Citation Nr: 21073267 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-15 250 DATE: December 8, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT The Veteran's current PTSD is related to his military service. CONCLUSION OF LAW The Veteran's PTSD was incurred in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1977 to July 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a January 2020 decision, the Board denied entitlement to service connection for a right ankle disorder and remanded the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, for further development. That development was completed, and 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. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). A mental disorder diagnosis must conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), or, for claims received by or pending before the AOJ on or after August 4, 2014, the DSM-5 (Fifth Edition). See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). Because the Veteran's PTSD claim was certified to the Board after August 2014, the regulations pertaining to the DSM-5 are for application. If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of that veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See id. If a claimed stressor is not related to combat or fear of hostile or military activity, then a veteran's lay statements, alone, would not be sufficient to establish the occurrence of the alleged stressor; rather, corroborating evidence would be needed to support the claim for service connection. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). See also Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); Doran v. Brown, 6 Vet. App. 283, 289-290 (1994). 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 concludes that service connection for an acquired psychiatric disorder is warranted. The Veteran has claimed that he was assaulted during basic training, including during a "blanket party" after the platoon's privileges were taken away because of him. He testified that he began using drugs and alcohol to cope with the trauma from the incident. He denied drinking or using drugs prior to military service as well as any major disciplinary problems in high school. See September 2019 hearing transcript; February 2009 correspondence (describing the blanket party during which he believes he was sexually violated); April 2009 VA treatment record (describing being ambushed by a group of men who covered him in blankets and beat him in retaliation for the unit being punished due to Veteran's actions in getting a snack from a vending machine during basic training). VA treatment records document treatment and diagnoses of various psychiatric disorders, including PTSD and depression. See, e.g., June 2008 and August 2008 VA treatment records. A July 2012 VA examiner also diagnosed the Veteran with PTSD. However, the February 2017 VA examiner stated that there is no evidence that indicates the Veteran currently or historically has met the diagnostic criteria for PTSD. She stated that a review of his medical records indicates a lack of delineation of symptoms sufficient to support the diagnosis of PTSD made by other clinicians and evaluators, including the July 2012 VA examiner. She also observed that recent VA treatment records indicate an absence of a diagnosis of PTSD. Rather, they show diagnoses of an unspecified depressive disorder, unspecified anxiety disorder, and borderline personality disorder and noted that attention deficit disorder (ADD) had to be ruled out. See December 2016, February 2017, October 2017 VA treatment records. In addition, the February 2017 VA examiner stated that there is no evidence to suggest that any of the diagnoses are related to the Veteran's military service or an in-service personal assault. She noted that he had a documented history of behavioral problems and rebelliousness as a teenager, as well as discontinuation of high school in tenth grade. The examiner indicated that there is no evidence showing that the Veteran's disciplinary problems and substance use during service were suggestive of a change in behavior. Therefore, she found that there are no markers to substantiate the claimed stressor. Moreover, the examiner opined that it is less likely than not the identified marker evidence of behavioral changes demonstrated by the Veteran is consistent with the expected reaction or adjustment of a person who has been subjected to an assault and has resulted in current symptoms. In light of the conflicting evidence of record regarding the current diagnosis, the Board found that an additional VA examination was needed. Moreover, there was no medical opinion addressing whether the Veteran does have a personality disorder, and if so, whether there was a superimposed disease or injury that occurred during service. An additional VA telehealth examination was performed in June 2020. The examiner, a psychologist, found that the Veteran has a current diagnosis of chronic PTSD that conforms to the DSM-5 criteria. She also diagnosed him with major depressive disorder, recurrent, in partial remission; alcohol use disorder, in sustained remission; and cannabis use disorder, in sustained remission. The Veteran reported lingering symptoms of major depressive disorder; the "in partial remission" was utilized to note the past episode with ongoing mild symptoms. The examiner stated that the Veteran's symptoms are primarily attributable to PTSD and chronic mild depression and indicated that it is difficult to differentiate what symptoms are attributable to each diagnosis due to similarities and overlap. She noted that the alcohol use disorder and cannabis use disorder are in sustained full remission per the Veteran's report and the records. During the examination, the Veteran reported that they were on "furlough" during basic training and that he got candy from a vending machine, which caused his drill sergeant to cancel everyone's privileges. The drill sergeant informed the platoon that it was the Veteran's fault, and in the night, they gave him a "blanket party" and threw a blanket over his head and beat him. He also alluded to a sexual assault. The Veteran did not report the incident. He submitted a lay statement from B.A. (initials used to protect privacy), who served with the Veteran during basic training in 1977 and recalled the candy bar incident when the Veteran got the entire platoon in trouble. The June 2020 VA examiner noted the diagnosis of borderline personality disorder in 2016, but stated that the scope of the examination would not permit the diagnosis of a personality disorder, which should only be made after careful and detailed evaluation of the Veteran. She explained that a personality disorder diagnosis reflects pervasive patterns of thinking, instability in interpersonal relationships, self-image, and emotion, and marked impulsivity beginning by early adulthood and present across a variety of environments. The examiner acknowledged that the maladaptive tendencies of the personality disorder would become recognizable during adolescence or early adulthood, which would correspond with the Veteran's military service. However, she stated that the personality disorder would less likely than not be elicited by military service due to the nature of personality disorders. With regard to PTSD, the examiner opined that it is at least as likely as not due to the in-service stressor. She explained that, although the 2017 VA examiner noted difficulties in the Veteran's teenage years, this does not provide sufficient evidence to discount an in-service personal assault. The Veteran was hesitant to discuss the in-service assault and expressed extreme embarrassment due to the incident. She noted that such a response is not abnormal and that the benefit should be given to the Veteran's statement in support of claim and the buddy statement noting abusive type behaviors in boot camp. The two Article 15 proceedings during service also provide potential evidence to support the Veteran's allegations. Giving the benefit of the doubt to the Veteran and considering the evidence, the in-service personal assault at least as likely as not transpired and resulted in the Veteran's chronic PTSD. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's PTSD is related to an in-service personal assault. The Veteran is competent to provide lay evidence regarding the in-service incident, and the Board finds that his lay statements are credible, as they are consistent and corroborated by other evidence, including the lay statement from a fellow servicemember and the service records documenting behavior changes and substance abuse. Accordingly, the Board finds that service connection is warranted for PTSD. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.