Citation Nr: 20028034 Decision Date: 04/21/20 Archive Date: 04/21/20 DOCKET NO. 15-14 962 DATE: April 21, 2020 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), sexual abuse of adult, depressive disorder, and anxiety disorder, is granted. FINDING OF FACT The evidence supports a finding that the Veteran has current diagnoses of PTSD, sexual abuse of adult, depressive disorder and anxiety disorder, that are related to his active military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, diagnosed as PTSD, sexual abuse of adult, depressive disorder and anxiety disorder, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army from August 1973 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2013 rating decision of the regional office (RO) of Department of Veterans Affairs (VA) in Des Moines, Iowa. In August 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the electronic claims record. The Veteran contends and testified during his August 2018 Board hearing that he has posttraumatic stress disorder (PTSD) due to military sexual trauma (MST). See, August 2018 Board Hearing Transcript. See, August 2013 Psychologist Progress Notes. However, in addition to clinical diagnoses of PTSD the Board notes that the Veteran’s extensive VA clinical records over the period of October 2012 to August 2013 also contain diagnoses of sexual abuse of adult, depressive disorder, and an anxiety disorder, for which service connection is warranted. Thus, in accordance with Clemons, the Board has recharacterized the issue on appeal as a claim for entitlement to service connection for an acquired psychiatric disability, to include PTSD, sexual abuse of adult, depressive disorder and anxiety disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then, generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303 (b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same, and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Acquired Psychiatric Disorders The Veteran contends that he has PTSD as a result of his military sexual trauma (MST) that occurred sometime between September and October 1975. See, August 2018 Board Hearing Transcript. See, August 2013 Psychologist Progress Notes. As an initial matter, in addition to the elements for service connection, a diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM). 38 C.F.R. § 3.304(f). If a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran's service records may corroborate his account of the stressor. 38 C.F.R. § 3.304(f)(5). Although there is an indication that the Veteran underwent some remission of his PTSD over the period of October 2012 to August 2013, there is also evidence that this diagnosis continued throughout this period as one of the Veteran’s continuing diagnoses that was based at least in part on the Veteran’s self-report of MST. Thus, giving the Veteran the benefit of the doubt, the Board finds that the evidence of record is sufficient to demonstrate clinical PTSD diagnosis due to MST in accordance with 38 C.F.R. § 3.304(f)(5). In addition, the Board finds that service connection for sexual abuse of adult, an anxiety disorder, and a depressive disorder is also warranted in this case. Notably, the Veteran’s treating VA psychiatrist’s (Dr. D.G.) evaluation, previously referenced, reflects such clinical diagnoses after considering the Veteran’s medical, family, social and work history, including the Veteran’s own statements regarding his in-service and post-service history. Further, the Veteran testified that since his alleged personal assault in service in 1975, his life has never been the same, noting that he became withdrawn, his job performance significantly deteriorated for the duration of his military service, and he was disciplined for several infractions, which led to a recommendation for a general discharge, and ultimately heavy alcohol and drug use, as a way to cope. The Board notes that the Veteran’s military personal record reflects two Article 15 violations on March 3, 1976 and March 25, 1976, respectively, including a reduction in rank from E-4 to E-1, and a temporary forfeiture in pay and extra duty assignments. After careful consideration, the Board finds that the weight of the evidence is at least in equipoise as to whether the Veteran’s currently diagnosed PTSD, sexual abuse of adult, depressive disorder and anxiety disorder began in service. The Board is aware that there is no objective evidence of psychiatric treatment in service, and that the Veteran was also never afforded a VA psychiatric examination. However, as illustrated above, the Veteran has provided medical evidence, in the form of an evaluation from a VA psychiatrist, and lay statements from himself that have also been linked to his current psychiatric pathology. The Veteran’s failure to undergo any in-service psychiatric treatment is not fatal to his claim, particularly given his credible reports of a change in his personality before his military separation and his treating psychiatrist’s clinical diagnoses of PTSD, sexual abuse of adult, depressive disorder, and anxiety disorder, based on the overall evidence of record, including the Veteran’s self-report. Moreover, there is no probative evidence of record that directly controverts the Veteran’s psychiatrist’s evaluation. The Board also finds the Veteran’s sworn testimony during the August 2018 Board hearing to be highly credible. Based on the above, the Board concludes that the positive and negative evidence are at least evenly balanced. Accordingly, the Board finds that service connection for an acquired psychiatric disorder, diagnosed as PTSD, sexual abuse of adult, depressive disorder, and anxiety disorder, is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.