Citation Nr: 18155148 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-04 308 DATE: December 3, 2018 ORDER The claim of entitlement to service connection for acquired psychiatric disability, diagnosed as posttraumatic stress disorder (PTSD) and major depressive disorder, with associated alcohol use disorder, is granted. FINDING OF FACT The weight of the competent, probative evidence indicates that the Veteran has current diagnoses of acquired psychiatric disability—specifically, PTSD and major depressive disorder, with associated alcohol use disorder—that are as likely as not medically-related to in-service personal assaults, to include military sexual trauma (MST). CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for acquired psychiatric disability, diagnosed as PTSD and major depressive disorder, with associated alcohol use disorder, are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1985 to November 1987. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2015 rating decision, in which the RO denied service connection for an acquired psychiatric disorder, claimed as anxiety, schizophrenia, and PTSD. In August 2015, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2015, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in January 2016. Regarding the matter of representation, the Board notes that the Veteran was previously represented by Veterans of Foreign Wars of the United States (as reflected in a June 2014 VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative). In January 2016, the Veteran granted a power-of-attorney in favor of private attorney Robert V. Chisholm (as reflected in a January 2016 VA Form 21-22a, Appointment of Individual as Claimant’s Representative). The Board recognizes the change in representation. Also, this appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.900(c). The Veteran contends that she has psychiatric disability, claimed as PTSD, that is related to her military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); (credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Diagnoses of PTSD must be rendered in accordance with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). See 38 C.F.R. § 4.125. The Board notes that the Fifth Edition of the DSM (DSM-5) recently replaced the Fourth Edition of the DSM (DSM-IV). Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with the DSM-5. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014. Also, there are special rules for establishing the occurrence of an in-service stressor for PTSD claims based on in-service personal assault. These rules allow for evidence from sources other than a veteran’s service records to corroborate a stressor. 38 C.F.R. § 3.304 (f)(5). They also allow for evidence of behavior changes following the claimed assault to corroborate a stressor. Id. In addition, they provide 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. Id. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Turning to the evidence of record, February 1986 military personnel record documents that the Veteran received a Captain’s Mast for disobeying two separate orders. In an April 1987 service treatment record (STR), the clinician noted that the Veteran may be pregnant. The Veteran’s personnel records indicate that she was discharged from service due to her pregnancy. In an October 2012 VA treatment record, the clinician noted that the Veteran’s PTSD screening test was positive. In a separate October 2012 VA treatment record, the VA psychologist diagnosed the Veteran with PTSD; however, the VA psychologist attributed the Veteran’s PTSD to her childhood trauma. The VA psychologist also noted the Veteran’s report that she was verbally harassed during service from male service members; however, the Veteran denied any military sexual trauma at the time. The VA psychologist noted that the Veteran did not meet the diagnostic criteria for PTSD and instead diagnosed the Veteran with major depressive disorder. In a November 2012 VA treatment record, a VA psychologist documented the Veteran’s history of childhood sexual trauma. The VA psychologist also documented the Veteran’s report that she experienced MST and that she did not previously report this to the October 2012 VA psychologist because she felt that MST was not the main source of her psychiatric symptoms. On July 2015 VA examination, the examiner diagnosed the Veteran with schizoaffective disorder and other specified trauma related stressor. The examiner documented the Veteran’s extensive reported history of experiencing sexual assaults during her childhood. The examiner also documented that the Veteran’s statement that she was sexually assaulted during a party during active duty. The examiner documented the Veteran’s statement that she became pregnant as a result of her sexual assault in service. The examiner noted that service treatment records indicate that the Veteran took unauthorized leave and made a documented visit to seek treatment for mental health. But, the examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD because she did not display any avoidance behavior related to trauma. Thus, the examiner opined that it is less likely as not that the Veteran’s symptoms of other specified trauma and stressor related disorder were caused by or the result of the reported military sexual trauma. The examiner reasoned that VA treatment records, his review of the claims file, and the VA examination indicate that the Veteran’s symptoms stem from her childhood trauma. However, in an August 2015 NOD, the Veteran stated that the July 2015 VA examiner only focused on her childhood abuse during the interview and seemed to disregard her reports of sexual harassment and assault