Citation Nr: 21002621 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 15-22 834A DATE: January 14, 2021 ORDER Service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current diagnosis of PTSD is related to an in-service stressor that is supported by credible evidence. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1971 to May 1974. This case is before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for PTSD. The Veteran’s notice of disagreement (NOD) was received in May 2014. The RO issued a statement of the case (SOC) in May 2015. The Veteran’s VA Form 9, substantive appeal to the Board, was received in July 2015 at which time the Veteran requested a hearing. The hearing request was withdrawn in April 2017. In lieu of her testimony, the Veteran’s representative submitted a brief in lieu hearing associated with the claims file in May 2017. In March 2019 the Board remanded the case to the RO in an attempt to obtain relevant service treatment records (STRs). The RO made several documented attempts to locate the records, however the facility in question provided a negative response, indicating that it does not maintain records for more than five years. The remand directive was fulfilled. Entitlement to service connection for acquired psychiatric disorder to include PTSD The Veteran contends that she has PTSD as a result of an in-service sexual assault. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 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); Caluza v. Brown, 7 Vet. App. 498 (1995). 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 claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Under 38 C.F.R. § 4.125(a), the diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), American Psychiatric Association (2013). For PTSD, service connection 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 claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). If a PTSD claim is based on personal assault in service, evidence from sources other than the veteran’s 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). 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. Id. Further, for PTSD claims based on personal assault, medical opinion evidence may 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). Thus, “a medical opinion based on a personal examination of a veteran can be used to establish the occurrence of a stressor.” Id.; see Patton v. West, 12 Vet. App. 272, 279-280 (1999) (holding that in PTSD cases based on personal assault, a VA examiner’s finding that the claimant’s PTSD is etiologically linked to the alleged in-service stressor can serve as verification that the stressor occurred). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board concludes that the Veteran has a current diagnosis of PTSD, related to an in-service stressor that is supported by credible evidence. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304. VA treatment records show the Veteran has a current diagnosis of PTSD. In November 2018, a private psychiatrist examined the Veteran applying DSM-5 criteria. After a full review of the Veteran’s entire claims file, including her STRs, service personnel records (SPRs), and an in-person examination the doctor diagnosed her with PTSD. See November 2018 DBQ. In this regard, the examiner found that the Veteran’s reported stressors were adequate to support a diagnosis of PTSD; and, that she experiences various mental health symptoms under PTSD Criteria B through E. Additionally, the examiner indicated that criteria F through H also support a PTSD diagnosis. Therefore, with respect to the claim of service connection for PTSD, the current disability requirement is met. As to the Veteran’s in-service personal assault, the Veteran sought treatment in August 2010 at a VA mental health outpatient clinic. At that time, she reported that in December 1973, while at a small party comprised of all service members, that she was sexually assaulted by four GIs. The Veteran further contends that the assault resulted in a pregnancy which was terminated in March or April 1974 while she was hospitalized for a pinched nerve after a trainee had pushed her down a flight of stairs at Wilford Hall USAF Hospital, Lackland AFB. The Veteran states that she never reported the assault to authorities “as the military was considered a man’s world and basically anything goes for them without repercussions.” She never said anything to her family because of fear, shame and fear of being disowned. See August 2010 VA mental health outpatient treatment report; September 2013, May 2014, April 2019 Statements in Support of a Claim - VA Form 21-4138s; VA Form 21-0781a. The Veteran’s service records do not document any reported sexual assault during service nor medical treatment related to the assault. This is consistent with the Veteran’s statements that she did not report the rape, because she was ashamed and did not believe these men would face any consequences for their conduct. The sole fact that a veteran never reported an in-service sexual assault may not be considered as relevant evidence tending to prove that a sexual assault did not occur. AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). In this regard, the Veteran’s service treatment records (STRs) show that the Veteran was treated for various ailments, including neck and back pain, at the Lackland AFB hospital in 1972 and 1973. The STRs also show that the Veteran was treated for back pain in April 1974 from a fall; and, the Veteran’s May 1974 discharge exam specifically notes that the Veteran had back and leg trouble in April 1974 and was treated with Fiorinal and Adenolin at the “WH USAF Med Cent, LAFB, TX.” After active duty, the Veteran served in the Air National Guard, and the STRs show that she underwent retention examinations in March 1976 and May 1978; and, had a separation examination in May 1979. The May 1978 examination, again, shows that the Veteran was treated at the Lackland AFB hospital in 1974 for a pinched nerve. The STRs do not document that the Veteran was pregnant or that she terminated a pregnancy. As such the RO attempted to retrieve any missing STRs. However, the RO was unable to locate any treatment records from Wilford Hall USAF Hospital, Lackland