Citation Nr: 1807469 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-13 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and a mood disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2001 to October 2005. This appeal is before the Board of Veterans' Appeals (Board) from a February 2012 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In her March 2014 substantive appeal, the Veteran requested a videoconference hearing before the Board. Before such a hearing could be scheduled, the Veteran withdrew her request in a March 2015 statement. FINDING OF FACT An acquired psychiatric disability is related to military sexual trauma. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD and a mood disorder, have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims service connection for PTSD due to trauma resulting from combat and sexual assault. Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). There is thus no prejudice to the Veteran in deciding this appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection for PTSD requires: (1) a diagnosis of the disorder made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-5); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a). There are several avenues to document an in-service stressor, other than obtaining verification from the Joint Services Records Research Center (JSRRC) or other government records repository: an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; lay evidence of personal assault with appropriate corroboration; and a stressor related to a veteran's fear of hostile military or terrorist activity, with appropriate medical evidence. 38 C.F.R. § 3.304(f). Lay evidence may establish an in-service stressor if the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). There are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than a veteran's service records which may corroborate his or her account of the stressor incident. 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. 38 C.F.R. § 3.304(f)(5). VBA's Adjudication Procedure Manual, M21-1MR, also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1MR, Part IV, Subpart ii, 1.D.17.n. 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)(5). Service treatment records do not reflect any symptoms of or treatment for any acquired psychiatric disability. In July 2003, the Veteran presented to the emergency room reporting vaginal discharge after a sexual encounter with her boyfriend which may have been unprotected. Her physician removed a tampon that had been there for 4-5 days. VA treatment records reflect that in November 2007 the Veteran reported struggling with depressed moods, poor sleep, nightmares of service, fragmented sleep, lack of motivation, fatigue, tearfulness, anhedonia, and anger. She stated that she did not witness atrocities while serving in Iraq but was in constant fear. She reported being sexually assaulted in service, specifically waking up without clothes on after an evening with a male acquaintance. She stated that she did not report the assault and that did not feel that it was affecting her today. She was diagnosed with depression. In February 2008, she reported irritability and an inability to focus. In August 2011, she reported dysthymia and mood swings. She made several superficial slices on her forearm. In October 2011 she was dysthymic. In November 2011 she began a substance abuse treatment program which continued through January 2012. In her December 2011 claim and associated statements, the Veteran reported that her PTSD was the result of date rape that occurred around June 2003. Specifically, she stated that she had had too much to drink and accepted an offer to sleep on her date's couch. She reported that she woke up in the middle of the night without pants. She stated that she did not realize that she had been raped until she had to go to the emergency room to have an infected tampon removed and to be treated for possible sexually transmitted diseases. She also stated that while serving in Iraq in 2004 she had to run for cover several times when rocket-propelled grenades and mortar rounds came within 100 yards of her location. She stated that she had nightmares while in Iraq. She further reported that when being treated for depression she had not told her VA psychiatrist about these incidents or that she had been self-medicating with alcohol and illegal drugs. The Veteran underwent a VA examination in February 2012. She reported sleeping too much, tearfulness, hopelessness, poor energy, anxiety, and irritability. She was diagnosed with mood disorder and substance abuse disorders. The examiner explained that while the Veteran had exposure to traumatic events, she did not meet the criteria for PTSD under the prior DSM-IV, specifically criteria C, avoidance. In an addendum opinion, the examiner stated that while records do not establish the occurrence of military sexual trauma, in the examiner's clinical opinion her behaviors and subsequent mood are consistent with the claimed stressor. Since she had no psychiatric symptoms prior to enlistment, since she was encouraged to extend her enlistment, since she provided consistent information to her treating VA mental health professionals, and since she is diagnosed with mood disorder, the examiner stated that it was clinically reasonable that her current mood state was incurred by her claimed military sexual trauma. VA treatment records reflect that in February 2012 the Veteran underwent a psychological assessment. She was diagnosed with alcohol dependence, PTSD, and anxiety disorder. March 2012 she was diagnosed with substance dependence, PTSD due to military sexual trauma, mood disorder, and anxiety disorder. She continued outpatient psychological treatment as well as substance abuse treatment. In March 2016 she underwent another psychological assessment. She reported symptoms associated with a history of substance dependence, depression, and PTSD. Responses to a personality assessment inventory (PAI) did not detect malingering and provided empirical support for her claim of traumatic experiences. She was diagnosed with PTSD, severe recurrent major depressive disorder, substance abuse disorders in remission, and cluster B personality features. Her PTSD diagnosis was based on a detailed analysis under the DSM-5 criteria. The psychologist found that the Veteran likely used avoidant behaviors, specifically drug and alcohol use, to cope with the traumatic experiences. The Board finds that the evidence is at least in equipoise as to whether the Veteran's acquired psychiatric disability is the result of military sexual trauma. She has consistently recounted a credible narrative of a date rape occurring in the summer of 2003, and she had reported this narrative to her treating psychiatrist more than 4 years before applying for benefits. Service treatment records corroborate that the Veteran required treatment after an atypical sexual encounter in the summer of 2003. While the record shows that at the time she reported the encounter was with her boyfriend, her decision to report it as such at the time is understandable and admitted in subsequent treatment. The February 2012 VA examiner found that symptoms reported were consistent with a mood disorder related to military sexual trauma, though symptoms did not meet the DSM-IV PTSD criteria. Furthermore, the March 2016 psychological assessment found that symptoms met the DSM-5 PTSD criteria, and the conclusion was bolstered by objective testing which did not detect malingering. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran's acquired psychiatric disability is the result of military sexual trauma, and service connection is therefore granted. ORDER Service connection for an acquired psychiatric disability, to include PTSD and a mood disorder, is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs