Citation Nr: 18142882 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 11-10 052 DATE: October 17, 2018 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Service connection for a right knee disability is remanded. FINDING OF FACT The Veteran has a current diagnosis of PTSD; medical evidence links the Veteran’s current PTSD symptoms to in-service military sexual trauma (MST); and there is credible supporting evidence of the Veteran’s reported MST stressor. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD are met. 38 U.S.C §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1974 to January 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2014, the Board remanded the Veteran’s claims for additional development. 1. Service Connection for PTSD. The Veteran states that she was raped during her Navy service following a right knee injury. See September 2009 Claim. She argues that the patterns of behavior noted in her service and medical records support her claim, including her multiple unauthorized absences (UAs) and her post-separation substance abuse and homelessness. See March 2011 VA Form 9; September 2018 Appellant Brief. The July 2014 Board remand expanded and recharacterized her claim as seeking entitlement to service connection for an acquired psychiatric disorder, to include PTSD related to an in-service personal assault. See July 2014 Board Remand. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a Veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). The regulations governing PTSD provide that where a claim is based on an in-service personal assault, evidence from sources other than the Veteran’s 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. 38 C.F.R. § 3.304(f)(5). The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting “medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated.” See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272 (1999) (rejecting the requirement that “something more than medical nexus evidence is required for ‘credible supporting evidence’” in personal assault cases). The Veteran reported that during her active service, she went to sick bay after her right knee was struck by a rope, and that the medic there gave her pills that caused her to become confused and lose consciousness. She stated that she later realized that she had been raped. The Veteran, who was seventeen at the time, reported that she was confused and wanted to run away. She stated that she went drinking, missed her ship’s movement, and was reported UA before later surrendering. The Veteran reported that she remembered a helicopter ride and being treated for her knee injury in San Francisco, and that she was then assigned to a new ship. She stated that she was later discharged after writing her Captain a letter “looking for help.” See September 2009 VA Form 21-4138; March 2018 Veteran Statement. The Veteran’s service records show no disciplinary actions until she was reported UA on May 19, 1975. She surrendered on June 11, 1975. See Personnel Records. She was treated for right knee pain on June 18, 1975, at a Navy facility in San Francisco, and a treatment note on that date states that “Pt. c/o pain in R knee x1 month due to being struck w/ rope while on ship.” See Service Treatment Records (STRs). The Veteran was subsequently assigned to a new ship, and in December 1975 she again went UA for five days before surrendering. Upon her return, the Veteran wrote a letter to her commanding officer stating that she had become aware of homosexual tendencies since her enlistment. A report of an evaluation that the Veteran was provided after surrendering shows that no psychiatric evaluation was performed. She was discharged later that month under honorable conditions due to unsuitability. See Personnel Records; DD Form 214N. The Veteran was referred to VA mental health services in June 2008 after a positive MST screen by her VA primary care physician. Her initial mental health consultation occurred in August 2008, but her treatment was interrupted when she was incarcerated. Following her release, in August 2010 her VA psychiatrist diagnosed her with several acquired psychiatric disorders, including PTSD related to MST and childhood trauma. The Veteran has continued to receive mental health treatment through the present, and her treatment notes indicate that she has consistently reported the details of her in-service assault. See VA Treatment Notes. The Veteran submitted a statement in March 2018 indicating that her sister would write a letter describing when the Veteran broke down while on leave and told her about being assaulted. See March 2018 VA Form 21-0781a. The Veteran’s sister, B.H., submitted a statement explaining that after the Veteran returned home from “over seas,” she broke down and told her about being raped by a medic in the infirmary after a rope struck the Veteran’s knee. See August 2018 B.H. Statement. A VA Decision Review Officer called the Veteran in April 2018 to confirm the timeline of events reported by the Veteran. The Veteran confirmed that she went to the infirmary after being hit by a rope, as she could hardly walk. See April 2018 VA Form 21-0820. The Veteran presented for a VA psychiatric examination in June 2018. The examiner diagnosed her with several disorders, including PTSD, and noted that her psychiatric symptoms were primarily due to her PTSD. The examiner indicated that the Veteran’s PTSD stressors included both childhood sexual trauma and military sexual trauma, and that both of these stressors supported her PTSD diagnosis. The examiner opined that the Veteran clearly had symptoms of PTSD related to her childhood abuse, but that the examiner could not state whether the Veteran’s reported in-service assault occurred without resorting to speculation, as the Veteran’s report of her assault was inconsistent with her service records. Notably, the examiner stated that the Veteran reported that she was assaulted before her UA between May 19 and June 11, while her STRs show that “[h]er knee injury was June 18… which was after she returned from her unauthorized leave.” In a July 2018 addendum the examiner noted that “[t]his is important, as [the Veteran] stated that she was assaulted after this injury, which lead to her unauthorized leave. However, her unauthorized leave dates were prior to this injury.” See June 2018 VA Psychiatric Examination Report and July 2018 Addendum. The Board concludes that the Veteran meets the criteria for service connection for PTSD resulting from an in-service personal assault. 38 U.S.C. §§ 1110, 1131, 1154; 38 C.F.R. § 3.304(f). The Veteran has a current diagnosis of PTSD that has been linked to her in-service personal assault by medical evidence, as a VA psychiatrist diagnosed her with PTSD and identified her MST as a stressor in August 2010. The Board notes that the August 2010 psychiatrist’s opinion, standing alone, is sufficient to meet the requirements of 38 C.F.R. § 3.304(f)(5) and provides a medical nexus to support the Veteran’s PTSD claim. See Menegassi, 683 F.3d 1379; Patton, 12 Vet. App. 272. Moreover, the Veteran’s claim is corroborated by service records showing her deterioration in performance, as well as the statement from the Veteran’s sister stating that the Veteran told her that she had been raped not long after the event. See 38 C.F.R. § 3.304(f)(5) (listing deterioration in work performance and statements of family members as examples of acceptable corroborating evidence in personal assault cases). Critically, the Board finds that the Veteran’s description of the assault is consistent and is supported by credible evidence. The Board observes that the sole reservation expressed by the June 2018 examiner was that the timeline of the Veteran’s reported assault is inconsistent with her service records. However, a careful review of her service records demonstrates that this is not the case. The Veteran has consistently reported that she was on her ship at the time she was injured and then assaulted, that she subsequently went UA, and that she was later treated in San Francisco for knee pain. See September 2009 VA Form 21-4138; March 2018 Veteran Statement. While the Veteran’s STRs show that she was treated for her knee injury on June 18, 1975, the note also indicates that her pain had been ongoing for one month, supporting her claim that her knee injury and subsequent assault occurred before her May 19, 1975 UA. Furthermore, that treatment note was recorded in a San Francisco facility, yet it indicates that she had been struck while on a ship, which is again consistent with the Veteran’s report that her injury occurred prior to her UA. See September 2009 VA Form 21-4138 (reporting knee injury, followed by assault, followed by knee treatment in San Francisco). Moreover, the Board finds that the June 2018 VA Examination Report and Addendum show that the examiner’s only reservation as to whether a personal assault occurred was her mistaken belief that the Veteran’s reported timeline of her personal assault was inconsistent. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (stating it is “the responsibility of the trier of fact fairly to... draw reasonable inferences from basic facts to ultimate facts”); Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.”). Accordingly, the Board finds that the examiner’s opinion supports the Veteran’s claim and concludes that the Veteran is entitled to service connection for PTSD. The Board acknowledges the absence of contemporaneous documentary evidence recording a personal assault. The absence of positive evidence, by itself, does not weigh against a claim for direct service connection. While the regulations governing claims for PTSD impose additional requirements not applicable in other service connection cases, including additional evidentiary requirements, these additional requirements do not change how the finder of fact weighs the evidence of record once the additional requirements are satisfied. Indeed, the facts of this appeal underline the need for the personal assault exceptions to the general PTSD evidentiary requirements, as the attacker that the Veteran identified would have also been responsible for recording any treatment in her STRs, and would have had a strong incentive to not do so. REASONS FOR REMAND 2. Service connection for a right knee disability is remanded. The May 2018 VA examiner’s opinion is inadequate. Here, although there is no notation of a right knee disability on the Veteran’s service entrance examination, the Veteran herself concedes a right knee disability prior to active duty, which is supported by other medical evidence of record, including a report of medical history accompanying her entrance examination report noting removal of right knee cartilage prior to service. See November 1974 Report of Medical History; March 2011 VA Form 9; May 2018 VA Knees Examination Report. Thus, there is clear and unmistakable evidence of a right knee disability prior to service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Accordingly, the burden is on VA to establish by “clear and unmistakable” evidence that the pre-existing right knee disability did not increase in severity during service or that any increase in severity was due to the natural progress of the disease. Id. If that burden is not met, the claim becomes one for direct service connection, with a presumption that the Veteran did not have a right knee disability prior to service. Here, the May 2018 VA examiner noted “there was no objective medical evidence that this condition was aggravated (permanently worsened beyond its natural progression) during active service.” As the clear and unmistakable standard is not employed, and the examiner inappropriately relies on a lack of objective medical evidence, an addendum opinion is needed on remand. Accordingly, this issue is remanded for the following: Provide the claims file to a VA examiner other than the May 2018 VA examiner for preparation of an addendum opinion. No additional examination of the Veteran is needed, unless the examiner determines otherwise. Following review of the claims folder the examiner should respond to the following inquiries: (a) The Board finds that the pre-existing right knee disability increased in severity during active service, as the Veteran competently and credibly reported in a June 1975 STR increasing right knee pain and instability over the prior month after her right knee was struck by a rope. With this concession in mind, please opine as to whether there is “clear and unmistakable (obvious, undebatable)” evidence that such increase in disability was due to the natural progress of the disease. (b) If the answer to question (a) is no, please consider the Veteran sound with respect to the right knee at service entry, and opine as to whether it is at least as likely as not (50 percent or better probability) that her right knee disability had its onset in service or is otherwise related to service, to include as a result of the May 1975 rope injury and subsequent complaints of right knee pain and instability in the STRs. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel