Citation Nr: 18158633 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-58 718 DATE: December 18, 2018 ORDER Entitlement to service connection of an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT The criteria for service connection of an acquired psychiatric disability, including PTSD, have been met. 38 U.S.C. §1131, 5107; 38 C.F.R. §3.303 (2017). CONCLUSION OF LAW The criteria for service connection of an acquired psychiatric disability, including PTSD, have been met. 38 U.S.C. §1131, 5107; 38 C.F.R. §3.303 (2017) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from August 1978 to May 1985. This matter comes before the Board of Veteran’s Appeals (Board) from a February 2015 Rating Decision of a Department of Veteran’s Affairs (VA) Regional Office (RO). In this case, the Veteran contends that she was the victim of an in-service physical assault in 1979 (7/14/2014 Statement in Support of Claim for PTSD Secondary to Sexual Assault, p. 1) and the trauma of that event resulted in her current diagnosis of PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§1131, 5107; 38 C.F.R. §§3.303, 3.304. There must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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 in-service stressor occurred. 38 C.F.R. § 3.304 (f). Meeting the first element, the Veteran’s has a current diagnosis of chronic PTSD (11/7/2016 CAPRI, p.4), and has received treatment for PTSD/Military Sexual Trauma (MST) since 2014 (9/8/2016 CAPRI, p. 81). Regarding the second element, there is credible supporting evidence supporting the in-service stressor has also been met, as discussed below. 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. Gallegos v. Peake, 22 Vet. App. 329 (2008). 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. 38 C.F.R. § 3.304 (f)(3). Medical opinion evidence may also be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011); see also 67 Fed. Reg. 10,330, 10,330-31 (Mar. 7, 2002). This evidence need not be contemporaneous with service. In Menegassi, the U.S. Court of Appeals for the Federal Circuit concluded that evidence from 2001 could be used to corroborate a claim that an assault occurred in 1984. The Board may still weigh any such medical opinion evidence in context with other record evidence and the mere submission of a medical opinion does not preclude the Board from making a factual determination regarding the weight to be given to that opinion. While the reported personal assault is not noted in the Veteran’s service or medical records, early in her PTSD treatment records, she explained that the sexual assaults stopped when she told her mother and her mother reported the incident (9/8/2016 CAPRI, p. 87). Of record is a 1979 response to the Veteran’s mother, corroborating that the Veteran told her mother of the assault (5/31/2018 Correspondence, pgs. 2-3). The response to the Veteran’s mother “determined that [the alleged assailant] did make inappropriate sexual advances toward [the Veteran].” With regard to sexual assault, the letter continues: “while [sexual assault] may well have occurred, there was insufficient evidence to formally accuse [the alleged assailant] for indecent assault. His chain of command has been informed of the allegation and the results of the inquiry into this matter so that they by be alert to the possibility of similar behavior by [the alleged assailant].” The Board notes that a command’s assessment of the level of evidence required to bring formal charges is distinguishable from the level of evidence required here, to determine whether an in-service stressor occurred. In cases involving personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b). YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). The Veteran’s recent account of how she responded to the assault at the time it occurred is corroborated by the March 1979 letter from the Inspector General (5/31/2018 Correspondence, pgs. 2-3). The content of the letter verifies the Veteran was subjected to witnessed inappropriate sexual advances, and includes the limited acknowledgement that the assault “may well have occurred” placing the evidence that the in-service stressor occurred in at least equipoise with evidence that it did not. The probative weight of the forgoing, in conjunction with the medical evidence establish that an in-service stressor occurred, meeting the third element. Finally, the weight of the evidence supports the finding that the Veteran’s PTSD is a result of the in-service stressor of the MST. As indicated early in her treatment, “This lady was the victim of a sexual assault while serving in the Army and she has PTSD symptoms as a result of the attack” (9/8/2016 CAPRI, p. 83) and in November 2014 “This lady has PTSD from MST” (9/8/2016 CAPRI, p. 79). In further support of a link of the Veteran’s PTSD to an in-service stressor, two of the Veteran’s treating physicians have provided statements attesting to her diagnosis of PTSD and providing the requisite medical evidence linking her PTSD to the in-service stressor sexual assault. Dr. L. L. provided “I am currently the mental health provider for [the Veteran]… Per history, she was brutally raped during the military by her sergeant in command. She has had chronic difficulties as a result which have altered her life. She suffers from PTSD and depression as a result of the rape and is treated with medications and followed in the…clinic… and…VA Medical Center.” (1/31/2018 Third Party Correspondence, p.2). Dr. M.J.N. provided “[the Veteran] is participating in mental health treatment (both psychotherapy and medication) for PTSD and depression at … VMAC. She has been seeing me for psychotherapy since July 2015... She is treated for PTSD and depression secondary to her military sexual trauma.” As the Veteran has a current diagnosis of PTSD that has been competently linked to an in-service stressor, and that stressor has been determined to have occurred, service connection of an acquired psychiatric disability, to include PTSD, is granted. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. A. Myers, Associate Counsel