Citation Nr: 21000213 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 18-22 994 DATE: January 4, 2021 ORDER Service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD), claimed as military sexual trauma (MST), is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, his psychiatric disorder, to include PTSD, claimed as MST, was caused by his period of active service. CONCLUSION OF LAW The criteria to establish service connection for a psychiatric disorder, to include PTSD, claimed as MST, are met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1983 to June 1987. This matter was previously before the Board of Veterans’ Appeals (Board) in April 2020 when the issue of service connection for a psychiatric disorder, to include PTSD, claimed as MST, was remanded for further development. Further development having been completed in accordance with the April 2020 Board remand; the matter is once again before the Board. Service connection for a psychiatric disorder, to include PTSD, claimed as MST, is granted. The Veteran contends that he was sexually assaulted in 1984 in-service, and that this assault led to his psychiatric disorder. There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f). However, under 38 C.F.R. § 3.304(f)(5), "[i]f 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" and that "[e]xamples of such evidence include, but are not limited to: records from mental health counseling centers, hospitals, or physicians." The United States Court of Appeals for the Federal Circuit stated in Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011) that "[w]e hold that under 38 C.F.R. § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated" and that "[s]ection 3.304(f)(5) allows a veteran claiming PTSD from an in-service military assault to submit evidence other than in-service medical records to corroborate the occurrence of a stressor." The Court also held that in diagnosing PTSD, doctors typically rely on the unverified stressor information provided by the patient. Thus, a doctor's recitation of a veteran-patient's statements is no more probative than the veteran-patient's statements made to VA. Therefore, VA is not required to accept a doctor's diagnosis of PTSD due to a personal assault as proof that the stressor occurred. Opinions given by such professionals are weighed along with all the evidence provided. VA is not required to accept a doctor's diagnosis of PTSD due to a personal assault as proof that the stressor occurred or that the PTSD is service connected. The mere submission of a medical opinion, pursuant to 38 C.F.R. § 3.304(f)(5), does not preclude the Board from making a factual determination regarding the weight to be given that opinion. In his February 2020 Board hearing, the Veteran stated that he was assaulted in-service by a sergeant in 1984. However, he stated that he did not report the incident in-service. He stated that he was first treated for a psychiatric disorder in approximately 2013. The Veteran's service treatment records (STR) do not contain any complaints of an assault. However, a June 1984 STR indicates that the Veteran was treated for a urethral discharge. Additionally, a February 1985 STR indicates that the Veteran was treated for nongonococcal urethritis (NGU). The examining physician reported that the Veteran was treated with penicillin and that the disease had no sequalae. In a November 2017 VA examination, the examiner diagnosed alcohol use disorder, cocaine use disorder, and unspecified depressive disorder, but found the Veteran did not meet the criteria for a diagnosis of PTSD under DSM-V criteria. The examiner noted that the Veteran reported MST in 1984, but that the Veteran did not report it in-service. The examiner stated that the Veteran's clinical presentation does not meet criteria for PTSD. The examiner opined that the Veteran's current depressive disorder is less likely than not due to the MST he has reported. The examiner noted that specific markers could not be found in Veteran's records. The examiner opined that the Veteran's primary diagnoses are substance use disorders, and depressive symptoms that are likely a result of his long history and consequences of substance abuse. However, the record indicates that the examiner did not consider the STRs that indicate treatment for urethral discharge and NGU. In an April 2020 statement, the Veteran’s sister stated that she noticed that the Veteran’s personality changed between 1984 and 1985. She stated that she noticed that the Veteran was distant, down, and depressed. She also stated that the Veteran experienced what she perceived as anxiety attacks at night. She stated that the Veteran would cry when she attempted to ask what happened to him in-service. She stated that she believes that incidents that occurred while the Veteran was in-service have scarred him and that he has not been able to have a normal relationship with anyone since his service. Pursuant to the April 2020 Board remand, a VA addendum opinion was provided in May 2020 in which the examiner was asked to specifically address the STRs that indicate treatment for urethral discharge in June 1984 and NGU in February 1985, which are markers for PTSD, and to provide an opinion as to whether any current diagnosis of PTSD is etiologically related to the Veteran’s service. The examiner stated that he is unable to determine whether in-service evidence of urethral discharge and NGU are markers for PTSD without resorting to mere speculation. The examiner stated that "an opinion rendered about these conditions are beyond my area of expertise." An additional VA addendum opinion was provided in October 2020 in which the examiner was asked to provide an opinion regarding whether the Veteran has an acquired psychiatric disorder, to include unspecified depressive disorder that is related to his service. The examiner stated that he is unable to determine whether or not the Veteran's unspecified depressive disorder is due to the personality changes, depression, and anxiety attacks observed by his sister while on active duty, without resorting to mere speculation. In a private, November 2020 psychiatric examination, upon a clinical psychiatric evaluation and a lengthy recitation of the Veteran’s mental health history, the psychiatrist diagnosed the Veteran with PTSD in accordance with DSM-V guidelines. The psychiatrist opined that, considering history as related by the Veteran, the current examination, and a review of the medical records, the Veteran’s claimed and current DSM-V diagnosis of PTSD is more likely than not related to his in-service event, MST. The psychiatrist opined that the Veteran’s description of events is sufficient to meet Criterion A regarding direct exposure of traumatic events for PTSD under the DSM-V. The psychiatrist noted that the Veteran reported that after his assault, he began to develop intrusion symptoms, avoidance symptoms, negative alterations in cognitions and mood, and alterations in arousal and reactivity that were consistent with the diagnosis of PTSD. The psychiatrist stated that his reaction as the victim of sexual assault is both reasonable and expected. The psychiatrist noted that the Veteran reported that he did not pursue psychiatric care while in-service for fear that receiving a mental health diagnosis would negatively impact the longevity of his military career. In particular, the psychiatrist noted that the Veteran reported feeling intense fear, horror, and physiological distress when he was sexually assaulted in 1984 by a higher-ranking servicemember. The Veteran reported that he did not report the MST event due to fear of not being believed, worries of retaliation, humiliation, stigmatization, and overwhelming feelings of betrayal and shock. The psychiatrist noted that she found the Veteran to be a credible witness because his statements are consistent with the records and the natural history of his disease processes. The psychiatrist noted that there is ample research to support that the majority of sexual assaults are not reported. The psychiatrist cited literature that indicates that only 230 out of every 1,000 sexual assaults are reported to police and that members of the military report sexual assault at a much lower rate than the general population. The psychiatrist concluded that the Veteran has been experiencing a persistent degree of PTSD symptoms following his in-service stressor event and stated that these difficulties adversely impact multiple facets of life, including social, occupational, marital, and family environments. Upon review of the evidence, resolving reasonable doubt in the Veteran's favor, his psychiatric disorder, to include PTSD, claimed as MST, is attributable to active service. The specific requirements for entitlement to service connection for PTSD were outlined above and include, essentially, a medical diagnosis of PTSD; a link between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The medical evidence of record satisfied these three requirements. With specific respect to the last element, credible supporting evidence that the claimed in-service stressor occurred, as noted above the Federal Circuit has held "that under 38 C.F.R. § 3.304(f)(5), 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 (Fed. Cir. 2011). The Board notes that 38 C.F.R. § 3.304(f)(5) states that "VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred." Upon review, the evidence provided by the private psychiatrist in November 2020 satisfied the purpose of this provision, as the information provided indicated that she felt that the reported personal assault occurred. The totality of the records offered corroboration of the Veteran's account of the reported stressor. See 38 C.F.R. § 3.304(f)(5) (stating that in PTSD claims 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" and that "[e]xamples of such evidence include, but are not limited to: records from mental health counseling centers, hospitals, or physicians"). (Continued on the next page.) The criteria to establish service connection for a psychiatric disorder, to include PTSD, claimed as MST, have been met and the Veteran's claim is therefore granted. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f)(5). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.