Citation Nr: 1817347 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 14-30 960A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Service connection for posttraumatic stress disorder (PTSD) claimed as due to military sexual trauma. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1971 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated November 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The rating decision also denied service connection for a total disability rating based on individual unemployability (TDIU) and service connection for special monthly compensation (SMC). In November 2016, the Veteran perfected an appeal only for service connection for PTSD. Therefore, only the issue of service connection for PTSD is on appeal. A Travel Board hearing was held in November 2017 before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The competent and credible evidence supports the Veteran's claimed in-service stressor, military sexual trauma (MST). 2. The Veteran has been diagnosed with PTSD as the result of MST. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pertinent Service Connection Laws and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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 claimed in-service stressor occurred. In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran's assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997). 38 C.F.R. § 4.125 requires PTSD diagnoses to conform to the Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV) as the governing criteria for diagnosing PTSD. Parenthetically, the Board notes VA implemented DSM-V, effective August 4, 2014 and DSM-V applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). Here, there are two medical opinions, one rendered in October 2009 pursuant to DSM-IV, and the other in November 2017 pursuant to DSM-V. Accordingly, the Board recognizes that each opinion was correctly rendered pursuant to the criteria in effect at the time. The law provides that if a PTSD claim is based on an in-service personal assault, which includes military sexual trauma (MST), a veteran is required to provide corroborating evidence to substantiate the occurrence of the stressor. 38 C.F.R. § 3.304 (f)(5); Gallegos v. Peake, 22 Vet. App. 329 (2008). Examples of such corroborating evidence include, but are not limited to: records from law enforcement authorities, rape crises centers, mental health counseling centers, hospitals, or physicians; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these alternate sources. Examples of behavioral changes, or markers, that may constitute credible evidence of a stressor include, but are not limited to: request for 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 behavioral changes. 38 C.F.R. § 3.304(f)(5). 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). Additionally, under 38 C.F.R. § 3.304(f), VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for interpretation. Bradford v. Nicholson, 20 Vet. App. 200 (2006). Most significantly, for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. See id; Patton, 12 Vet. App. at 278. When there is conflicting medical evidence in the record regarding whether the Veteran's currently claimed disorders are service connected, it is the responsibility of the Board to weigh the evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. See Evans, 12 Vet. App. at 31. In order to afford medical opinions weight, the opinions must be based on sufficient facts and data as applied to reliable principles and methods. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-304 (2008) (the probative value of a medical opinion is derived from it being factually accurate, fully articulated, and sound reasoning for the conclusion). Additionally, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, it is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection - PTSD Claim The Veteran maintains that he currently has PTSD as a result of being sexually assaulted on board ship in 1971. Specifically, he has indicated in detail how he was forcibly sodomized and that the offender threatened to kill the Veteran if he told anyone about the assault. He has also stated that he later reported the assault to his superiors, but that no response was forthcoming, and he indicated that he spoke with a mental health specialist aboard ship who prescribed psychiatric medication. Additionally, the Veteran indicates that the assault has bothered him his whole life. See Veteran's claim form dated August 2008; Veteran's statements dated November 2008, January 2009, April 2012, August 2013, and July 2017; Statement in Support of Claim for Service Connection for PTSD (VA Form 21-0781a) dated August 2008; Hearing Transcript at pgs. 4-7. During the November 2017 Board hearing before the undersigned VLJ, the Veteran testified as to the occurrence of the sexual assault and his behavioral changes following the assault, stating that he felt shame and fear, and that he turned to alcohol, drugs, and unexcused absences from his ship to cope. Hearing Transcript at pgs. 9-11. He also stated that he eventually reported the assault to a Navy doctor, but that the report was ignored. Id. at 12. At the outset, the Board finds that the Veteran has a current diagnosis of PTSD. VA and private medical records, discussed below, reflect that the Veteran was diagnosed with PTSD due to MST on at least four occasions. Although an October 2009 VA examiner's opinion was negative as to a PTSD diagnosis, the weight of the probative evidence establishes that the Veteran has a current PTSD diagnosis. The Veteran's service treatment records (STRs) show that his pre-entrance examination in February 1971 was negative for psychiatric problems. On October 21, 1971, as part of a medical evaluation for acceptance into a drug exemption program, the physician noted "no underlying psychiatric disorder." Exactly one week later, on October 28, 1971 a shipboard clinician noted that the Veteran was