Citation Nr: 21066426 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-17 483 DATE: November 1, 2021 ORDER Entitlement to service connection for a mental health disability, to include posttraumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. The evidence of record establishes the occurrence of the Veteran's claimed in-service stressor event. 2. The evidence is in equipoise as to whether the Veteran's diagnosed mental health disability, to include posttraumatic stress disorder (PTSD), is related to her military service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a diagnosed mental health disability, to include PTSD, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1988 to February 1991. Her appeal was previously remanded by the Board of Veterans' Appeals (Board) in August 2018. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's PTSD preexisted her military service. Specifically, there are frequent references to, and at least one medical opinion relating the Veteran's PTSD solely to, multiple types of childhood abuse. The Veteran underwent an enlistment examination prior to entrance into service. This enlistment examination noted, by the Veteran's own report, that her family was court-ordered to attend family counseling when she was 7 years of age. However, the medical provider completing the enlistment examination did not diagnose a mental health disability; he also determined that the Veteran was qualified to enlist in the military. Therefore, with respect to a mental health disability, the presumption of soundness attaches. See 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). While the Veteran's post-service VA treatment records extensively discuss her childhood abuse, there is no evidence that a mental health medical diagnosis was made prior to her entrance to military service. Again, the only evidence of mental health treatment that occurred prior to service is by the Veteran's own report of family counseling. No records suggest that the Veteran received individual treatment by a mental health provider or that she was diagnosed with PTSD prior to service entrance. Thus, it is debatable whether a mental health disability existed prior to service, and the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). The Veteran asserts that she has PTSD as a result of experiencing military sexual trauma in-service. The Veteran explained in a March 2014 statement that her supervisor at her then-unit removed her clothing and attempted to sexually assault her in his office. As a lay person, the Veteran is competent to provide evidence of observable events, including having been harassed and/or assaulted. Savage v. Gober, 10 Vet. App. 488, 496 (1997). While the Veteran's service personnel and treatment records do not specifically document sexual assault at any point during her service, such absence is common in personal assault cases. Patton v. West, 12 Vet. App. 272, 281 (1999) (it is not unusual for there to be an absence of service records documenting a sexual assault about which a veteran complains). The Board finds the Veteran's March 2014 statement that the event occurred and that she was traumatized by the in-service event to be credible. Moreover, if a PTSD claim is based on personal assault in service, as is the case here, evidence from sources other than a veteran's records may corroborate his or her account of the stressor incident. Examples of such evidence include but are not limited to 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). As noted above, the Veteran reported in her March 2014 statement that her sexual assault occurred in the summer of 1990. To that end, her service treatment records include laboratory test results from July 1990, August 1990, September 1990, and October 1990 show repeated testing for various sexually transmitted diseases, as well as pregnancy. No testing for sexually transmitted diseases or pregnancy are of record during the 18 months she was in service prior to this time. The Veteran's contention as to the trauma sustained by the in-service personal assault is also supported by the June 2014 statement by her spouse, who had known the Veteran since prior to her service separation, and is thus competent to speak to her mental state at the end of her military service. A multitude of VA treatment records dated beginning in 2000 document diagnoses of PTSD and later, bipolar disorder. Therefore, the criteria requiring evidence of a currently diagnosed disability are met. Further, the evidence of record is at least in equipoise as to whether the nexus requirement has been met. In December 2014, the Veteran underwent a VA examination where the examiner noted both the childhood abuse and the reported in-service personal trauma, but ultimately determined that the Veteran's PTSD was due to the childhood trauma and not her in-service personal trauma. Of note, this examiner indicated that "it is my opinion that there is no evidence to suggest that the markers referenced in potentially relevant evidence and elsewhere, can be associated with occurrence of a stressor. . . . Additionally, as the veteran describes the criterion A event, (i.e., attempted rape), there was no penetration, and she was able to fight off the perpetrator. As such, any gynecological or gynecological symptoms would not be relevant given the lack of penetration and the fact that the veteran was luckily able to fight off her perpetrator." The Board does not find this opinion probative. As discussed above, markers are an important type of secondary evidence in the absence of more formal documentation of an in-service personal assault. Further, the Veteran's repeated requests for sexually transmitted disease and pregnancy tests and the timing of those tests having occurred in the immediate period after her reported assault - potentially sheds light on her mental state at the time. Conversely, VA outpatient treatment records, to include an August 2018 treatment record, note a treating physician's opinion that the Veteran's PTSD was "partially military, but predominantly child abuse from mother." These nearly 20 years of VA treatment records reflect that both the pre-service and in-service events contributed to her mental health disability. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's in-service personal assault contributed to her current diagnosis of PTSD. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a mental health disability, to include PTSD, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. M. Kirby Veterans Law Judge Board of Veterans' Appeals 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.