Citation Nr: 21000487 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-09 746 DATE: January 5, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s acquired psychiatric disability to include PTSD is related to his active military service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, an acquired psychiatric disability to include PTSD was incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1986 to July 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated August 2013 and February 2014 of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for PTSD. The Veteran filed a notice of disagreement (NOD) in September 2014 and a statement of the case (SOC) was issued in December 2016. He perfected a timely appeal in February 2017. In February 2020, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. In May 2020, the Veteran, through his attorney, submitted a private nexus opinion from Dr. Q. A.-S. directly to the Board. Although the Veteran did not submit a waiver of local jurisdiction pursuant to 38 C.F.R. § 20.1304(c), he is not prejudiced by the Board’s consideration of this evidence in the first instance as the Board is herein granting the appeal in full. The Board observes that, in addition to PTSD, the medical evidence of record also documents diagnoses of chronic mixed adjustment disorder and depression. Based on the Veteran’s assertions and the clinical evidence of record, the Board finds that the Veteran is asserting entitlement to service connection for a psychiatric disability or disabilities, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue on appeal has been restated accordingly. 1. Entitlement to service connection for an acquired psychiatric disability to include PTSD. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Diseases diagnosed after discharge may still be service connected when all the evidence, including pertinent service records, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including psychosis, when manifested to a compensable degree within the initial post-service year. See 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). There are particular requirements for establishing 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). Entitlement to service connection for PTSD has specific requirements of medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (requiring diagnosis to conform to DSM-IV and be supported by findings on examination report); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). VA has amended 38 C.F.R. § 4.125(a) to require the diagnosis to conform to DSM-5, but this amendment does not apply to cases such as this one that were certified to the Board prior to August 4, 2014. See Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (Mar. 19, 2015). The Board notes that, with regard to stressor verification, the VA regulation at 38 C.F.R. § 3.304(f) was amended to liberalize the requirement of verification or corroboration of a veteran’s claimed in-service stressor events in a PTSD claim. 38 C.F.R. § 3.304(f)(3), as added in 75 Fed. Reg. 39,843-852 (July 13, 2010). However, these revisions do not pertain to claims of service connection for PTSD that, as here, are predicated on personal (sexual) assault, combat, or prisoner of war (POW) experience because these types of claims already have their special provisions for establishing the occurrence of a stressor in these other type situations. Acevedo v. Shinseki, 25 Vet. App. 286 (2012) (38 C.F.R. § 3.304 (f)(3) applies only to hostile military or terrorist activity, and generally does not apply in sexual assault cases among military personnel). The only notable change for claims predicated on personal assault was the redesignation of this type of claim from subpart (f)(4) to (f)(5). Under 38 C.F.R. § 3.304(f)(5), evidence of behavior changes following the claimed in-service assault may constitute credible supporting evidence of the stressor. 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. VA may submit any evidence that it received to an appropriate mental health professional for an opinion as to whether it indicates that a personal assault occurred. With regard to personal assault cases, the Court has held that “VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis.” Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996) (citing VA Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c (8)-(9)) (later redesignated as Part VI, 11.38b(2), and now rescinded), aff’d 124 F.3d 228 (Fed. Cir 1997). The provisions of M21-1 (regarding special evidentiary procedures for PTSD claims based on personal assault) are substantive rules that are equivalent to VA regulations. YR v. West, 11 Vet. App. 393 (1998) & Cohen v. Brown, 10 Vet. App. 128 (1997). In this case, the Veteran asserts that he has PTSD, which began during his military service. Specifically, he argues that he developed a psychiatric disorder as a result of sexual harassment and assault by a superior officer who served as his assistant basketball coach. See the PTSD stressor statement dated February 2012. He reported that this pattern of harassment and abuse took place while he was stationed in Germany in 1986 through 1987. Id. He began to abuse alcohol after the harassment and abuse. See, e.g., the VA treatment records dated May 2015. The Veteran stated that he was forced to attend counseling as a result of this alcohol abuse. See, e.g., the Board hearing transcript dated February 2020. The Board initially notes that the record does not reflect, and the Veteran does not contend, that the stressor upon which he relies is related to combat or POW experiences. Thus, the record must contain service records or other credible evidence which corroborates the reported stressor. See 38 C.F.R. § 3.304(f)(5). The Board must determine the credibility and probative value of the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1977) and cases cited therein (holding that the Board has the duty to assess credibility and weight to be given to the evidence). As a lay person, the Veteran is competent to provide evidence of observable events, including having been sexually assaulted. See Savage v. Gober, 10 Vet. App. 488, 496 (1997). The question thus becomes one of credibility. The Board recognizes that the present case, involving allegations of sexual assault, falls 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. See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999). Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault. See YR v. West, 11 Vet. Ap. 393, 399 (1998). To this end, the record reflects that the Veteran served on active duty from August 1986 to July 1989. Not surprisingly, there is nothing in his service personnel and treatment records that specifically documents sexual harassment or assault at any point during his military service. However, the Veteran’s service treatment records (STRs) contain a November 1988 Wellness Check, which indicates that the Veteran’s “drinking habits suggest that you may need some help. Continued heavy consumption can hurt your family, your health, as well as your career.” The Wellness Check also indicated that the Veteran reported a lot of stress. Additionally, a Certificate of Achievement indicated that the Veteran was a member of the 1986 to 1987 B Battery Championship Basketball Team. Service personnel records confirm the Veteran was stationed in Germany during that time. VA treatment records dated from January 2011 documented the Veteran’s report that, when he was eighteen years old, his squad leader attempted to seduce him and touched him inappropriately. A diagnosis of major depression was indicated. VA treatment records dated from January 2012 documented diagnoses of mixed adjustment disorder, as well as PTSD caused by military sexual trauma. VA treatment records dated May 2015 indicated a diagnosis of “military sexual trauma causing military related PTSD, insomnia, and remitted episodic alcohol abuse.” The Veteran submitted a March 2020 nexus opinion from Dr. Q. A.-S., a psychologist, in support of the claim of entitlement to service connection for PTSD. Dr. A.-S. reported that the Veteran had no history of psychiatric symptoms, treatment, or diagnoses prior to his military service. During his military service, the Veteran felt trapped by the senior officer who molested him in Germany. Dr. A.-S. reported, “[b]ased on the totality of evidence and accurate psychiatric diagnostic formulation for [the Veteran] would involve depression, PTSD, and alcohol use disorder in partial remission.” He explained that the Veteran “has a clear history of PTSD and depression for which he has been receiving treatment since 2011.” Dr. A-S. continued, “[h]is description of events has remained consistent throughout records. All providers in the record consistently opine that the trauma he experienced in the military directly caused his depression and PTSD.” Dr. A.-S. further indicated that the Veteran suffers from alcohol use disorder as secondary to PTSD and depression. At the February 2020 Board hearing, the Veteran explained his behavioral changes after the in-service sexual assault. He described the in-service harassment and assault by the superior officer who was his assistant basketball coach. Id. at pg. 3. He indicated that he began drinking heavily after the assault. Id. at pgs. 3 to 4. After a review of the record, the Board has determined that the evidence of record is at least in equipoise as to whether the Veteran’s diagnosed PTSD was incurred during his military service. With respect to the Veteran’s reported military sexual trauma, the Board finds no adequate basis to reject the competent lay statements and medical evidence of record that is favorable to the Veteran, based on a rational lack of credibility or probative value. See Madden, supra; see also Evans v. West, 12 Vet. App. 22, 26 (1998). The evidence is not unequivocal; however, the Board nevertheless finds that the evidence is at least in equipoise. As described above, the November 1988 Wellness Check documented the Veteran’s heavy alcohol consumption, as well as report of stress during his military service. In sum, the Board therefore finds that the in-service stressor identified by the Veteran has been corroborated. See 38 C.F.R. § 3.304(f)(5). Moreover, if a PTSD claim is based on an in-service personal assault, evidence from sources other than a veteran’s service records may corroborate an account of a stressor incident. Further, the Court has said that the categorical statement, used in other decisions, such as Moreau and Cohen, that an opinion by a mental health professional based on a post-service examination cannot be used to establish the occurrence of a stressor is not operative in a personal assault case. See Patton v. West, 12 Vet. App. 272, 279-280 (1999). Indeed, in Menegassi v. Shinseki, 628 F.3d 1379 (Fed. Cir. 2011), the Federal Circuit held that under 38 C.F.R. § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether a claimed stressor occurred, and such opinion evidence should be weighed along with the other evidence of record in making this determination. Id. at 1382 & n. 1. As described above, the Veteran has been diagnosed with PTSD due to military sexual trauma under the DSM-5 criteria by VA and private psychologists and treatment providers. Overall, the Board finds that the record supports an award of service connection for PTSD as due to military sexual trauma. To this end, the Board placed significant weight on the findings of the positive nexus statement by Dr. A.-S. who considered the Veteran’s medical history in providing a diagnosis of PTSD due to military sexual trauma with secondary diagnoses of depression and alcohol use disorder. Moreover, given the Veteran’s credible lay statements, the evidence is at least evenly balanced as to whether the Veteran’s diagnosed acquired psychiatric disorder to include PTSD is related to his military service including the claimed military stressor. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection is warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.