Citation Nr: 21061326 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 10-48 797 DATE: October 1, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT The Veteran has been diagnosed with PTSD during the claim period that is related to a verified in-service stressor. CONCLUSION OF LAW An acquired psychiatric disorder, diagnosed as PTSD, was incurred in active service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from June 1996 to May 1997. He also served in the United States Army Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2018. A transcript is of record. The Board remanded the case for further development in July 2018. The case has since been returned to the Board for appellate review. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 evidence that the claimed in-service stressor occurred. 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 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. 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. VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 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. 38 C.F.R. § 3.304(f)(5). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to service connection for an acquired psychiatric disorder, diagnosed as PTSD. The evidence supports a finding that the Veteran has PTSD that is related to a verified in-service stressor. The medical evidence of record documents diagnoses and treatment of PTSD for at least over a decade. The Veteran was diagnosed with attention-deficient/hyperactivity disorder (ADHD), dyslexia, PTSD, and major depressive disorder (MDD) with psychotic features in a December 2009 private treatment record. In a February 2012 VA treatment record, it was also noted that he was diagnosed with chronic PTSD, bipolar disorder, and ADHD. During VA treatment in May 2013, the Veteran disclosed that he was angry and shaming himself, saying that he would not have been raped in the military if he were not gay. He also stated those individuals who sexually harassed and assaulted him in the Navy told him he would be dead. PTSD has remained an active medical problem through the years, and in August 2019, a VA medical professional provided diagnoses of PTSD, borderline personality disorder, psychosis, ADHD, bipolar II disorder, and narcolepsy. He was further treated for diagnoses of MDD, PTSD, and personality disorder through VA in May 2015. Multiple other VA and non-government psychiatric treatment records show treatment for PTSD and a past medical history of PTSD. The Board notes that mental health professionals are presumed to know the requirements applicable to their practice and to have taken them into account when diagnosing PTSD. Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997). Regarding his claimed stressors, in a March 2009 handwritten statement, the Veteran provided accounts of several personal assaults that occurred during service. In support of his claim, the Veteran wrote in February 2011 correspondence that he was given a type of hazing treatment in boot camp, including being assaulted and kicked in the shower. He wrote that he spoke with the chaplain who recommended that he take a spiritual retreat. He believed that he was subjected to harassment and assaults in service when his sexual preference was assumed based on mannerisms. When his reported assaults were not properly addressed, the Veteran said he considered suicide and took active steps. At a February 2018 hearing, the Veteran testified that he was perceived as being gay, which led to intense harassment and a suicide attempt. He stated that, after reporting verbal harassment and markings on a bathroom wall, incidents escalated to physical altercations. He overdosed on pills and was taken to an emergency room. The Veteran testified that the military base sent him to a civilian hospital and that he returned under the care of a psychiatrist and was put on restrictions. He indicated that it was highly recommended that he be removed from his squadron. In addition, the Veteran testified that he was initially diagnosed with "possible PTSD" after service, but that a university psychologist then diagnosed him PTSD with possible bipolar conditions and every psychiatric medical professional indicates a mood condition along with PTSD since that time. The Veteran's service treatment records do show that he was treated in the mental health department of a naval hospital throughout his active duty service in 1996 and 1997. An undated medical record indicates that he was having problems with sleep and experienced anxiety and shakes. He reported in January 1996 that he was robbed by one of his roommates, openly questioned about his sexual preferences in the workplace, felt singled out, was not able to find support on base, and had no car to find support elsewhere. The examiner recommended limited duty and a reassigned squadron if possible. It was further noted in December 1996 that the Veteran was hospitalized for depression. In January 1997, the Veteran was documented as having symptoms consistent with depression, and in February 1997, he was assessed as having an adjustment disorder with depressed mood secondary to a struggle with intimacy and isolation. He later had symptoms of rectal bleeding in March 1997. In April 1997, the mental health department documented that the Veteran had reported that he disclosed that he was gay to other servicemembers and showed a picture of his fiancé to them. It was noted that he became the object of many derisive remarks and was showing signs of stress. The service treatment records show also that the Veteran experienced sexual assault in April 1997. The Veteran indicated that he had filed reports on several men who had been throwing him around and were inappropriately rough with him. During that same month, a military mental health professional advised the Veteran to consider opting for an administrative separation for homosexuality at which point the Veteran denied being gay, saying he would lose a scholarship. The professional told him that separation would be recommended based on a "personality disorder." The Veteran stated that he had nothing to live for and felt like a failure. His service treatment records show that, on the following day, the mental health professional again discussed making a diagnosis of personality disorder with the Veteran. In February 2011 correspondence, the Veteran wrote that it was his understanding that the personality disorder diagnosis was made to prevent him from having disciplinary action taken against him. In a June 1996 report of medical history, the Veteran had responded that he never experienced any frequent trouble sleeping, depression, excessive worry, or nervous trouble of any sort. The examiner noted that there was no significant medical history. A June 1996 questionnaire for national security positions also shows the Veteran indicated that he had not had mental health treatment for the previous seven years. However, at the time of his separation, in a May 1997 report of medical history, the Veteran indicated that he experienced nervous trouble and frequent trouble sleeping. It was also noted that he was treated at Cedar Vista Hospital for his mental condition and experienced mental health stress. The Veteran's service personnel records show that he only has one evaluation in May 1997 available for review in which he was marked as "meets standards." However, in May 1997, it was also recommended that he be discharged by reason of a personality disorder. His DD-214 also shows an honorable discharge due to a "personality disorder." Based on the foregoing, the Board finds that the Veteran's reports regarding the events in service are competent and credible. Indeed, they are corroborated by contemporaneous service records. The Board notes that the Veteran was provided a VA examination in November 2009 during which the examiner diagnosed him with a borderline personality disorder. He was also afforded a VA examination in October 2017 during which the diagnoses were borderline personality disorder and alcohol use disorder. Personality disorders are not diseases or injuries within the meaning of applicable statutes and regulations. 38 C.F.R. §§ 3.303(c), 4.9. The October 2017 VA examiner did indicate that the Veteran's personality disorder may have been aggravated by service, but he did not explain why there was no previous history of psychiatric symptoms prior to the events in service and did not provide an opinion addressing whether there was a superimposed disease or injury that occurred during service. Moreover, despite the December 2009 VA examiner noting prior psychiatric diagnoses, neither VA examiner addressed the other mental health diagnoses documented in the post-service treatment records, such as depression, an adjustment disorder, and PTSD. In addition, the Veteran challenged the adequacy of the October 2017 VA examination during the February 2018 hearing As previously discussed in the July 2018 remand, the December 2009 and October 2017 VA examination reports are inadequate. Therefore, the Board remanded the case. Thereafter, the agency of original jurisdiction(AOJ) denied the Veteran's request to obtain and submit an examination and opinion from his own physician. However, following an October 2019 supplemental statement of the case (SSOC), the Veteran agreed to report for a VA examination, which was provided in January 2020. The January 2020 VA examiner noted the prior diagnoses of PTSD, as well as the evidence documenting the Veteran's stressors and markers for personal assault. However, she stated that she would not provide a diagnosis of PTSD because the Veteran was currently employed. Nevertheless, the Board notes that the examiner used the DSM-5 criteria instead of DSM-IV, which should have been used in this case, as the appeal was certified to the Board prior to August 2014. DSM-IV will apply to claims that were initially certified for appeal to the Board, CAVC, or the Federal Circuit prior to August 4, 2014. See 79 Fed. Reg. 45,093, 45,094-,096 (Aug. 4, 2014); 80 Fed. Reg. 14,308 (Mar. 19, 2015) (final). Moreover, both versions of the diagnostic criteria do not require that an individual with PTSD be unable to hold a job. Rather, the criteria requires that the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. Thus, the examiner's rationale is inadequate regarding the diagnosis. The January 2020 VA examiner also wrote that personnel records were not included for review and that there are no records to support treatment for rectal bleeding. However, the Board notes that there are in-service records pertaining to rectal bleeding and other related symptoms. Thus, in reviewing the VA examiner's reasoning for lack of diagnosis of PTSD, including in the context of the other evidence of record, the Board finds that her determination was not based on consideration of the Veteran's mental health history and is not entitled to probative weight. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole and in context of evidence of record). For these reasons, the Board finds that the numerous other healthcare providers' diagnoses of PTSD are at a minimum at least as equally probative as the non-diagnosis provided by the VA examiner. Any reasonable doubt created by a relative equipoise in the evidence is resolved in favor of the Veteran to find he meets the "medical evidence diagnosing the condition in accordance with § 4.125(a)" criterion of 38 C.F.R. § 3.304(f). See 38 C.F.R. § 3.102 (the benefit of the doubt doctrine applies to any point within a claim as well as its ultimate disposition). As noted above, mental health professionals "are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis." Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997). Based on the foregoing, the evidence shows that the Veteran has a current diagnosis of PTSD and a verified stressor. Moreover, the January 2020 VA examiner attributed the Veteran's current psychiatric symptoms to the traumatic events he experienced in service. The remainder of the VA mental health treatment records also support such a determination. Accordingly, the Board finds that service connection is warranted for an acquired psychiatric disorder, diagnosed as PTSD. In reaching this decision, the Board notes that the benefit sought on appeal is granted in a manner consistent with the fact that the most probative evidence shows a current diagnosis of PTSD related to an in-service stressor. Moreover, the single evaluation assigned for the psychiatric disability contemplating his symptomatology would be assigned under the same rating criteria regardless of the diagnosis. Indeed, the Veteran's claim has been based on a relationship between his stressors in service and his mental health symptoms for which he will now be service-connected based on this diagnosis. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Kuczynski, 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.