during military service. A November 2015 VA treatment record notes diagnoses of schizoaffective disorder, bipolar type and “other specified trauma”. In a December 2016 statement, the Veteran indicated that male servicemembers frequently made sexual comments directed at her. The Veteran also recounted that, on one night, she hosted a party at her apartment during which she was sexually assaulted. The Veteran stated that after the party, everyone left except one individual who stayed back, despite the Veteran asking him to leave. The Veteran also described that she passed out shortly after the party ended and woke up in the morning undressed. The Veteran stated that a couple of days later, she bought a pregnancy test, which indicated that she was pregnant. The Veteran stated that she then complained to her supervisors in the military, who were dismissive of her claims. In a May 2017 letter and an examination report from a private psychologist, the Veteran was diagnosed with PTSD based on DSM-V criteria, major depressive disorder, delusional disorder, and alcohol use disorder. The private psychologist noted that her evaluation of the Veteran included a three-hour clinical interview and formal psychological testing, in addition to reviewing the Veteran’s VA claims file in its entirety. The private psychologist opined that it is as likely as not that the Veteran’s PTSD is related to her MST. The private psychologist reasoned that the Veteran developed partial PTSD during childhood due to sexual abuse; however, she fully developed PTSD only after her MST. The private psychologist also reasoned that although the Veteran suffered significant sexual trauma as a child and some symptoms of PTSD as a result, the Veteran would not have fully developed PTSD if it was not for MST that she experienced as an adult. The private psychologist also opined that the Veteran’s major depressive disorder and alcohol use disorder were related to service, but found that the Veteran’s delusional disorder was not related to her military service and attributed the Veteran’s delusional disorder to living near her mother, which triggers reminders of her childhood traumas. Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt on certain elements of the claim in the Veteran’s favor, the Board finds that service connection for acquired psychiatric disability is warranted. First addressing the current disability requirement, the Board initially notes that the record includes conflicting medical opinions was to whether the Veteran meets the diagnostic criteria for service-related PTSD. In weighing the evidence, the Board must decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The Board may favor the opinion of one competent medical professional over that of another provided the reasons for that determination are stated. See Winsett v. West, 11 Vet. App. 420 -25 (1998). As reflected above, the Board notes that the October 2012 VA treatment records and May 2017 private opinion document diagnoses of PTSD. In diagnosing PTSD, the May 2017 private psychologist related the Veteran’s psychiatric symptoms to her military sexual harassment and sexual assaults. Although the October 2012 VA clinician related the Veteran’s psychiatric symptoms to only her childhood trauma, the Board notes that the Veteran takes into account that the Veteran had not divulged her MST to the October 2012 VA clinician; therefore, the October 2012 VA examiner could not have related the Veteran’s PTSD with her service. Although the July 2015 VA examination report reflects that the Veteran did not have a valid diagnosis because she did not meet the avoidance criterion, this opinion is not entitled to significant probative weight because it does not include discussion of the October 2012 VA treatment record diagnosing PTSD and specifically addressing this criterion, even though the October 2012 VA clinician attributed the Veteran’s avoidance criteria to her childhood trauma instead of her in-service harassment and assaults. See, e.g., Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) and Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). By contrast, the May 2017 private psychologist’s diagnosis of PTSD is based upon a complete review of the Veteran’s medical records and reported history, and it is accompanied by specific, stated rationale that is consistent with the evidence of record. Where the July 2015 VA examiner’s lack of diagnosis for PTSD was based on the Veteran’s childhood trauma and the absence of the avoidance criterion, the May 2017 private psychologist explained that the Veteran suffered partial PTSD due to her childhood trauma, and that it was the sexual harassment and sexual assault in service as an adult that resulted in her full PTSD. In forming the diagnosis of PTSD, the private psychologist discussed the negative impact, such as the captain’s mast, the sexual harassment had on the Veteran’s performance in-service and the documented pregnancy tests after the reported sexual assault. Therefore, the Board finds diagnosis of PTSD persuasive because the May 2017 private psychologist focused on both the childhood trauma and the in-service sexual harassment and sexual assault. Therefore, the Board finds that the preponderance of the competent, probatibe evidence tends to support a valid diagnosis of service-related PTSD. As for diagnoses of disorders other than PTSD, the May 2017 private psychologist also diagnosed the Veteran with major depressive disorder and alcohol use disorder. The Board finds the private psychologist’s diagnosis of major depressive disorder persuasive because the private psychologist considered and discussed the Veteran’s reported history when discussing the diagnostic criteria. The Board also finds the diagnosis of alcohol use disorder persuasive because the private psychologist discussed the Veteran’s history of drinking to cope with her PTSD symptoms. Again, as the examiner based these diagnoses on examination of the Veteran, and full consideration of the Veteran’s documented medical history and assertions, and applicable diagnostic criteria, the Board accepts them as probative. Second, as for the matter of an in-service injury or event, the Veteran has submitted multiple statements to the indicating that male service members sexually harassed her when she worked on the flight deck in service, she was often groped at parties, and that she was sexually assaulted after a party she hosted during service. The Board finds that, with resolution of all reasonable doubt in the Veteran’s favor, evidence of record sufficiently corroborates the occurrence of the Veteran’s reported in-service personal assaults WiAs for the diagnosed PTSD, as indicated above, if a PTSD claim is based on in-service personal assault, then evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident, to include evidence of behavior changes following the claimed assault. See 38 C.F.R. § 3.304 (f)(5). Here, the facts that the Veteran experienced behavioral issues that resulted in a captain’s Mast and her taking a pregnancy test shortly after her alleged sexual assaults tend to support the occurrence of the alleged in-service MST. The Board points out that the Veteran is competent to assert matters within her personal knowledge, such as an event witnessed. See 38 C.F.R. § 3.159 (a)(2) and Charles v. Principi, 16 Vet. App. 370 (2002). Further, the Veteran has reported the same in-service events to many VA treatment providers and private treatment providers. In instances where the Veteran did not report the in-service events to VA providers, the Veteran explained that she initially did not think that her psychiatric concerns were related to her MST and did feel the need to divulge that information. The Board has no specific reason to question the veracity of the Veteran’s assertions in this regard. The Board further notes that the Veteran’s statements concerning her in-service events, as reflected in multiple written statements, consistent throughout the pendency of his appeal Accordingly, after resolving any doubt in the Veteran’s favor, the Board finds that there is sufficient credible evidence to support a finding that the Veteran’s claimed in-service stressors of a pattern of sexual harassment and an in-service sexual assault actually occurred. Third, the evidence includes the May 2017 private opinion that relates the Veteran’s psychiatric symptoms attributable to her PTSD and major depressive disorder, and alcohol use disorder, to her military service. The May 2017 private examiner reviewed the Veteran’s claims file, extensively interviewed the Veteran, and provided that the PTSD and major depressive disorder, and alcohol use disorder, are related to her military service, to include her in-service stressors. The Board notes that the May 2017 private opinion is the only opinion that diagnosed the Veteran with PTSD and related it to the Veteran’s MST. As previously discussed, even though the October 2012 VA clinician attributed the Veteran’s PTSD to her childhood trauma instead of her MST, the Veteran later explained that she did not disclose her MST to the October 2012 VA clinician. As the May 2017 private opinion is the only competent one of record to directly address a relationship between the Veteran’s diagnosed PTSD and her MST, there is no medical evidence or opinion to directly contradict May 2017 private opinion. Therefore, the Board finds the May 2017 opinion highly probative. As for major depressive disorder, the private psychologist reasoned that the Veteran recalled feeling depressed to the point of wanting to die at the age of 11; however, with improved foster conditions and school activities, the Veteran recalled not feeling depressed again until being sexually assaulted in-service and becoming pregnant as a result. The private psychologist also noted that the Veteran has had on and off depression since her in-service assaults. Notably, there is no medical evidence or opinion to directly contradict May 2017 private opinion. As for origin of alcohol use disorder, the examiner reasoned that the Veteran began to drink heavily as a means to cope with her symptoms of PTSD. Notably, there is no medical evidence or opinion to directly contradict May 2017 private opinion. The Board acknowledges that the evidence currently of record does not support an award of service connection for psychosis—diagnosed as schizoaffective disorder by the July 2015 VA examiner, and as delusional disorder by the May 2017 private examiner—as each examiner rendered a negative nexus to service opinion, and there is otherwise no competent evidence or opinion to the contrary. Nonetheless, the Board finds that the collective, credible lay and probative medical opinion evidence collectively support a finding that current acquired psychiatric disability, diagnosed as PTSD and major depressive disorder, with associated alcohol use disorder, are as likely as not medically related to her alleged in-service personal assaults. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. Given the evidence noted above, and with resolution of all reasonable doubt on certain elements of the claim in the Veteran’s favor, the Board finds that the criteria for service connection for acquired physiatric disability—diagnosed as PTSD and major depressive disorder, with associated alcohol use disorder—are met. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel