Citation Nr: 21004471 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 05-38 105 DATE: January 27, 2021 ORDER Service connection for an acquired psychiatric disability, to include major depressive disorder and posttraumatic stress disorder (PTSD) is granted. Service connection for hypertension is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his acquired psychiatric disorder, to include major depressive disorder and PTSD, is at least as likely as not related to in-service sexual assault. 2. The Veteran’s hypertension is secondary to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include major depressive disorder and PTSD are met. 38 U.S.C.§§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f). 2. The criteria for service connection for hypertension as secondary to service-connected PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to December 1970. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from a February 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a May 2017 hearing. A transcript of the hearing is associated with the claims file. The Veteran’s claims were previously denied in a February 2009 Board decision, which the Veteran appealed to the Court of Appeals for Veterans Claims (the Court). In November 2009, the Court set aside the February 2009 Board decision pertaining to the Veteran’s hypertension and PTSD claims and remanded such claims for further development, including the procurement of federal records pertaining to the Veteran’s claimed in-service stressors and medical treatment records. In May 2010, the Board remanded the Veteran’s service connection claims for an acquired psychiatric disability and hypertension for further development, including(1) the procurement of additional treatment records; and (2) the verification of in-service stressors asserted by the Veteran, including (a) a firefight with a German spy; and (b) a helicopter crash in Germany. A March 2012 Supplemental Statement of the Case (SSOC) indicated that in response to the Board’s May 2010 Remand, the AOJ had attempted to corroborate the Veteran’s asserted stressors by contacting the Joint Service Records Research Center (JSRRC),the U.S. Army Combat Readiness/Safety Center, and the Army Crime Records Center. The AOJ prepared a memorandum summarizing the attempts to obtain the necessary records, but because the search for records did not result in the production of corroborating evidence, a VA examination was not scheduled. In May 2012, the Board again remanded the Veteran’s claims for further development, including the following: (1) the procurement of additional VA treatment records indicating that the Veteran had been diagnosed with PTSD and other psychiatric conditions; (2) the procurement of records from the Social Security Administration (SSA) that may be relevant to the Veteran’s claims; and (3) the scheduling of a VA psychiatric examination and the issuance of an examination report acknowledging and commenting on the significance, if any, of Veteran’s reported in-service stressors, as well as all previous psychiatric diagnoses provided since November 2004, including PTSD. In a May 2013 Board decision, the Veteran’s service connection claims for an acquired psychiatric disability and hypertension were again denied, and the Veteran again appealed the decision to the Court. In a September 2014 memorandum decision, the Court set aside the Board’s decision in part and remanded the case for further development, including the procurement of the Veteran’s unit records from May 14, 1969 to December 1970. In June 2015, the Board again remanded the Veteran’s claims for further development, including the following: (1) the issuance of the required notice to the Veteran pursuant to 38C.F.R. §3.304(f); (2) the procurement of additional treatment records; (3) a request to the Department of the Army or other appropriate entity to obtain the Veteran’s unit records from May 14, 1969, through December 1970; (4) a review by the AOJ of the overall record; (5) the issuance by the AOJ of a finding regarding which, if any, in-service stressors claimed by the Veteran have been corroborated by the evidence of record; and (6)the procurement of an addendum medical opinion as to whether any of the in-service stressors claimed by the Veteran has been corroborated by the evidence of record. More recently, in May 2019, the Board again remanded the Veteran’s claim for further development, including the following: (1) a request to the Department of the Army or other appropriate entity to obtain the Veteran’s unit records from May 14, 1969, through December 1970; (2) a review by the AOJ of the overall record; (3) the issuance by the AOJ of a finding regarding which, if any, in-service stressors claimed by the Veteran have been corroborated by the evidence of record; and (4) the procurement of an addendum medical opinion as to whether any of the in-service stressors claimed by the Veteran has been corroborated by the evidence of record. The case returned to the Board for further appellate review. Service Connection Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection for PTSD requires the presence of three elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304 (f). With respect to the third element, if the evidence shows that a veteran engaged in combat and the veteran is claiming a combat-related stressor, no credible supporting evidence is required. Id.; see also Doran v. Brown, 6 Vet. App. 283 (1994). In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran’s assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). For the purposes of establishing service connection, medical evidence diagnosing PTSD must be in accordance with 38 C.F.R. § 4.125 (a), which refers to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 5th ed. (DSM-5) as the source of criteria for the diagnosis of claimed psychiatric disorders. DSM-5 provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person’s response involved intense fear, helplessness, or horror. