Citation Nr: 20002200 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 18-28 838 DATE: January 9, 2020 ORDER Service connection for posttraumatic stress disorder (PTSD), due to military sexual trauma (MST), is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his PTSD is at least as likely as not related to an in-service MST. CONCLUSION OF LAW The criteria for service connection for PTSD, due to MST, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to August 1972. Service connection for PTSD, due to MST, is granted. 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). In addition to the above stated criteria needed to generally establish service connection, service connection for PTSD has its own requirements. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (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). VA regulations provide that, 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. 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). 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). The United States Court of Appeals for the Federal Circuit observed that 38 C.F.R. § 3.304 (f)(5) specifically states that a medical opinion may be used to corroborate a personal assault stressor, noting that “medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated.” See Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Most significantly, for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. See Bradford v. Nicholson, 20 Vet. App. 200 (2006) (emphasis added). Here, the Veteran did not report his MST during his active duty service, and after-the-fact evidence is the only evidence that is available to establish his stressor. The Veteran asserts that he experienced MST during his active duty service, aboard a ship. In June 2004, during psychiatric treatment at VA, the Veteran “very reluctantly” described a sexual trauma in the military to his psychiatrist. The Veteran reported that he had a joint of marijuana and a fellow service member blackmailed him, that he would report the Veteran to the authorities unless he let the fellow service member perform oral sex on the Veteran. The Board notes that there was no diagnosis of PTSD at the June 2004 reporting of MST, but was later diagnosed with PTSD (MST) in July 2010. Of note, there was no psychiatric claim pending with VA at the time of the 2004 VA psychiatric appointment, and as such, the Veteran is seen to have been relating an experience for the express purpose of receiving treatment. This fact adds weight to the credibility of the recollection, as receiving the best care is seen as a strong incentive to be as truthful as possible. The Veteran was afforded a VA examination in October 2015. After an in-person interview and a review of the Veteran’s claims file, the examiner found that the Veteran did not meet the diagnostic criteria for PTSD under DSM-5 criteria. However, the examiner did diagnose the Veteran with adjustment disorder with anxiety and depressed mood. The Veteran reported that he was sexually assaulted by another service member in 1971. He stated that the service member blackmailed him by threatening to reveal to authorities of the Veteran’s cannabis use, unless he let him perform oral sex on the Veteran. The examiner found that this stressor did not meet the criteria to support a diagnosis of PTSD. The examiner noted that the Veteran engaged in a single homosexual act, out of fear of blackmail and that no markers were noted that support the stressor. The examiner reported that the Veteran was evaluated for MST, but did not meet the DSM-5 criteria for PTSD, but had adjustment disorder with anxiety and depressed mood. The examiner opined that the markers for MST are not supported for PTSD and was less likely than not incurred in or caused by in-service injury, event or illness that occurred during military service. After a careful review of the Veteran’s VA treatment records, they do reveal that he has consistently reported that he had MST to VA mental health professionals since 2004, when he first reported the assault. His treatment records also consistently note that he has PTSD, due to MST, since 2010. The treatment records show that he has been receiving group and individual therapy for his mental health issues since 2003. Although the Veteran first reported the sexual assault in 2004, which the psychiatrist reported that he did so very reluctantly and did not want to discuss further than the description of the assault; in November 2014 he felt comfortable enough to express that he was ready to talk about the MST incident, “I think it has had an impact for years and now I am ready to go into treatment for it.” After making this statement, the Veteran was referred to Tri-Care for specialized counseling for MST. Here, the October 2015 VA examiner found that the Veteran’s reported MST did not support a PTSD diagnosis under DSM-5 and the regional office (RO) found that his MST was not a verifiable event. However, the Veteran’s treatment records show that he has consistently reported MST to treating medical professionals and was diagnosed with PTSD in 2010. The Board finds that the Veteran’s assertions of MST to be credible, since statements made for treatment purposes are inherently credible as it is presumed that a person will be as honest with their treatment providers as possible, in an effort to obtain relief from their symptoms. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Although the Veteran did not report his MST during his active duty service, his after-the-fact medical evidence is deemed sufficient to establish this stressor. See Bradford v. Nicholson, 20 Vet. App. 200 (2006) (Continued on the next page)   The Board notes that the Veteran has been diagnosed with PTSD under DSM-5, as of March 2019. Here, the evidence of record supports a finding that there is a link between the Veteran’s current PTSD symptoms and his MST, as VA mental health professionals have noted since 2010 that his PTSD is due to MST. The Board finds that the October 2015 VA examiner’s negative findings and the Veteran’s VA treatment records which document PTSD, due to MST, starting in 2010, are in relative equipoise. Resolving reasonable doubt in the Veteran’s favor, service connection for PTSD, due to MST, is granted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.