Citation Nr: 21063749 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 19-18 855A DATE: October 15, 2021 ORDER Service connection for other specified trauma- and stressor-related disorder is granted. FINDING OF FACT The evidence of record is at least in equipoise as to whether a military sexual assault occurred during active duty service in 1996 and whether the current diagnosis of other specified trauma- and stressor-related disorder is related, in part, to that event. CONCLUSION OF LAW Resolving any reasonable doubt in the Veteran's favor, the criteria for service connection for other specified trauma- and stressor-related disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1995 to August 1996, having been ordered to active duty while a member of the Army Reserve. She also had a period of active duty for training (ADT) from July 1982 to February 1982. This matter comes before the Board of Veterans' Appeals (Board) from a March 2017 rating decision. In May 2021, the Veteran testified at a Board telehearing; a transcript of the hearing is associated with the claims file. Service connection for other specified trauma- and stressor-related disorder The Veteran contends that she has a current psychiatric disability, initially claimed as posttraumatic stress disorder (PTSD) and later claimed as anxiety and depression, due to two events during military service. First, she asserts she was sexually assaulted by another soldier in March and April 1996 during her active duty deployment to Germany. She testified that she did not report the assaults to her superior until she returned to her station in the United States because believed she could not "cause any trouble in Germany on a deployment" and at the time she believed she was responsible for the assaults because she had been drinking alcohol on both occasions. She testified that her Sergeant Major screamed at her when she did report the assaults and then she "went numb for about two years" after that, not caring about anything. Second, she asserts that from 1999 to 2000 another woman in her unit spread lies about her, involving 200 to 300 people in her unit. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In addition, 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). To establish direct service connection, there must be the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and 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). Establishing service connection for PTSD requires medical evidence diagnosing the condition in accordance with §4.125(a) of this chapter; 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 diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) published in 2013 by the American Psychiatric Association. 38 C.F.R. § 4.125(a). When a PTSD claim is based on in-service personal assault, such as the reported sexual assaults in 1996 during the Veteran's active duty in Germany, evidence from sources other than a veteran's service records may corroborate the 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). The Veteran's available service treatment records are limited to her April 1982 Army Reserve enlistment examination, a January 2006 Army Reserve retention examination, and some dental records from May 1996. In October 2016, the agency of original jurisdiction (AOJ) notified the Veteran of the actions taken to obtain service treatment records, asked her to submit any records she may have in her possession, and identified alternative relevant documents she may submit in support of her claim. No additional records or evidence was received from the Veteran. In an April 1982 Army Reserve enlistment report of medical history, the Veteran denied currently or ever having frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. On examination the same day, her psychiatric function was reported as normal and her weight was recorded as 149 pounds. In a January 2006 retention report of medical history, she endorsed having frequent trouble sleeping but denied having other psychiatric symptoms, having been evaluated or treated for a mental condition, or having received counseling of any type. A physician's summary elaborated that the Veteran had been having trouble sleeping for about six weeks and believed it was related to job stress. She described trouble with sleep initiation. The examiner believed the sleep trouble seemed situational. On examination the same day, her psychiatric function was reported as normal. The examiner again noted the Veteran's sleep initiation difficulty was not chronic, but situational. The Veteran's service personnel records confirm she was stationed in Germany from late-December 1995 to August 1996. In December 1996, she was promoted from Specialist to Sergeant. The records include numerous NCO Evaluation Reports. Since December 1997, her overall performance was generally rated as successful and fully capable with the exception of needing some improvement in the area of physical fitness and military bearing. Her weight was recorded as being between 142 and 154 pounds. Since September 2004, however, her performance rating had decreased to needing some improvement in most areas and her weight was recorded as being between 193 and 199 pounds. In 2007, she retired from the Army Reserve. In December 2008, the Veteran presented to a VA Medical Center to establish primary care. She endorsed symptoms of PTSD, sleep disturbance, and sleep loss. Screening for PTSD and depression was positive. Her weight was recorded as 196 pounds. The examiner referred her to the PTSD clinic for evaluation. During an April 2009 mental health consultation with a VA psychiatrist, the Veteran described a history of childhood sexual and physical abuse by her father and emotional abuse by her mother. She indicated she began running away from home at age seven and being placed in foster care in early adolescence for being "incorrigible." She described being raped during military service and reporting the incident to her sergeant, who then yelled at her. She also reported that a female supervisor spread vicious rumors that were terrorizing and affected her work environment. The assessment included major depression, severe, recurrent; PTSD due to childhood trauma, mild; and history of sexual assault in military. Subsequent records reflect ongoing evaluation and treatment for unspecified anxiety disorder, "history of PTSD (per record)," and recurrent major depressive disorder. In December 2016, the Veteran was afforded a VA examination to evaluate her claimed PTSD disability. She described her history of childhood abuse within her family of origin and being raped by another service member in 1996 in Germany and having difficulty dating or establishing relationships since that time. Following a review of the claims file and examination, the examining psychologist detailed that the Veteran's symptoms did not satisfy the criteria for a diagnosis of PTSD. Instead, the diagnosis was other specified trauma- and stressor-related disorder, which included subclinical PTSD symptoms. The examiner indicated that both the childhood abuse and the reported sexual assault in 1996 in Germany contributed to the current diagnosis. The examiner opined that the current psychiatric disorder was at least as likely as not incurred in or caused by the rape incident in 1996. In support of the conclusion, the examiner observed that markers that tended to support the reported in-service stressor included the Veteran's documented report of disturbed sleep among available service treatment records; a lack of success in her career; and a valid profile on psychological testing, which was positive for symptoms of anxiety, depression, somatic complaints, traumatic stress, hypervigilance, persecution, social detachment, and negative relationships. Having considered the medical and lay evidence of record, the Board finds the evidence is at least in equipoise as to whether an acquired psychiatric disorder, diagnosed as other specified trauma- and stressor-related disorder, had its onset during the Veteran's active duty service or is otherwise related to the reported military sexual trauma during that period of service. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and finds that service connection is warranted for other specified trauma- and stressor-related disorder. Considering the lay evidence of record, the Board emphasizes that lay persons are not competent to diagnose psychiatric disorders. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that PTSD is not the type of medical condition that lay evidence, standing alone, is competent and sufficient to identify); Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant."). However, the Veteran is competent to describe or identify many symptoms associated with psychiatric impairment and to report the onset and continuity of many symptoms associated with psychiatric impairment. In addition, lay evidence may be competent and sufficient to establish a diagnosis when "lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In this case, although the medical evidence of record documents the Veteran's reports to numerous medical personnel describing her history of childhood abuse and treatment providers have attributed her current psychiatric impairment, in part, to that abuse, her statements describing military sexual assault during her active duty service in 1996 are credible because they are generally consistent with and supported by other medical and lay evidence of record. In addition to the markers noted by the December 2016 VA examiner, the Veteran's service personnel records reflect a decline in her occupational performance with a contemporaneous weight-gain of approximately 50 pounds within a few years of the reported assault. In addition, her reports describing an in-service sexual assault to VA treatment providers for approximately six years prior to filing her claim for VA compensation benefits are internally consistent and do not reflect a pecuniary motive. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care). Finally, the opinion of the December 2016 VA examiner is probative and persuasive because it was based on a review of the claims file and supported by an articulated medical explanation that is consistent with the remaining records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). In summary, the lay evidence suggesting the Veteran's psychiatric impairment currently diagnosed as other specified trauma- and stressor-related disorder is related to her active duty service is evenly balanced with other evidence suggesting her psychiatric symptoms are attributable to pre-service childhood abuse. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for other specified trauma- and stressor-related disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.