Citation Nr: 18106983 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 10-25 889 DATE: June 1, 2018 ORDER Entitlement to a compensable evaluation for a right hamstring strain is dismissed. Entitlement to a disability rating in excess of 30 percent for acne vulgaris is dismissed. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran withdrew his claims for entitlement to a compensable evaluation for a right hamstring strain and a disability rating in excess of 30 percent for acne vulgaris. 2. The evidence is in relative balance as to whether the Veteran’s PTSD was caused or aggravated by in-service military sexual trauma. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for the issue of entitlement to a compensable evaluation for a right hamstring strain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal for the issue of entitlement to a disability rating in excess of 30 percent for acne vulgaris have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD, have been met. 38 C.F.R. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from December 1998 to June 1999, as well as additional periods of Reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board in November 2010 and August 2017 where they were remanded for additional development, and have been returned for further appellate review. The Veteran appeared at a travel Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2018. A transcript of the hearing is of record. Since the Veteran’s hearing and the last supplemental statement of the case in March 2015, additional evidence in the form of medical treatment records and lay statements have been added to the claims file. As the Veteran has waived initial RO review of this evidence, the Board will consider it. 38 C.F.R. § 20.1304. Neither the Veteran nor his 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 a duty to assist argument). Withdrawal At his March 2018 Travel Board hearing before the undersigned, the Veteran withdrew his appeals for entitlement to increased disability ratings for a right hamstring disability and acne vulgaris. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn by a veteran or his or her authorized representative in writing or at a hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Thus, there remains no allegation of error of fact or law for the Board to address with respect to these issues. Accordingly, the Board does not have jurisdiction over the issues, and dismissal is warranted. Service Connection The Veteran seeks service connection for PTSD due to in-service military sexual trauma (MST). Service connection will be granted on a direct basis if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may additionally be granted for disability resulting from injury incurred in or aggravated while performing active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) or a disease incurred or aggravated while performing ACDUTRA. 38 U.S.C. §§ 101(24), 106. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor. Where the claimed stressor is not a combat-related incident, a veteran’s lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran’s testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Generally, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of a claimed in-service stressor. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 142 (1997). However, in the context of a PTSD claim based on personal assault, the United States Court of Appeals for the Federal Circuit distinguished the holding in Moreau, and held “medical opinion evidence may 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 Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006); Patton v. West, 12 Vet. App. 272, 280 (1999). Thus, courts have made clear that in a claim for service connection for PTSD based on in-service personal assault, favorable medical evidence diagnosing PTSD based on the Veteran’s account of in-service assault must be weighed against all other evidence of record when determining whether the claimed in-service personal assault has been corroborated. See Menegassi, 638 F.3d at 1382 n.1. Additionally, in personal assault cases, evidence from sources other than a veteran’s service records may corroborate the veteran’s 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, 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 such behavior changes 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). Finally, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). When there is 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). The record reflects a diagnosis of PTSD during the pendency of the appeal in accordance with 38 C.F.R. § 4.125. As such, the Board finds that the evidence establishes a current disability for purposes of determining service connection. With respect to the Veteran’s claimed in-service stressor, he has consistently and credibly asserted that he was sexually assaulted by another service member during Military Occupational Specialty training in an incident described in multiple lay statements of record, and that this in-service incident brought back memories of a childhood sexual assault thereby aggravating preexisting childhood sexual trauma. There is nothing in the Veteran’s service personnel and treatment records that specifically documents a sexual assault at any point during his active service. However, as noted above, cases involving allegations of personal assault fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events about which a veteran complains, and where evidence from sources other than the Veteran’s service records may corroborate his account of the stressor incident. See 38 C.F.R. § 3.304(f)(5); Patton, 12 Vet. App. at 281. In this case, while the Veteran’s service records in evidence do not reflect that he reported the assault, of note is that he sought a psychological assessment for MST from VA clinicians more than one year before filing a claim for service connection. In addition, the Veteran submitted lay statements from family members indicating that his personality changed after service. In that regard, in September 2010, the Veteran’s aunt stated that prior to his military service the Veteran was easy-going, active in sports, and excelled academically. She further reported that after the Veteran returned from service he was often irritable and began abusing narcotics. In a statement from his spouse, she described him as a “thoughtful, gentle, and a hardworking man” prior to his military service, but described him as depressed, withdrawn, anxious, irritable, and prone to nightmares when he returned. Furthermore, after the Veteran’s asserted in-service sexual assault, the Board notes that he was discharged from military service for misconduct reasons due to illegal use of drugs and missing multiple Reserve drills. Thus, upon review, the Board finds that the Veteran has consistently and credibly reported the details of his alleged in-service stressor and that there is sufficient credible supporting documentation regarding behavior changes to corroborate the Veteran’s assertions that he experienced a sexual assault during active duty. With respect to a link between the Veteran’s current psychiatric disorder and an in-service stressor, the Board finds the evidence is at least in equipoise. In an August 2010 summary of the Veteran’s VA substance abuse treatment, one of his original VA psychologists, Dr. S.B., stated that the Veteran’s history of sexual trauma had a significant negative impact on many areas of his adult life. Although not providing a rationale, Dr. S.B. opined that it was likely that the Veteran’s symptoms of PTSD and depression began as a child “but were exacerbated by the sexual trauma incident in the military.” Dr. S.B. also noted the Veteran’s assertion that he did not report the incident of MST at the time due to feelings of fear and shame, as well as concerns that he wouldn’t be believed or that his sexuality would be questioned. At a VA examination in September 2014, the Veteran reported that upon returning from MOS school he began abusing drugs and alcohol. The examiner noted that, in addition to PTSD, the Veteran had additional mental disorders that interact and exacerbated one another. The examiner opined that the Veteran’s PTSD was less likely than not caused by his in-service stressor, providing no rationale other than stating that his psychiatric disorder existed prior to service from childhood abuse. However, the examiner was also asked to provide an opinion as to whether the psychiatric disorder, which existed prior to service, was aggravated beyond its natural progression by his in-service MST. Here, the examiner did provide a positive opinion, stating that the Veteran’s psychiatric disorder was aggravated beyond its natural progression by the in-service incident of MST, explaining simply that there was “plausibility of explanation.” While the examiner could not describe the increased manifestations of the aggravated condition without resorting to mere speculation, he did opine that the Veteran’s PTSD, as a whole, manifested occupational and social impairment with occasional decrease in work efficiency and inability to perform occupational tasks. In August 2017, the Veteran submitted a Disability Benefits Questionnaire (DBQ) that was completed by his current VA psychologist, Dr. M.M. She noted that the Veteran was also diagnosed with depression and anxiety, and that these could also be symptoms of his PTSD which, as a whole, manifested occupational and social impairment with deficiencies in most areas. While no definitive nexus opinion was provided, Dr M.M. did state that the Veteran provided a history consistent with PTSD due to MST, noting that the Veteran survived his childhood sexual abuse and that his PTSD symptoms did not appear until after the in-service incident. Dr. M.M. also noted the Veteran’s reports that he was functioning highly before the MST, but that after he showed a disrespectful attitude towards the military, broke multiple laws, and developed substance abuse issues – all of which, she stated, were consistent with PTSD due to MST. For the foregoing reasons, the Board finds that the evidence is at least evenly balanced as to whether there is a link between the Veteran’s PTSD and his in-service military sexual trauma. Thus, as the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the criteria of 38 C.F.R. § 3.304(f) has therefore been met and entitlement to service connection for PTSD is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel