Citation Nr: 19178131 Decision Date: 10/10/19 Archive Date: 10/10/19 DOCKET NO. 14-17 752 DATE: October 10, 2019 ORDER Entitlement to service connection for acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is granted. FINDINGS OF FACT The probative evidence of record is at least in equipoise that the Veteran has a current diagnosis of an acquired psychiatric disability, to include PTSD. Resolving reasonable doubt in the Veteran’s favor, his acquired psychiatric disability, to include PTSD is at least as likely as not related to military sexual trauma. 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 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has active service from December 1968 to December 1972. This case is before the Board of Veterans’ Appeals (Board) from June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans’ Law Judge at an August 2014 hearing. This matter was previously before the Board and remanded for a medical opinion in March 2016. Upon return to the Board post remand, a decision was issued denying this claim in April 2018. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board’s April 2018 decision. The claim is again before the Board for review consistent with the JMR. The Veteran contends that his current PTSD is due to a sexual assault suffered during basic training. 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). 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. Following review of the record, the Board concludes that the Veteran has a current acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), that is related to an in-service sexual assault. 38 U.S.C. § § 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The medical evidence of record is divided with regard to the Veteran’s current diagnosis of PTSD, as noted by the Court. In this regard, the Board has considered whether additional remand is required in an effort to obtain a clarifying decision, ultimately concluding that further remand will not assist the Board with review of evidence of record. Rather, to remand this claim for further development would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran, which is to be avoided. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); 38 U.S.C. § 7261(b). Typically, the initial question for consideration is diagnosis of a current disability. In the case of PTSD, however, the validity of the diagnosis is predicated on an established stressor event. Indeed, as the negative opinions here were based on the examiner’s conclusion that the stressor had not been demonstrated, this should be the starting point of the discussion. In this case, three different individuals provided statements detailing how they learned of the Veteran’s in-service sexual assault. The Board finds these statements competent, as each lay witness has a different relationship with the Veteran. The Board finds these statements credible, as each lay witness was told by the Veteran about the sexual assault at a different points in time, and in each statement, the witnesses articulate a unique reason or circumstance under which the Veteran revealed the occurrence of the sexual assault. A March 2010 buddy statement of record provides that in the late 1990s, during a group sexual encounter, the Veteran became upset, left the room, later disclosing that he had been molested by fellow service members. An April 2011 statement from the Veteran’s former spouse provides a lengthy chronology of their relationship, indicating a change in the Veteran’s demeanor after he joined the military, describing the Veteran’s alcohol consumption, an incident of violent behavior, and infidelity. The witness indicated in the early 1990’s, the Veteran ultimately broke down and told her that he had been sexually assaulted during basic training, explaining to her that this incident was what had been underlying his drinking and infidelity, and ultimately the end of their marriage. The witness expressed that she believed the sexual assault had been very traumatizing to the Veteran. In an April 2019 statement, a fellow service member recollected in 1970, he became good friends with the Veteran. On an occasion when the two were going to the Airman Club, the Veteran revealed that he was carrying a firearm for the purpose of self-defense. The Veteran revealed to his friend that he had been gang raped and was afraid. The Board finds the Veteran’s former spouse’s description of the Veteran’s post service behavioral changes to be of substantial weight. Although the Veteran’s work performance during service was stellar, the Veteran’s former spouse provides evidence of the assault in terms of describing social behavior changes and accounts of substance abuse. Taken together, these accounts provide competent, credible, and probative evidence that the assault as described by the Veteran occurred. Additionally, the Veteran completed two military sexual trauma programs in November 2014 and February 2015. His presence in such therapy groups further bolsters his claim. Indeed, these groups are run by trained professionals. There is no indication that such medical professionals found any basis to question the Veteran’s described in-service event; the Board finds the Veteran to be credible and further defers to the medical judgment of his treatment providers, who have accepted his stressor at face value. Regarding the VA opinions of record which conclude against a finding of in-service trauma, such was based on the absence of markers to show that such assault occurred. In this regard, while it is common for those who suffer sexual assault to thereafter undergo a decline in work performance, for example, this of course is not universally true. Indeed, a claimant who manages to maintain a high level of functioning after such an event should not have this held against them. Moreover, per the buddy statements discussed above, the Veteran did experience diminished functioning in his family life, even if his professional functioning continued unaffected. In this case, there are no stark inconsistencies in the Veteran’s report of his trauma and his assertions are corroborated by numerous lay statements. Finally, there is nothing implausible on its face with respect to his hearing testimony. For all of these reasons then, the Board accepts as fact the in-service MST as described by the Veteran. Turning now to the diagnoses of record, in March 2010, the Veteran’s medical records indicate an Axis I diagnosis of PTSD and major depressive disorder (MDD), recurrent, and mild. His treatment notes of April 2010 included the same diagnosis. In June 2010, the Veteran’s depressive symptoms were reportedly worsening, while his PTSD symptoms were improving and the Veteran’s diagnosis was adjusted to reflect PTSD from military sexual trauma. This diagnosis was continued in December 2010, and in December 2010, therapy groups for PTSD and sexual trauma were explored. In April 2011, the Veteran’s diagnosis of PTSD from military sexual trauma was revised to rule out PTSD, seemingly as a result of an outburst the Veteran had regarding his claim being denied. The provider indicated that rather than focusing anger on his trauma, the Veteran was focused on not receiving compensation. In August 2011, the Veteran still had an active prescription for citalopram hydrobromide for mood, PTSD, and anger. In September 2013, the Veteran underwent a VA examination, where a PTSD diagnosis was not confirmed, however the examiner indicated the Veteran’s sexual assault was adequate to support the diagnosis of PTSD. In November 2013, the Veteran sought to reestablish mental health treatment and his history of PTSD from military sexual trauma was noted. A November 2014 letter indicates that the Veteran entered into and completed a military sexual trauma program in October 2014, and enrolled in a military sexual trauma recovery group that was to begin that in November 2014. A February 2015 completion certificate for the recover group is also of record. In July 2015, a mental health diagnostic impression of PTSD related to military sexual trauma was noted. In April 2016, the Veteran was afforded a VA examination, that did not confirm a PTSD diagnosis. The examiner indicated that the stressor of sexual assault was sufficient to support the diagnosis of PTSD but noted that there were no markers to substantiate the Veteran’s stressor, as his evaluations were very positive with high marks for job performance and getting along with others. The examiner indicated there was no evidence of behavioral decompensation after the sexual assault. Again, as discussed above, the Board as fact-finder determines that the record does support the occurance of the in-service assault. As such, the VA opinion holds no probative value. Moreover, CAPRI records of April 2016 indicate an active problem of PTSD and a mental health note of November 2016 indicates a diagnosis of PTSD. Thereafter, in April 2017, a diagnostic impression of PTSD related to military sexual trauma was noted. In August 2017 a mental health provider noted the Veteran is diagnosed with PTSD and an assessment plan of December 2017 referenced PTSD and depression. Finally, mental health records after March 2018 consistently refer to the Veteran as being diagnosed with PTSD. After consideration of all of the medical evidence of record, the Board accepts the treatment references to a diagnosis of PTSD over VA examinations that found against a diagnosis. Accordingly, the record establishes both an in-service assault and a current diagnosis of PTSD. Moreover, the diagnosis here has clearly been predicated on the in-service MST. Thus, the final element of service connection has been satisfied. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disability, to include PTSD, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.