Citation Nr: 21063110 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-07 412 DATE: October 13, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, characterized as posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), due to sexual trauma, is granted. FINDING OF FACT The Veteran's current acquired psychiatric disorder, characterized as PTSD and MDD, is etiologically related to military sexual trauma that occurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, characterized as PTSD and MDD, due to sexual trauma have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1963 to December 1967. This matter returns to the Board of Veterans' Appeals (Board) following the issuance of an April 2020 Board decision and a March 2021 Court of Appeals for Veterans Claims (CAVC) Joint-Motion for Remand. The undersigned Veterans Law Judge presided over a Board hearing in February 2020. A transcript of this hearing is of record. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD requires: medical evidence diagnosing the condition; 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). The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror. Additionally, in order to establish service connection for PTSD due to military sexual trauma (MST), the evidence of record must include a medical diagnosis of PTSD 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. If 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. 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. 38 C.F.R. § 3.304 (f)(5). 1. Entitlement to service connection for an acquired psychiatric disorder, characterized as posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) The Veteran asserts that he has an acquired psychiatric disorder, specifically, PTSD, and MDD that is related to service. He asserts that his acquired psychiatric disorder is due to military sexual trauma (MST). As an initial matter, the Board notes that the Veteran is currently diagnosed with PTSD due to MST, and MDD. 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 etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.304, 3.307, 3.309. After a review of the record, the Board determines that service connection is warranted. The Veteran, in this case, asserts that he experienced MST on two occasions. Once, while on liberty on treasure island, and the second instance and over a period of 8 months, by another sailor while he was assigned to the USS Enterprise. The Board has reviewed his available service treatment records and notes that there is no evidence of any such assault documented, as would be expected, per the Veteran's own admission. However, there is additional evidence which the Board finds sufficient to support a finding that the assaults occurred. First, the Board observes that the Veteran has submitted multiple stressor statements since he began mental health treatment in 2015 regarding these incidents, which have been generally consistent throughout, and are also consistent with statements made during medical treatment (he has provided reports of the same incident to multiple treatment providers, as documented by his available medical records). Additionally, the Veteran's service records indicate that he sought treatment in August 1964 for possible STIs; and his personnel records indicate that he sought a reduction in his rank in July 1965 to facilitate a transfer from the USS Enterprise to another assignment. There are no noted behavioral changes documented in the Veteran's personnel records, and his December 1967 separation examination is silent for any indication of a mental health disorder or for any indication of an STI. Ultimately, the Board must consider the whole picture in determining whether the Veteran's reported assault occurred. A lay person is competent to report evidence of which they have firsthand knowledge. 38 C.F.R. § 3.159 (a)(2). Therefore, to the extent that the Veteran was present during the instances of MST, he is competent to provide this testimony. Further, when assessing the credibility of such testimony, the factors which must be considered include facial plausibility; internal consistency; consistency with other evidence; self-interest or bias; lay statements made during treatment; and personal knowledge or experience. See Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the evidence as reported by the Veteran to VA, as well as to his medical treatment providers, and psychiatric treatment, diagnoses, and symptoms weighs in favor of a finding that the assaults occurred. The only evidence which contradicts this finding is the lack of such a stressor documented in the service treatment records, which is the exact purpose of the additional considerations as established in 38 C.F.R. § 3.304 (f)(5). The Board also notes the September 2015 examiner's opinion that there was no evidence on which to establish a link between his active-duty service and present psychiatric disorders. At this time, the examiner only noted a diagnosis for MDD, and the examiner thus did not speak to any PTSD or MST. Given the degree to which the Veteran's claim has evolved since this examination, concurrent with his increased psychiatric treatment, the Board finds that the opinion provided within carries little probative weight. The question which the Board must then address, after determining that a sexual trauma occurred during service, is whether the present disability is linked to that trauma. The Board finds that this is the case. The Veteran was diagnosed with PTSD (MST) in January 2020, and his medical records indicate that he has attended regular psychiatric treatment, including support groups for MST victims, since 2017. The Board finds that the designation of the Veteran's psychiatric disorder as stemming from MST, along with documented consistent statements from the Veteran regarding his in-service assaults, supports his claim. There is clear and consistent medical evidence to suggest that the Veteran has been experiencing psychiatric symptoms that are more likely than not, the result of his military sexual trauma. Further, the Veteran's psychologist stated that the Veteran's psychiatric symptoms impact his quality of life. Prior to his enlistment into the armed services the Veteran had never seen a mental health counselor and all of his symptoms began after he enlisted in the military. Therefore, the Board also finds that the medical evidence supports a medical nexus between the Veteran's military sexual trauma and the presently diagnosed acquired psychiatric disorder. The Board has reviewed the evidence of record and found no real evidence to contradict that which links his present acquired psychiatric disorder to his in-service trauma. Rather, the only negative opinions are based on outdated medical information. However, as the Board has conceded that the trauma likely did occur, any such opinion is of limited value in assessing this case. In light of this, the Board will afford the Veteran the Benefit of the doubt and grant service connection for an acquired psychiatric disorder, characterized as PTSD and MDD, secondary to military sexual trauma. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor