Citation Nr: 21073094 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-17 536 DATE: December 7, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), bipolar disorder, and panic disorder, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's diagnosed PTSD, bipolar disorder, and panic disorder is related to a military sexual trauma (MST) stressor. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for PTSD, bipolar disorder, and panic disorder due to an MST stressor are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f)(5). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1982 to December 1989. This case initially came before the Board of Veterans' Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for PTSD. In March 2015 the Veteran filed a notice of disagreement (NOD) and in February 2017 the RO issued a statement of the case (SOC). In March 2019 the Veteran filed a substantive appeal (via VA Form 9). In February 2019, the Board remanded the claim for additional development. As the benefit sought is being granted in full, consideration of whether the agency of original jurisdiction complied with the Board's remand instructions is unnecessary. As a final preliminary matter, in Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), the Court held that a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Although the Veteran originally filed a claim for PTSD, the Board will broaden the Veteran's claim and consider all psychiatric diagnoses raised by the record. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military 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 incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). PTSD There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A February 2015 VA psychiatrist diagnosed the Veteran with PTSD, bipolar disorder, and panic disorder. Thus, a current disability has been demonstrated. In a May 2014 Statement in Support of Claim for PTSD (VA Form 21-0781) the Veteran stated he witnessed a man being shot in the head on liberty in the Philippines while stationed aboard the USS Constellation. In a January 2015 letter, the Veteran stated that he experiences flashbacks and panic attacks because of his experience in the Philippines. In a July 2015 letter, the Veteran stated that while in the Philippines after he witnessed a man being shot the same assailants raped him. The Veteran stated that this event has negatively impacted his life and the ability to sustain healthy relationships. In the March 2017 VA Form 9 the Veteran stated that he did not report being sexually assaulted for fear of being dishonorably discharged. Although there is nothing in the Veteran's military personnel records or STRs that specifically documents a sexual assault at any point during his active service, in cases involving an allegation that PTSD is connected to military sexual assault, the Federal Circuit has held that "the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur." AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). The Board is mindful that veterans claiming service connection for PTSD due to personal assault face unique problems documenting their claims. Since assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. See Proposed Rule, PTSD Based on Personal Assault, 65 Fed. Reg. 61132 (Oct. 16, 2000) ("Many incidents of in-service personal assault are not officially reported, and veterans may find it difficult to produce evidence to prove the occurrence of this type of stressor"). Accordingly, the regulations governing PTSD provide that where a claim is based on an in-service personal assault, evidence from sources other than the 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. 38 C.F.R. § 3.304(f)(5). In February 2019 the Board remanded the Veteran's claim to determine if the Veteran was stationed aboard the USS Constellation and if it stopped in the Philippines in 1998. The Veteran's military personnel records reflect that the Veteran completed a 2-day petty officer indoctrination class on December 28, 1988, while stationed aboard the USS Constellation. Also, the Veteran's service treatment records (STRs) indicate that the Veteran was aboard the USS Constellation in February, April, and May 1989. The USS Constellation Command History for Calendar Year 1988, which was received by the VA in April 2020, reveals that the USS Constellation docked at Subic Bay in the Philippines from December 30, 1988 through December 31, 1988. Therefore, it is established that the Veteran would have been aboard the USS Constellation when it was docked in Subic Bay and he likely would have been given time to visit the Philippines during this time. A May 1989 STR indicates that the Veteran was seen at the sexually transmitted disease clinic aboard the USS Constellation which corroborates the Veteran's August 2015 letter in which he stated he has had numerous sexually transmitted disease examinations over the last 30 years. Also, in a June 2015 letter, the Veteran's sister stated that she visited the Veteran sometime in the 1980s and it was clear something happened to him overseas that negatively affected him. Taken together, the Veteran's in-service treatment for an STD along with his lay statements and the corroborating statement from his sister indicates that there is credible supporting evidence that the claimed in-service stressor occurred. Given the circumstantial evidence of record that tends to corroborate the reported assault, the Board finds that the in-service stressor identified by the Veteran has been verified. See 38 C.F.R. § 3.304(f)(5). The remaining question concerns whether there is a link, established by medical evidence, between current symptoms and an in-service MST stressor. In an August 2015 disability benefits questionnaire (DBQ), a private physician diagnosed the Veteran with PTSD, bipolar disorder, and panic disorder due to his MST. The VA psychiatrist noted that the Veteran has had severe flashbacks of MST which incapacitates him. The physician noted that there was "significant symptom overlap," and that it is not possible to differentiate what symptoms is/are attributable to each psychiatric diagnosis. The physician specifically diagnosed the Veteran with PTSD, bipolar disorder, and panic disorder based on his treatment in the military. The Board considers the August 2015 DBQ as an implicit nexus opinion given the context in which the diagnoses were made. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Thus, the August 2015 DBQ is entitled to substantial probative weight. A July 2021 VA psychologist opined that the Veteran did not meet the DSM-V criteria for a diagnosis of PTSD and did not diagnose him with any other mental health disorder. The Veteran is competent to report about the circumstances of his military service, his current symptoms, and history of symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Taken together, the Board finds the implicit nexus opinion provided by the August 2015 VA psychiatrist and the Veteran's lay statements are sufficient to establish a nexus between his MST and his current PTSD, bipolar disorder, and panic disorder and are of at least as much probative weight as the negative opinion.. The evidence is thus at least evenly balanced as to whether the Veteran's PTSD, bipolar disorder, and panic disorder are related to his MST stressor. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for PTSD, bipolar disorder, and panic disorder is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes that the benefit granted herein is service connection for PTSD, bipolar disorder, and panic disorder. Although the Veteran has also been diagnosed multiple psychiatric disabilities during the claim period there is no evidence to distinguish between all of the symptoms of the Veteran's psychiatric disabilities. Therefore, a separate decision as to entitlement to service connection for each psychiatric disability is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.