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder and posttraumatic stress disorder (PTSD) The Veteran contends that his current acquired psychiatric disability was caused by several in-service stressors that occurred while he was stationed in Germany, including the following: (1) his armed confrontation with a German spy; (2) his observation of a helicopter crash; (3) his observation of a self-inflicted gunshot wound; (4) his observation of an accidental discharge of a weapon during training; (5) his participation as a mock prisoner of war during a training exercise; (6) his observation of a severed finger subsequent to a motor vehicle accident; and (7) a May 1969 military sexual trauma (MST) and personal assault. In multiple statements submitted by the Veteran he has related that he was sexually assaulted by another servicemen in May 1969. See October 2016 VA Form 0781. In his May 2017 Board hearing, the Veteran testified that he did not report the incident while in service and he never told anyone about it because he was embarrassed and frightened because the attacker was part of the Black Panther movement and he was threatened to be killed if he said anything. He testified that he “blacked it out”. Additionally, he testified that he started to drink a lot, having nightmares, symptoms and anxiety issues since service. The Veteran's service treatment records are completely silent for any reports of or treatment for an MST, or any other symptom associated with the same. However, this does not mean the incidents cannot be corroborated. Indeed, 38 C.F.R. § 3.304(f)(5) states that the 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.” Therefore, if the record contains an opinion from a medical professional who diagnoses PTSD and bases said diagnosis on an appellant's reports of MST, the appellant's allegations of MST can be considered corroborated. As will be further discussed below, the record in this case contains such a medical opinion. VA treatment records show the Veteran has been diagnosed with moderate recurrent major depression, alcohol dependence and posttraumatic stress disorder (PTSD). The record present conflicting evidence as to whether the Veteran has PTSD. A July 2005 PTSD assessment concluded at the time that the Veteran’s clinical picture was not supportive of PTSD. However, in June 2006 a VA psychologist diagnosed PTSD. More recently, an October 2020 VA examination confirmed a diagnosis of PTSD. In October 2012, the Veteran underwent a VA psychiatric examination. The VA examiner opined that the Veteran does not currently suffer from PTSD because despite manifesting psychiatric symptoms, he found the Veteran’s report of his May 1969 MST/personal assault stressor to lack credibility on the following grounds: (1) at the time of the October 2012 VA examination, the Veteran was unable to recall the date of the MST/personal assault stressor; (2) the Veteran’s service treatment records are silent for any in-service treatment for injuries sustained in the May 1969 MST/personal assault, and thus did not provide corroboration for his contention that he sustained a broken rib in connection with the attack; (3) the Veteran had declined to disclose the May 1969 MST/personal assault to previous VA examiners; (4) the Veteran has reported several other in-service stressors; and (5) the examiner found the statements submitted by the Veteran’s brother to lack credibility on the grounds that the statements vacillate between the third and the first person and fail to describe specific psychiatric stressors or symptoms. Despite the foregoing, the October 2012 VA examiner ultimately found the Veteran’s symptoms to meet the criteria for a diagnosis of major depressive disorder (MDD), which the examiner subsequently dismissed as unrelated to his military service on the grounds that the Veteran’s depression symptoms manifested “much later” than his separation from service and therefore are “in no way” service-connected. In its June 2015 remand, the Board found the October 2012 VA examination to be inadequate due to its failure to acknowledge or discuss the multiple in-service stressors described at length by the Veteran and his mental health providers and repeatedly documented throughout his VA treatment records, and its failure to acknowledge or discuss evidence in the record indicating that the Veteran has been diagnosed with PTSD and MDD, including numerous VA treatment records, and in particular, a January 2006 VA treatment note reflecting a PTSD diagnosis and explaining in detail the ways in which the Veteran meets the criteria for a diagnosis of PTSD. Pursuant to the Board’s May 2019 remand directive, in August 2020 the AOJ provided a formal finding regarding the in-service stressors reported by the Veteran. In the resulting memorandum, the AOJ made a formal finding of a lack of information to corroborate the Veteran's claimed, personal stressors. The RO reviewed the Veteran’s Military personnel records, Service Treatment Records, VA Form 0781 Statement in Support of Claim for Service Connection for PTSD, buddy statements, and VA examinations. While the Veteran did serve in Germany as an armor intel specialist and the Veteran performed guard duty on December 4, 1970, the AOJ could not locate information that would support the veterans witnessing of a soldier self-inflicted gunshot wound, U.S. Army helicopter crash, or accidental discharge of a weapon. Furthermore, the evidence did not concede a confrontation with a German spy, participation in a mock prisoner of war training exercise, or a military sexual trauma/ personal assault. The AOJ concluded that the evidence of record is insufficient and therefore cannot be conceded nor sent to JSRRC. Also pursuant with the May 2019 Board remand, the Veteran was afforded a VA initial PTSD examination in October 2020. The VA examiner diagnosed the Veteran with PTSD based upon his claimed stressor of personal/ sexual assault. The October 2020 examiner noted that there are no service-related markers to substantiate the stressor and that statements by family members support the Veteran's claim. The examiner also noted symptoms of depressed mood, anxiety, suspiciousness and chronic sleep impairment actively apply to the Veteran’s PTSD. The examiner opined that it is at least as likely as not that the Veteran's PTSD is related to the reported in-service experiences. The examiner reasoned that based on direct evaluation, the Veteran meets DSM 5 criteria for PTSD due to an in-service personal assault. As rationale, the examiner asserted that the Veteran offers a credible report of exposure to MST. Additionally, the VA examiner noted that buddy lay statements from the Veteran's family members provided evidence of his mental illness symptoms resulting from military service. The Board finds the evidence to be in equipoise regarding whether the Veteran has PTSD. When this occurs, the reasonable doubt doctrine requires resolution of the matter in the claimant's favor. Therefore, it is determined that she has a current diagnosis of PTSD (which a preponderance of the medical evidence shows is related to the claimed stressor of a personal assault in service). Accordingly, the first two elements for establishing service connection are satisfied. 38 C.F.R. § 3.304(f). As for the third and final element needed to establish service connection for PTSD, the record contains conflicting evidence as to whether there is credible supporting evidence that the claimed in-service stressor occurred. As mentioned above, the Veteran's available service personnel records do not reflect any changes in assignment or unit. Moreover, his service treatment records are silent for complaints, findings, treatment, or diagnosis of any psychiatric disability. When, as here, a PTSD claim is based on an alleged personal or sexual assault in service, 38 C.F.R. § 3.304 allows for the corroboration of the MST allegations based on the Veteran's own reports when a medical professional renders a diagnosis of PTSD based on the Veteran's allegations of personal assault. In this case, a VA psychologist, have provided psychiatric diagnoses based on the Veteran's accounts of MST, and have accepted his reports as credible. Therefore, the Veteran's claimed stressors are corroborated. Additionally, the law provides that if a PTSD claim is based on an in-service personal assault, evidence from sources other than a veteran's service records may corroborate the veteran's account of the stressor incident. Gallegos v. Peake, 22 Vet. App. 329 (2008); 38 C.F.R. § 3.304(f)(5). 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; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these alternate sources. Examples of behavioral changes that may constitute credible evidence of a stressor include, but are not limited to: request for 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 behavioral changes. 38 C.F.R. § 3.304(f)(5). In support of his claim, the Veteran submitted lay statements from his brother and his wife, who each described the negative changes in the Veteran's personality during and after his military service. The Board acknowledges the 2012 VA examiner's negative opinion. However, the Board also takes note of the diagnosis of PTSD assigned by the October 2020 VA examiner, and the in-service stressor. The Board further finds, consistent with the examiner's own review of the claims file, that the Veteran's consistently reported stressor is sufficient to support a diagnosis of PTSD. There is no dispute that the Veteran is competent to report symptoms of anxiety, depression, nightmares, and re-experiencing traumatic events, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. The Board finds the Veteran's statements about his in-service trauma and current symptoms to be credible, as there is internal consistency, facial plausibility, and consistency with other evidence of record. The Veteran's assertions appear to be genuine, credible and consistent. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Furthermore, while there is a VA examination of record which offer negative etiological opinions, it does acknowledge the Veteran's military sexual trauma as a stressor. Additionally, the record shows a current diagnosis of PTSD based on the reported MST. Weighing the positive findings of the October 2020 provider against those of the 2012 VA examiner, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's PTSD is related to service. Accordingly, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for hypertension Secondary service connection may be established for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To substantiate a secondary service connection claim, the evidence must show: (1) a present disability (for which service connection is sought); (2) an already service-connected disability; and (3) competent evidence that the service connected disability caused or aggravated the disability for which service connection is sought. In this case, the Veteran contends his current hypertension is secondary to his service-connected PTSD. The Board granted service connection for PTSD in this decision and the Veteran has a current diagnosis of hypertension. In a December 2019 VA medical opinion, the VA examiner opined that it is at least as likely as not that the Veteran's hypertension is secondary to his PTSD as there is association of PTSD and hypertension according to medical literature. The VA examiner supported the opinion with a well-detailed rationale, to include medical treatise evidence from clinical and epidemiologic studies indicating that persons with post-traumatic stress disorder (PTSD) may have an increased risk of coronary heart disease and possibly thromboembolic stroke. “Persons with PTSD, a common anxiety disorder in both veteran and nonveteran populations, have been reported to have an increased risk of hypertension, hyperlipidemia, obesity, and cardiovascular disease”. The Board finds this opinion highly probative and persuasive. There is no conflicting medical evidence of record that the Board finds persuasive. Therefore, service connection is warranted for hypertension secondary to service-connected PTSD. 38 U.S.C. § 5107(b). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.