Citation Nr: 18148550 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-24 028 DATE: November 7, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT The evidence is at least in equipoise that the Veteran’s PTSD is related to in-service military sexual trauma (MST). CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for posttraumatic stress disorder have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to September 1986 in the United States Navy (Navy). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction of this matter is with the RO in Muskogee, Oklahoma. In a June 2015 rating decision, the RO indicated that they Veteran had submitted a request to reopen his claim for service connection for PTSD on March 2, 2015. However, the evidence received on March 2, 1015, following the August 2014 rating decision related to previously unestablished facts necessary to substantiate the claim and raised a reasonable possibility of substantiating the Veteran's claim. Accordingly, the Board finds that the August 2014 rating decision did not become final because new and material evidence was received within one year of issuance of the August 2014 rating decision. 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 59 F.3d 1362, 1367-68 (Fed.Cir. 2011). Entitlement to service connection for posttraumatic stress disorder (PTSD). In the formal claim that he filed in February 2014, the Veteran requested service connection for a “mental disorder…related to PTSD.” He contends that his psychiatric disability is related to military sexual trauma (MST) to which he was subjected repeatedly while serving in the Navy on the USS Detroit. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) 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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD requires specific findings. These are: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f). The PTSD diagnosis must comply with the criteria set forth in the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5). See 38 C.F.R. § 3.304(f); see also 38 C.F.R. § 4.125(a). The Veteran’s claim is based on allegations of in-service personal assault involving sexual approaches and, following from those, threats and harassment. In cases involving PTSD due to alleged personal assault, the absence of documentation in service records is not unusual. See, e.g., AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013); Patton v. West, 12 Vet. App. 272 (1999). The claimed stressors must then be corroborated by evidence other than the veteran’s own testimony or the diagnosis of PTSD. 38 C.F.R. § 3.304(f)(5); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The occurrence of an event alleged as the stressor upon which a PTSD diagnosis is based, as opposed to the sufficiency of the alleged event to cause PTSD, is an adjudicative determination, not a medical one. See Zarycki v. Brown, 6 Vet. App. 91 (1993). VA regulations provide that 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 stressors. 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; 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 a 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). In a PTSD case in which the alleged in-service stressor is personal assault, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether the evidence indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). Once it has been determined that all relevant evidence has been obtained, the Board must assess the credibility, and the probative value, of the proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). In assessing the credibility of evidence, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted for the claim. Caluza, 7 Vet. App. at 511. VA must assess whether the evidence of record supports the claim or is in relative equipoise, with the claimant prevailing in either event, or preponderates against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to a determination, the benefit of the doubt is given to the claimant. Gilbert, 1 Vet. App. at 53. In an October 2013 VA Form 21-0781a, Statement in Support of Claim for PTSD Secondary to Sexual Assault, the Veteran related that beginning in March 1985, he experienced ongoing MST consisting of unwanted sexual advances, requests for sexual favors, and harassment by other male sailors while serving on the USS Detroit. He indicated that in consequence, he engaged in substance abuse with alcohol and drugs and developed increased disregard for both military and civilian authority. In a VA Form 21-0781a, Statement in Support of Claim for PTSD Secondary to Sexual Assault, submitted in June 2014, the Veteran indicated by selecting categories listed on the form how his behavior changed because of in-service MST. He attributed to himself the behaviors of visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests for a change in occupational scenes or duty assignment; increased use of leave without an apparent reason; changes in performance and performance evaluations; episodes of depression, panic attacks, or anxiety without an identifiable cause; increased or decreased use of prescription medications; increased use of over-the-counter medications; substance abuse such as alcohol or drugs; increased disregard for military or civilian authority; obsessive behavior such as overeating or undereating; tests for HIV or sexually transmitted diseases; unexplained economic or social behavior changes; and breakup of his primary relationship. In a letter accompanying the June 2014 Statement, the Veteran related that in 1985 while serving on the USS Detroit, he was approached by other male sailors for sexual favors and harassed by male sailors whom he believed to be homosexual. He stated in the letter that he was traumatized emotionally for life, that he changed from outgoing and friendly to more secluded and withdrawn, and that he was currently in treatment for a depression disorder. He stated that he did not file a report with the Navy and told no one about what was happening to him at the time except his older brother back home. In a VA Form 21-0781a, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Assault, submitted in February 2016, the Veteran indicated that while serving on the USS Detroit, he walked in on a sexual encounter taking place between two other male sailors who threatened him with bodily harm if he reported them. (He added that the two sailors were discharged for misconduct a few weeks later.) He indicated that the incident took place in 1983 (not 1985, as he had previously stated and states in later documents). He recounted that he was approached or propositioned two or three times each week to have sex with other men. He averred that he had never been exposed to such behavior before joining the Navy. He stated that he was demoted and was suffering during his Navy service without realizing what was happening to him. His service medical records do not show that he complained of MST or that any medical professional found or suspected that he experienced MST. The report of the medical history taken at separation noted “piles or rectal disease,” that existed prior to entrance (“EPTE”) and was manifested during service only rarely, and of VD in the form of gonorrhea two years before. The report indicated that the Veteran denied a history of frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous troubles of any sort. However, his military personnel records reflect that up until January 1984 he received ratings of 3.6 and 3.8 for military behavior. In February 1984, his ratings for behavior dropped to 2.0. Post-service medical records show that during the period 2013-15, the Veteran was followed for mental health at a VA local outpatient clinic (part of the Durham, North Carolina VA Medical Center network). A June 2013 primary care nursing note identifies his active problem as “depressive disorder NEC” and states it had improved with Prozac. A September 2013 nursing intake and interview note reflects that the Veteran received positive screenings for PTSD and depression and reported that he felt depressed and hopeless, having little interest or pleasure in doing things. The note shows that he said he had experienced MST in the past. An alcohol screening test was reported as negative. A depression screening test was reported as positive. A September 2013 primary care initial evaluation note reflects that the Veteran exhibited a mild depressed mood but was not suicidal. A September 2013 primary care nursing note confirms a positive screening for depression. The note shows that the Veteran said he had experienced MST in the past. October 2013 records show that the VA clinic contacted the Veteran twice by telephone and invited him to join its military sexual trauma program for males but he was not sure he wanted that and postponed his decision. An October 2013 note states that his depression had improved with Prozac. A January 2014 primary care note shows that his problem list included depressive disorder NEC and he had requested different medication for his depression. A February 2014 mental health consult record shows that he was diagnosed on Axis I with a depressive disorder NOS, cocaine abuse in sustained remission, and alcohol abuse. The record indicates he reported having depression and some trouble sleeping at times as well as anxiety issues and that he had been off alcohol and drugs (including crack), which he said had used heavily, for about a year and three months. The record reflects that he told the social worker who interviewed him that he had experienced MST during service in the form of unwanted sexual advances from other male sailors, but said he had no physical contact with those sailors and had to get angry in refusing them. The record indicates that he admitted creating discipline problems during service (shoplifting a Walkman from the PX, drugs, and disobeying a chief petty officer), that his rank had been reduced, and that ultimately the character of his discharge had to be upgraded (apparently, from what it had been first). The social worker observed in the record that his condition was difficult to assess because of his vague reporting of symptoms and history of substance abuse but that he agreed to return for continued assessment. It was noted that he had first started Prozac in September 2013 and was taken off Prozac in January 2014 (when he began taking medication for pain). A primary care note dated in April 2014 documents assessments of depression, not suicidal, with the recommendation that his Prozac be increased, and of insomnia for which Trazadone at bedtime was prescribed. An April 2014 social work note shows that the he reported having trouble sleeping and resting and that he was prescribed Trazadone; the note contains an assessment of depression NOS. In March 2015, VA received a letter from the Veteran’s brother stating that the Veteran had confided in him that while he (the Veteran) served on the USS Detroit (specified in the statement as 1983-86), the Veteran told him that he was receiving unwanted sexual advances from other male sailors, was being harassed for refusing them, and did not want to tell anybody about those things because of the shame. The Veteran’s brother averred that during that time, he noticed that the Veteran’s personality was changing from outgoing to “more secluded.” A VA Post Traumatic Stress Disorder Disability Benefits Questionnaire (DBQ) was completed in July 2015 by a private clinical psychologist. The DBQ shows that the examiner reviewed the claims file. The Veteran told the examiner that he had experienced MST in the Navy while serving on ship. The Veteran told the examiner that he was 18 years old when he joined the Navy; that he was approached by other male sailors for sex at least weekly if not more often; and that he had walked in on two male sailors who were having a sexual encounter and they threatened him at that time. The examiner checked the Veteran for symptoms of PTSD that corresponded with the criteria for PTSD contained in DSM-5. In remarks that she added to the DBQ, the examiner concluded that the Veteran more likely meets the criteria for PTSD-moderate to severe due to his military sexual trauma in being approached for sex by other sailors while on board ship on active duty. She stated that this occurred when he was young and had not had a lot of exposure to the world. He was shocked and horrified by these experiences. This led to poor decisions. He continues to have bad memories about these events. The Board finds the July 2015 VA DBQ examination report and the medical opinion it contains to be highly probative and provides a sufficient rationale that the Veteran has PTSD that is attributable to MST that he experienced during service. Such finding is supported by the Veteran’s military personnel records documenting a change in behavior as well as a lay statement offered by the Veteran’s brother. Further, the record contains no medical opinion contradicting the examiner’s findings or conclusions. The Veteran has consistently given the same account of his MST both to VA adjudicators and to the medical professionals treating him. A remand of this claim to procure additional medical examination and opinion is therefore not in order. VA may not seek additional development for the sole purpose of obtaining evidence unfavorable to a claimant. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The Board acknowledges that his service treatment records do not show that the Veteran was contending with MST. Thus, even considering that MST is often not reported by its victims during service, a degree of reasonable doubt remains about the factual predicate of this claim. However, the Board concludes that there is credible evidence of record supporting the Veteran’s account of MST, including that his account was accepted by the examiner and his military personnel records documenting a change in behavior. See 38 C.F.R. § 3.304(f)(5). The evidence on this issue is at least in equipoise and the resulting reasonable doubt must be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the Board finds that the criteria for service connection for PTSD due to MST have been met. Therefore, the appeal is granted. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel