Citation Nr: 18147077 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-16 384 DATE: November 2, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, as due to military sexual trauma (MST) is granted. Entitlement to service connection for a sleep disorder is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his acquired psychiatric disorder, to include PTSD and major depressive disorder, is at least as likely as not related to MST. 2. The preponderance of the evidence is against finding that a sleep disorder began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f). 2. The criteria for service connection for a sleep disorder are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). PTSD and Depressive Disorder Service connection for PTSD requires medical evidence of a diagnosis; 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 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. 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. 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 posttraumatic stress disorder claim 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. The Veteran asserts that an acquired psychiatric disorder was incurred secondary to military sexual trauma that occurred during service. As a preliminary matter, the Board notes that the appeal for PTSD has been recharacterized as a claim for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board concludes that, resolving doubt in the Veteran’s favor, the Veteran has a current diagnosis of PTSD that is related to an in-service event. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The first element of service connection is met. A January 2014 VA examination documents current diagnoses of PTSD and major depressive disorder. The second element of service connection requires corroboration of the claimed stressor. After resolving doubt in the Veteran’s favor, the Board finds that the evidence establishes that the claimed MST occurred. Service records do not document any complaints or reports of MST. The Veteran’s August 1976 and August 1979 reports of examinations and medical history at entrance and separation likewise do not note any psychiatric symptoms. Additionally, personnel records do not indicate that the Veteran exhibited any behavioral changes after the reported MST. However, the lay evidence of record competently and consistently supports that MST occurred during service. Prior to the appeal period, in October 2012,the Veteran reported to a mental health provider that he was sexually abused during shellback initiation. In November 2013 and September 2018, the Veteran reported that during a shellback initiation, he was hit with a fire hose and sexually assaulted after his genitals were greased. He also reported speaking about the incident with a chaplain, but was told to get over it. In September 2018, the Veteran’s ex-wife reported that the Veteran’s behavior changed during service, and stated that the caring man she once knew had become violent, jealous, and completely insecure. The record contains competing medical evidence on whether MST occurred. A January 2014 examiner opined that some of the Veteran’s current symptoms are consistent with the stressors experienced during service. An August 2018 evaluation by E.Z. noted that the period of time in which the incident occurred, the approval of the commanding officers, and the occurrence of the incident onboard a ship were barriers that naturally resulted in few in-service markers. She opined that the following were sufficient markers: a Navy publication indicating that shellback initiations were an established tradition that were previously painful, embarrassing, and harrowing; service records showing that the Veteran underwent a shellback initiation; and the Veteran’s statements. In contrast, a March 2014 examiner opined that the record did not support the occurrence of an MST, and commented there were no markers (or sufficient evidence of markers) in service to support the Veteran’s assertion. However, she also stated that though no markers exist, the Veteran’s VA records and recent VA examination attribute his PTSD and major depressive disorder to military and, thus, the Veteran’s report of MST/harassment is at least as likely as not sufficient to support a diagnosis of PTSD. It is unclear whether the March 2014 examiner considered the lay evidence of record. The Board finds that the medical evidence of record is at least in equipoise on whether MST occurred in service. The January 2014 examination did not describe any MST markers with specificity, the March 2014 examiner noted that the record did not contain sufficient evidence of markers in service, and the August 2018 opinion explained why few service markers were present. Of note, the lay evidence of record has been competent, credible, and consistent. As evidence from sources other than the Veteran’s service records may corroborate the claimed MST stressor, the Board will resolve doubt in the Veteran’s favor and find that the second element of service connection has been met. The third element of service connection requires evidence of a nexus between the reported stressor and the current diagnoses. Though the record contains competing medical opinions, the preponderance of the evidence is in support of a medical nexus between the reported MST and the Veteran’s PTSD and major depressive disorder. A January 2014 VA examiner opined that the Veteran’s PTSD and major depressive disorder are at least as likely as not caused by or a result service. She commented that the Veteran had no pre-existing mental health diagnoses; reported childhood abuse that likely made him more susceptible to future traumatic events; and has some current symptoms consistent with the reported stressors. A March 2014 examiner indicated that no markers for MST exist, but the Veteran’s reports of MST are at least as likely as not sufficient to support a diagnosis of PTSD. Finally, in August 2018, psychologist E.Z. opined that it is at least as likely as not that the Veteran’s PTSD and major depressive disorder were related to his service. She remarked that there were no events other than MST that would better account for the Veteran’s current symptoms or provide a competing explanation for their severity and consistency over time. Additionally, E.Z. considered the impact of the Veteran’s childhood sexual abuse, but noted that the Veteran did not describe feeling fearful, feeling threatened, persistent avoidance, or reexperiencing the abuse. E.Z. also discussed the Veteran’s ex-wife’s statement describing the Veteran’s behavioral changes. In sum, there is evidence that the Veteran’s PTSD and major depressive disorder is related to MST. Accordingly, the claim for service connection is granted. Sleep Disorder The Veteran contends that he has a sleep disorder related to service. The Board concludes that, while the Veteran has a diagnosis of obstructive sleep apnea, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The first element of service connection has been met as VA treatment records indicate that the Veteran has a diagnosis of sleep apnea. However, the second element of service connection has not been met as the evidence does not establish an in-service injury, event, or disease. Service records do not document any complaints or reports of sleep disturbances. The Veteran’s August 1976 and August 1979 reports of examination and medical history at entrance and separation likewise do not note any trouble with sleeping. Likewise, the lay evidence of record does not indicate that a sleep disorder was incurred in or is otherwise related to service. Of note, the Veteran has not described how his sleep apnea is related to service. While the Veteran believes his sleep disorder is related to service, the Board reiterates that the preponderance of the evidence weighs against finding that an in-service event occurred. The evidence is not in equipoise and, accordingly, the benefit of the doubt doctrine does not apply. The claim for service connection for a sleep disorder must be denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Vang, Associate Counsel