AFB related to the Veteran’s reported pregnancy and termination because the facility does not maintain patient records more than five years (and the request was made in conjunction with this claim). See June 2020 Wilford Hall Memorandum. Nonetheless, a review of the Veteran’s personnel record shows that the Veteran’s performance marks dropped slightly right around the time of the alleged December 1973 MST, and this was part of the rationale used by the VA examiner who provided a DSM-5 diagnosis of PTSD based on the Veteran’s MST stressor. The temporary drop in performance as shown in the personnel records also serves as supporting evidence that the claimed MST stressor actually occurred. Moreover, the lay statement of another Sergeant corroborates the fact that the Veteran was at Wilford Hall USAF Hospital, Lackland AFB for medical treatment. The Sergeant’s statement is consistent with the Veteran’s contention that she had received medical treatment from that facility on that date. See STRs; November 2010 Lay Statement. The Board finds that MST has occurred as maintained by the Veteran. The Veteran’s allegations have been consistent regarding MST in service, and the Board finds no reason to doubt the Veteran’s credibility to include the alleged sexual assault in service. The claimed stressors are consistent with the places, types, and circumstances of service; the record does not contain clear and convincing evidence to the contrary: therefore, the Board finds the Veteran’s reports of the MST credible. Furthermore, her assertions regarding MST have been corroborated by her close friend Ms. H-W who observed the personality and behavioral changes consistent with MST and in whom the Veteran confided. Prior to service, Ms. H-W describes the Veteran as very articulate, well-grounded, and confident. According to Ms. H-W, once she reunited with the Veteran after her time in service, she “saw a major difference in her” and describes the Veteran as having lost her confidence, one who cried at the drop of a hat and appeared ‘traumatized’…easy to anger and seem[ed] to be very depressed. It was at that time that the Veteran shared the news of her personal assault. See Ms. H-W letters dated September 2013, May 2017, and November 2018. In these letters, Ms. H-W describes having seen the Veteran’s symptoms progress drastically over the years and that she suffers from horrendous nightmares in which the Veteran wakes up angry, guilty, in shame and unable to return to sleep which the friend is certain to be “directly related to what happened to her, because before that, she was able to sleep peacefully.” The friend describes the Veteran’s current state as one of apprehension around strangers especially members of the opposite sex, even vets she has known for years. Ms. H-W has observed the Veteran’s condition get worse with age as she is unable to concentrate, multi-task or function on a daily basis. Having seen the Veteran withdraw from interaction with the outside world, the friend attributes this to “the fear, guilt of the abortion and the physical pain she suffer[ed] from being pushed down the stairs” and the “traumatic sexual assault” that the Veteran experienced “during her Air Force career as she certainly was not like this before.” The Board finds Ms. H-W credible as the symptomology she has observed in the Veteran is consistent with both MST related PTSD as well as the medical opinions associated with this case. The Veteran’s inherent credibility coupled with the corroboration of the changes in her personality, consistent with MST, observed by a close friend, are sufficient to establish that the Veteran’s claimed stressor of MST in service actually occurred. 38 C.F.R. § 3.304(f)(5); see Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing the Board’s inherent fact-finding ability); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence is in relative equipoise, reasonable doubt is resolved in the claimant’s favor). Moreover, the medical opinions of record, namely the March 2018 VA psychiatry progress notes and the September 2018 private medical opinion, which appear to credit the Veteran’s assertions regarding in-service MST, bolster the Board’s finding that MST did indeed occur in service. Menegassi, 638 F.3d at 1382; Patton, 12 Vet. App. at 279-80. The VA mental health outpatient treatment records reflect that the Veteran has sought mental health treatment on a fairly regular basis since approximately January 2008. In a July 2010 progress note, the Veteran’s VA psychiatrist described the Veteran as having military sexual trauma which resulted in PTSD. The psychiatrist noted some of the Veteran’s symptoms including recurring nightmares, flashbacks that cause her anxiety, hypervigilance, and overall impaired functioning. She reported that the PTSD symptoms over the past several years of treatment are directly related to the military sexual trauma. See psychiatry progress note March 2018; psychiatry progress note July 2010. After a complete review of the claims file, including all medical treatment, the November 2018 private psychiatrist concluded, it is at least as likely as not that the Veteran’s acquired psychiatric disorder to include PTSD was incurred in or caused by sexual assault during service. According to the private physician, the his opinion was based on the Veteran’s endorsement of exposure to the MST event that resulted in the emergence of PTSD-like symptomology, findings from the aforementioned VA psychiatrist that are consistent with his opinion, buddy statement of Ms. H-W, and in-service documentation that reveals the Veteran’s military performance slightly declined following the alleged MST event which may be used as a marker to substantiate the PTSD. Based on the current diagnosis of PTSD, supporting evidence of behavioral changes following the described stressors, and the positive nexus opinion of the private physician, the Board resolves all doubt in the Veteran’s favor and finds her acquired psychiatric disorder, diagnosed as PTSD, is causally related to in-service sexual assaulted. Accordingly, service connection for PTSD is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Ardalan, 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.