seen for an "anxiety reaction." The Veteran's December 1971 separation examination was negative for psychiatric issues. The Veteran's personnel file reflects that the Veteran enrolled in a drug abuse exemption program in October 1971 and acknowledged LSD use from August to September of that year; was disciplined for unexcused absences in October, November, and December 1971 and in January 1972; failed to obey orders from a superior officer in November 1971 and January 1972; and in January 1972 was charged with assault with a means likely to produce grievous bodily harm. The following month, the Veteran was administratively discharged from the Navy for drug abuse. In conjunction with his claim, the Veteran was afforded a VA psychiatric examination in October 2009. The psychologist concluded that the Veteran did not meet DSM-IV criteria for a diagnosis of PTSD, and opined that it was less likely than not that the Veteran's record supports the occurrence of the claimed MST. See VA Examination Report dated October 13, 2009 (VA Examination Report) at pgs. 14-15. The examiner explained that there is no record of the Veteran reporting or seeking treatment for sexual trauma during active duty, but that was not uncommon for victims of MST. The examiner noted that the Veteran made several statements that were inconsistent with the evidence of record, for example that he did not use illicit drugs until after the alleged in-service sexual assault in October or November 1971 while the Veteran's STRs reflect repeated LSD use prior to the assault. The examiner's overall impression of the Veteran during the interview was that he was most likely exaggerating or feigning psychological problems for secondary gain. See VA Examination Report at pgs. 14-15. In response, the Veteran submitted a letter dated August 2010 explaining, in part, that the inconsistencies noted in the examiner's report were due to memory problems caused by his past chronic substance abuse. In March 2010, a physician at the St. Augustine, Florida VA outpatient clinic diagnosed the Veteran with chronic PTSD, noting the Veteran's MST. In June 2010, a private physician noted that the Veteran presented with symptoms of PTSD and that his account of how the in-service sexual assault sparked the cascade of problems is "quite believable." In January 2014, a physician at the VA outpatient treatment clinic in Daytona Beach, Florida diagnosed "PTSD from MST." A second medical opinion, dated November 2017, was provided by VA clinical psychologist who is identified as a trauma specialist who noted that he has treated more than 100 Veterans who are trauma victims. This psychologist disclosed that he provided psychiatric treatment services for the Veteran from December 2013 to May 2015, and again from February to June 2017. The psychologist reviewed the Veteran's STRs, service personnel records, and VA treatment records dating from 2000 in forming his medical opinion. Notably, the psychologist stated that he diagnosed the Veteran with PTSD using DSM-V criteria, and opined that "it is at least as likely than not that [the Veteran] did endure Military Sexual Trauma while in the military and struggles with the symptoms of PTSD that are a direct result of that experience." Opinion dated November 8, 2017 at pg. 3. He added that it is not uncommon for MST victims to report the trauma years after it occurred, and that it was particularly true of male victims, in part, because MST is uniquely stigmatizing for men, who are less likely to report it than female service-members. The psychologist noted that it is common for trauma victims to "forget important details of their trauma, or 'rewrite' them in accurate ways." Opinion at pg. 2. The psychologist observed that a review of the Veteran's service records shows that there is no record of either behavioral problems or legal issues prior to the time of the assault. Though the VA examiner and the VA clinical psychologist disagree regarding the veracity and etiology of the Veteran's mental illness, the Board sees no reason why both opinions should not be considered since each one is based on sufficient facts, factually accurate, fully articulated and contain sound reasoning, which is where the bulk of the probative weight of any opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 304. As such, the October 2009 and November 2017 medical opinions are accorded equal probative weight. Upon review of all evidence of record, both lay and medical, the Board finds that the issues of whether the in-service stressor occurred and whether the Veteran's PTSD is related to the stressor are in equipoise. The Veteran has, on multiple occasions, credibly and consistently, reported the incidents surrounding the MST, including his many written statements submitted in support of this claim and his testimony during the November 2017 Board hearing. Notably, there is evidence of PTSD markers that corroborate the in-service stressor in the form of behavioral changes: deterioration in work performance as shown by the Veteran's unexcused absences and refusing to comply with commands, an assault with a means likely to produce grievous bodily harm, and anxiety. Even assuming, as did the October 2009 VA examiner, that the Veteran used illicit drugs prior to the sexual assault, it cannot be denied that service personnel records dated from about October 1971 reflect the aforementioned markers, representing behavior not indicated in the Veteran's service records prior to that time. See 38 C.F.R. § 3.304(f)(5). Accordingly, the Board resolves any doubt in favor of the Veteran, and finds that the in-service stressor occurred and that the Veteran's PTSD is related to the stressor. 38 U.S.C. § 5107(b); Gilbert, supra. For the foregoing reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for PTSD is warranted. 38 C.F.R. § 3.102. ORDER Service connection for PTSD, claimed as due to military sexual trauma, is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs