Citation Nr: 18154974 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 05-21 101 DATE: December 3, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) with depression is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s posttraumatic stress disorder (PTSD) with depression was caused by an in-service event. CONCLUSION OF LAW The criteria for service connection for PTSD with depression are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from September 1980 to October 1983. This matter comes before the Board of Veterans Appeals (Board) on appeal of an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In March 2007, the Veteran testified at a video conference hearing before the undersigned Veteran’s Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s claims file. The Board remanded the case in March 2009, March 2011, August 2012, April 2013, January 2014, April 2015, and December 2015 for further development. Thereafter, in a June 2017 decision, the Board denied the Veteran’s claim for entitlement to service connection for an acquired psychiatric condition, to include PTSD and major depressive disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the parties submitted an Amended Joint Motion for Remand. In May 2018, the Court issued an Order to grant the motion, vacating the decision and remanding it to the Board for further consideration. The matter is now before the Board on remand from the Court for actions consistent with the May 2018 Order. General Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish direct-incurrence service connection for a disability, the Veteran must show: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current 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). Special consideration must be given to claims for service connection for PTSD based on personal assault as a result of the sensitivity and difficulty in establishing proof of the assault in such claims. Patton v. West, 12 Vet. App. 272 (1999). This evidence includes, but is not limited to: medical records, police records, statements from the veteran’s family and friends, and changes in behavior, to include, substance abuse, a request for a transfer to another military duty assignment, and unexplained changes in social behavior. 38 C.F.R. § 3.304(f)(5). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran’s military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). Analysis The credible evidence of record indicates that the Veteran has been diagnosed with PTSD with depression. See November 2004 VA psychologist letter. The Board, therefore, finds that the Veteran has a current disability for the purposes of Shedden direct-incurrence service connection analysis and moves to the second and third elements of the analysis. Regarding the second element of the Shedden analysis, in-service incurrence or aggravation of a disease or injury, the Veteran has reported that she experienced several in-service stressors. First, she reported she suffered from Military Sexual Trauma (MST) due to consistent abuse by her husband and harassment by military superiors. Second, she reported an incident in Basic Training when a fellow recruit pointed a weapon at her. Third, she reported another incident in Basic Training when another private attempted suicide. Concerning an in-service stressor, the service medical treatment records are absent for any report or complaints related to an assault. However, the Board points out that a stressor of a personal assault can be corroborated by sources other than the Veteran’s service records. The United States Court of Appeals for the 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, 638 F. 3d 1379, 1382 (Fed. Cir. 2011) (observing that the Court 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, 12 Vet. App. at 280 (rejecting the requirement that “something more than medical nexus evidence is required for ‘credible supporting evidence’” in personal assault cases). Seven VA examinations were obtained from three VA examiners that considered whether or not there was a relationship between the Veteran’s acquired psychiatric condition and her active service. All three examiners opined against service connection. However, of these examinations, only two examination opinions acknowledged that the Veteran suffered from PTSD. The April 2014 VA examiner acknowledged the Veteran’s PTSD diagnosis but opined that it preexisted service. PTSD was not noted on clinical examination for entrance to service, and the April 2014 VA examiner’s opinion does not constitute clear and unmistakable evidence that PTSD existed prior to service so as to rebut a presumption of soundness on induction as to PTSD. In October 2015, the same examiner concluded without explanation that the Veteran was “in remission” of her PTSD. The examiner further concluded that the Veteran’s alleged stressors were insignificant to the Veteran’s mental health because, in the examiner’s opinion, the Veteran did not focus enough in her interview on those alleged stressors. The Board places limited probative weight on these VA opinions as they relate to PTSD, because the examiner did not thoroughly discuss the Veteran’s accounts of her stressors or her extensive treatment history for PTSD due to military sexual trauma. Likewise, the Board assigns limited weight to the other opinions, as they did not acknowledge the Veteran’s PTSD diagnosis. The Veteran’s treatment records and letters submitted by her treatment providers document that she consistently reported in-service personal assaults when seeking treatment for PTSD. In a July 2005 letter, the Veteran’s treating psychotherapist of over two years stated that the Veteran’s husband, who she met in her unit, “was verbally and sexually abusive”. She elaborated that the Veteran “was routinely intimidated, tormented and abused by her husband while serving in the military”. Finally, the psychotherapist indicated that the Veteran also experienced sexual harassment at the hands of military superiors. The Veteran’s treating psychiatrist, who first saw the Veteran for treatment in November 2001, also submitted a letter in July 2005. In that letter, she confirmed the psychotherapist’s account, and pointed out that from 2001 forward the Veteran’s medical chart thoroughly documented her history of “domestic violence that had its origins during military service.” She also confirmed the Veteran’s account of the incident in basic training where a fellow trainee aimed a weapon at her. Her treating psychiatrist again submitted a letter in August 2009 stating that the Veteran had been “in treatment continuously since 2001 for Post-traumatic stress disorder.” The psychiatrist then opined that the Veteran’s PTSD was likely caused by her military service. With respect to the Veteran’s stressor, it is the role of the Board as finder of fact to evaluate the credibility of the evidence and to determine the probative weight that is to be assigned to it. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (overturned on other grounds). Although the VA examiners opined against service connection, the Court has held that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. (1997). Furthermore, the Federal Circuit has held that medical evidence may be used to corroborate a personal assault stressor. Menegassi, 683 F. 3d at 1382. Here, the Veteran’s report of in-service personal assault is consistently documented in her VA treatment records and corroborated by her mental healthcare providers. In light of the above, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s PTSD with depression is related to her reported in-service   sexual assault stressor. Accordingly, resolving reasonable doubt in the Veteran’s favor, service connection for PTSD with depression is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.304 (f); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Frasch, Law Clerk