Citation Nr: 18144692 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 07-29 352 DATE: October 25, 2018 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The evidence as to whether the Veteran suffers from PTSD as a result of in-service personal assault is at least in relative equipoise. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army for a total of one month and nine days beginning in June 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In April 2011, the Board reopened and denied the Veteran’s claim for service connection for PTSD. He appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2011, the Court granted a Joint Motion for Partial Vacatur and Remand filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision and remanding the matter for readjudication. In December 2012, the Board remanded the matter on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. The Board again denied the appeal in June 2016. The Veteran appealed to the Court. In a November 2017 memorandum decision, the Court vacated the Board’s June 2016 decision and remanded the matter to the Board for further development and readjudication. The Court found that the Board had provided an inadequate statement of reasons or bases for its finding that there was no credible, probative evidence corroborating the Veteran’s alleged in-service assault. More specifically, the Court found that the Board had failed to assess the probative value of the Veteran’s medical entrance evaluation and discharge documents; provided inadequate reasons and bases for rejecting opinions provided by two private examiners; did not assess the potentially positive aspects of two other opinions; and did not assess the credibility and weight of the appellant’s “consistent” lay statements relating to the in-service assault. Service connection for PTSD. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Establishing 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). If 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. 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. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts that he has PTSD as a result of in-service assault. He has been diagnosed with PTSD. The outcome of the case turns on whether there is sufficient evidence that the in-service assault occurred. In multiple lay statements, the Veteran has described an assault he experienced in service. He has stated that he was attacked and sexually assaulted by two men, who were later court martialed. He says that he reported the incident, and a complaint was filed, but he received no medical treatment. He maintains that he was then sent to what he called “motivational camp,” where he was further mistreated by his superiors. After a month of service, he was discharged for having a negative attitude and lack of motivation. The evidence includes lay statements from the Veteran’s sister. She has asserted that the Veteran’s behavior was different when he returned from service. Prior to service, he was jovial; but he returned sullen and depressed. She also reiterated the Veteran’s assertion that he was assaulted in camp. Furthermore, she stated when their mother went to pick up the Veteran, he was badly bruised with a black eye and swollen nose. The record reflects that multiple attempts have been made to verify the Veteran’s stressor. However, there is nothing in the Veteran’s service records to corroborate his report of an assault. Further, the Joint Services Records Research Center (JSRRC) has indicated there is no evidence of a court martial, the Veteran’s report of the incident, or a record of the two soldiers. In addition to the lay statements, the evidence contains multiple medical opinions relating to the Veteran’s reported in-service stressor. In December 2003, a VA doctor noted that he was originally dismissive of the Veteran’s claim because of his psychiatric history. The Veteran had a long history of mental health treatment for schizophrenia, including suffering from delusions. Nevertheless, the doctor determined after reviewing the record that the Veteran had a “bona fide claim for service connected PTSD.” Similarly, another VA doctor noted in January 2004 that the Veteran demonstrated behavior which led him to believe the Veteran had been seriously abused in service. The doctor also noted that the Army basic trainers would not have recognized that the Veteran’s poor behavior was due to his psychiatric impairment. In February 2007, another VA examiner noted that though initially skeptical of Veteran’s purported in-service assault, after speaking to Veteran and Veteran’s sister, he was convinced. The examiner also reviewed the Veteran’s records in coming to a decision. The examiner wrote “I now feel he was traumatized in the Army. I cannot say whether the experience was the cause of psychiatric illness, or whether it exacerbated a preexisting condition. The sister’s report of his personality in high school suggest the Army trauma caused the psychiatric illness.” The record also contains a private opinion from September 2012. The doctor found the Veteran gave consistent reports regarding the in-service assault despite his fluctuating reports of other symptoms. After her review of the record and speaking to the Veteran, she concluded that “it [was] clear that he experienced the onset of significant mental health symptoms and a decline in basic ability to function following his traumatic experiences during boot camp in 1974.” The doctor also opined that the Veteran’s primary diagnosis was PTSD and noted he suffered from nightmares and flashbacks. The Veteran underwent a VA examination in November 2013. The VA examiner determined that the Veteran did not suffer from PTSD, but had schizoaffective disorder. The examiner also concluded that the record did not support the Veteran’s report of an in service assault. The VA examiner noted the Veteran’s service records contained no report of an assault and his personnel records indicated the Veteran had a negative attitude and lacked motivation. The VA examiner also noted the Veteran reported a tumultuous childhood where he witnessed domestic violence and was teased by his siblings and peers. Ultimately, the VA examiner determined the Veteran’s difficulties in service could suggest an in-service trauma, but could also have been caused by his history of witnessing and enduring abuse, difficulty adjusting to service, or any other change. In June 2016, another private doctor opined that the Veteran’s PTSD was due to in-service assault. The doctor noted that the Veteran did not have any diagnosis of malingering; nor was there an indication he was manipulating the health system. The doctor also noted that it was not surprising there was no record of the assault because at that time male on male sexual assault was not discussed. Nevertheless, there was a clear impact on the Veteran’s behavior after the assault. Finally, the record contains an opinion from the Veteran’s current VA doctor. The doctor opined the Veteran had been assaulted in the military because he was functioning well during the 15-day period prior to the assault, he reported the assault which resulted in disciplinary action, and he related the events in a manner consistent with a factual and true account. The VA doctor also based his opinion on his prior dealings with patients whom experienced sexual trauma. He concluded the Veteran’s report “[did] not have the characteristic of being falsified.” Thus, he opined the Veteran’s in-service assault more likely than not contributed to the development of schizophrenia. The Board has considered the medical and lay evidence of record. The Board acknowledges the lack of corroborating evidence in the Veteran’s service records to support his report of an assault. Based on the totality of the evidence, however, the Board finds the Veteran’s report credible. His account of the in-service assault has remained unchanged over time and multiple examiners have endorsed the account as credible. Under the circumstances, the Board finds that the criteria for an award of service connection for PTSD have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. The appeal is granted. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel