Citation Nr: 18145000 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-19 982A DATE: October 25, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) based upon an in-service personal assault is granted. FINDINGS OF FACT 1. Because the Veteran’s service enlistment examination does not note a preexisting disability of PTSD or other psychiatric diagnosis, the Veteran is presumed to have entered active service in sound condition, and the presumption of soundness has not been rebutted. 2. Evidence corroborates the Veteran’s account of a stressor incident based on an in-service personal assault. 3. The record contains a PTSD diagnosis made in accordance with the Diagnostic and Statistical Manual of Mental Disorders related to the claimed in-service stressor. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD based upon an in-service personal assault have been met. 38 U.S.C. §§ 1111, 1131; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1988 to July 1992 and from November 1995 to May 2000, with subsequent service in the U.S. Naval Reserves. Although the Veteran’s substantive appeal was deemed untimely in a July 2015 determination, his appeal was reactivated following his August 2015 response that he was between addresses and did not have access to his previous mailbox. See February 2016 deferred rating decision. Given the subsequent certification of the appeal to the Board, the Veteran was led to believe that the issue was in appellate status. As VA has taken actions to indicate to the appellant that the above issues were on appeal, and it took no steps to close the appeal, the requirement that there be a substantive appeal is deemed waived. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Further, the Veteran was previously denied service connection for PTSD in a May 2007 rating decision, and the RO treated his current claim as one to reopen following a previous final denial. See June 2013 rating decision (considering the claimed reopened). Generally, once an issue is finally denied, it may be reopened upon the submission of new and material evidence. However, after the May 2007 rating decision, relevant official service department records that existed, but had not been associated with the claims file, were received. See October 2007 SHARE print screen (noting the transfer of two jackets of service treatment records transferred to the Regional Office on May 1, 2007); July 2009 deferred rating decision (“Additional S[ervice] T[reatment] R[ecords} were received 10/3/17 with no subsequent rating done.”) These service personnel records, which existed but had not been obtained at the time of the prior rating decision in May 2007 are relevant because they note possible psychological symptoms which occurred during the Veteran’s service. Accordingly, the claim for entitlement to service connection for PTSD will instead be reconsidered on the merits as opposed to a claim to reopen. See 38 C.F.R. § 3.156(c)(i) (2017). As a final introductory matter, the Board notes that the Veteran filed a claim for an acquired psychiatric disorder other than PTSD, claimed as depression, which was bifurcated and separately adjudicated by the agency of original jurisdiction (AOJ) in a May 2017 rating decision. The Veteran did not appeal the denial of service connection for depression, so the bifurcated issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD will not be further addressed. Entitlement to service connection for PTSD, including as due to an in-service personal assault. The law provides, “[E]very Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.” 38 U.S.C. § 1111. Here, the Veteran’s entrance examinations to both of his periods of active duty do not “note” the presence of a psychiatric disability upon entry into active duty service. Rather, a psychiatric clinical evaluation was found to be “normal,” and nothing further was listed in the sections entitled “Notes and Significant or Interval History” of the relevant examination reports. Thus, the presumption of soundness applies to the Veteran in this case. Moreover, the mere evidence suggesting that he reported a “history of physical and sexual abuse in childhood” does not rise to the level of clear and unmistakable evidence of to support the premise that a preexisting disorder was present upon entry into active duty or that it was aggravated by service in order rebut the presumption of soundness. See November 2006 VA treatment report (conducting his initial mental health psychosocial assessment, and also referencing alternative stressful incidents, such as a reported physical attack that occurred during the military). In fact, his PTSD diagnosis was not predicated on these childhood events, and there is no indication that the Veteran had any psychological symptoms attributable to a preexisting disorder prior to his claimed in-service personal assault aboard the USS Abraham Lincoln. As such, VA has not met its burden to rebut the presumption of soundness. 38 U.S.C. § 1111. Accordingly, the Board will proceed to examine whether the Veteran is entitled to benefits under a theory of direct service connection. Effective August 4, 2014, VA promulgated an interim final rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated DSM references by deleting references to the DSM-IV and DSM-IV Text Revision and replacing them with references to the updated version, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (hereinafter DSM-5). 79 Fed. Reg. 45,093-02 (Aug. 4, 2014). This rule expressly states that its provisions do not apply to claims that have been certified to or were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit prior to August 4, 2014. Accordingly, because the Veteran’s appeal was not certified to the Board until September 2018, the DSM-5 version applies in this case. Three general requirements for establishing service connection for PTSD are outlined in 38 C.F.R. § 3.304(f). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 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 a veteran’s service records may corroborate the veteran’s 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. Id. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Id. 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. Regarding the first element of establishing service connection under 38 C.F.R. § 3.304, there is competent evidence establishing that the Veteran has been diagnosed with PTSD during the claim period. See, e.g. April 2017 statement from Dr. Costa (providing a diagnosis of PTSD); see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (“[A] clear (that is, unequivocal) PTSD diagnosis by a mental-health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor.”). Regarding the second element, there is sufficient evidence in this case to corroborate the Veteran’s account of a stressor incident based on an in-service personal assault. In this regard, the Board notes that an after-the-fact medical opinion can serve as a basis for corroborating an in-service personal assault, such as what was presented in Dr. Costa’s statement, which references a “military sexual trauma in 1997” as the reported stressor supporting the PTSD diagnosis. Here, the Veteran’s service personnel records also demonstrate a disciplinary episode after the claimed attack; he was cited for an unauthorized absence in October 1999, but had no disciplinary actions prior to the claimed attack. Significantly, the Veteran’s April 2000 report of medical assessment suggested that he suffered an injury or illness while on active duty for which he did not seek medical care, and that he had questions/concerns about his health. His May 2000 Report of Medical History further indicated that he had a past or current medical history positive for depression or excessive worry. The Board notes that the Veteran also sought treatment for depression in service in March 1999, in which he related “multiple life stressors,” to include financial and marital problems. This evidence is consistent with behavioral changes following the claimed in-service personal assault. Although the VA examiner who examined the Veteran in March 2012 noted that the AOJ had not yet developed the claim for a personal assault at that juncture, the VA examiner acknowledged that the “Veteran does report symptoms and presents in a manner suggestive of possible military sexual trauma/posttraumatic stress disorder.” In Menegassi v. Shinseki, 638 F.3d 1379, 1382, (Fed. Cir.2011), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that, “under § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated.” See also Patton v. West, 12 Vet. App. 272, 277 (1999) (holding that Moreau v. Brown, 9 Vet. App. 389 (1996) is not applicable to cases of alleged personal assault); see also 38 C.F.R. § 3.304(f)(5) (indicating that “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”). Notwithstanding the fact that the VA examiner ultimately concluded that a diagnoses of PTSD could not be supported at that time, the Board finds that there is sufficient credible corroborating evidence to establish the occurrence of the claimed in-service personal assault. The evidence also establishes a link between the Veteran’s PTSD diagnosis and the reported in-service personal assault, which is the final element needed to establish service connection for PTSD under 38 C.F.R. § 3.304. In this regard, the Veteran’s report of military sexual trauma was the sole stressor discussed in Dr. Costa’s letter establishing a diagnosis of PTSD, and it was the sole stressor discussed in the March 2012 VA PTSD examination. Under the benefit of the doubt rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-07 (1994). (Continued on the next page)   In light of the positive evidence regarding the occurrence of an in-service personal assault, a current diagnosis of PTSD, and a link between his current PTSD diagnosis and the in-service personal assault, service connection is granted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Gielow, Counsel