disorder, to include posttraumatic stress disorder due to military sexual trauma. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding ... benefits."). Tinnitus. In addition to the laws and regulations governing entitlement to service connection discussed above, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection will be presumed for certain chronic diseases, including tinnitus, if manifest to a compensable degree within one year after discharge from active duty. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran describes experiencing constant white noise and high-pitches tones that come and go. She states that the onset was gradual, and attributes the condition to tinnitus which she argues was incurred by her military service. A review of the Veteran's service treatment records reveals no complaints, findings, or diagnoses pertaining to tinnitus. At her April 1983 separation examination the claimant's ears were clinically evaluated as normal and she denied a history of ear trouble. Similarly, an April 1983 audiological examination did not show a diagnosis of tinnitus. The post-service record shows that the Veteran does not meet the current disability requirement as a July 2012 VA examination found no objective evidence of tinnitus. The audiologist reviewed the Veteran's record and found that no data, report, complaint or description supported a diagnosis of tinnitus. Further, the audiologist opined that the course of noise-induced tinnitus shows its worst effects immediately after exposure that resolve over time, and that it did not occur or progress after separation from the noise source. Ultimately the audiologist opined that the Veteran did not have tinnitus caused by military service. The Veteran is not shown to have tinnitus due to service. The record preponderates against finding evidence of continuity of symptomatology from the time of service until the present, and there is no evidence showing that tinnitus was compensably disabling within a year of separation from active duty. There is no competent evidence linking a diagnosis of tinnitus to service. While the Veteran is competent to report ringing in the ears, the Board finds that the medical opinion of an audiologist who is specifically trained to diagnose and treat the disorder is of far greater probative value than the appellant's lay opinion. As such, the Board concludes that the preponderance of the evidence is against the claim. As such, service connection for tinnitus is denied. ORDER Entitlement to service connection for posttraumatic stress disorder is granted. Entitlement to service connection for tinnitus is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs