Citation Nr: 21076208 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-28 916A DATE: December 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD), major depressive disorder, and adjustment disorder with anxious mood is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's acquired psychiatric disorder, diagnosed as PTSD per DMS-5 criteria, is related to a military sexual trauma (MST) stressor that occurred during the Veteran's service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, diagnosed as PTSD, major depressive disorder, and adjustment disorder with anxious mood are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2011 to July 2011 and September 2017 to October 2017. In April 2020, the Board of Veterans' Appeals (Board) denied, in pertinent part, entitlement to service connection for an acquired psychiatric disorder to include PTSD, major depressive disorder, adjustment disorder with anxious mood, and borderline personality disorder. The Veteran appealed the denial to the United States Court of Appeals for Veteran Claims (Court). By order dated in October 2020, the Court granted a Joint Motion for Partial Remand. The Board's decision denying entitlement to service connection for an acquired psychiatric disorder was vacated and remanded for consideration of the Veteran's in-service stressor to include MST. The Board then remanded the issue in April 2021 for additional development. 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends her acquired psychiatric disorder is directly caused by MST which occurred while she was in service. Service connection for PTSD requires medical evidence diagnosing the condition 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 in-service stressor occurred. 38 C.F.R. § 3.304(f). 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. 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 cases involving an allegation that PTSD is connected to MST, 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 Veteran was diagnosed with an affective disorder in August 2013. She was also diagnosed with adjustment disorder with mixed anxiety and impulse control disorder and depression in August 2013. In September 2015 she was diagnosed with major depressive disorder and unspecified anxiety disorder. In January 2016, the Veteran was again diagnosed with major depressive disorder and PTSD. The Veteran's January 2017 VA assessment shows a diagnosis of PTSD and anxiety. The Veteran's PTSD diagnosis was affirmed by her VA provider in January 2019, March 2019, and August 2021. Thus, the first element of service connection has been met. The Veteran was also diagnosed with borderline personality disorder in her June 2019 and March 2021 VA examinations. However, intellectual disabilities and personality disorders are not diseases or injuries for compensation purposes, and, except as provided in 38 C.F.R. § 3.310(a), disability resulting from them may not be service connected. Borderline personality disorder is considered a personality disorder for VA purposes, and personality disorders, which are characterized by developmental defects or pathological trends in the personality structure, manifested by a lifelong pattern of action of behavior, and shown to have existed prior to service, is a preexisting congenital disorder and is a not a "disease" for VA purposes. 38 C.F.R. § 3.303(c). As a result, the Veteran's borderline personality disorder diagnosis is not eligible for service connection. Next, the Board must determine if there is a link between the current disability and the in-service stressor. The Veteran's VA treatment records show she was diagnosed with PTSD in March 2019 by her VA mental health provider. The provider clearly states the psycho-social focus of the diagnosis was sexual trauma. The Board notes the Veteran reported an additional assault in 2014. However, as it is unclear to which instance the provider is referring, the Board will attribute this assertion to the Veteran's MST. Cf Mittleider v. West, 11 Vet. App. 181 (1998). As such, the second element has been established. Finally, the Board must address the final element of credible evidence that the in-service stressor occurred. Although the Veteran's service treatment records do not document any reported sexual assault allegation, the Board finds the Veteran's reported in-service stressor due to MST is credible. As noted above, the current PTSD regulation relating to personal assault reflects VA's judgment that unreported personal assaults occur and warrant a relaxed standard of corroboration. The record does not include any contemporaneous corroborating evidence, such as police reports or medical examinations; however, the Veteran explained she did not report the assault at the time as she was in fear of retaliation from the offending fellow service member. Furthermore, the Veteran stated she first reported the incident to her trusted VA mental health provider in 2014 which is confirmed by the record. This is consistent with the nature of unreported personal assaults as indicated in VA regulations. Additionally, the Veteran's military personnel records show that shortly after the reported MST in 2011, the Veteran was released from service due to academic and behavioral issues. In June 2011, her records show that Veteran had ignored orders to go to medical and then return to duty, and instead went back to her barracks to sleep. In July 2011, the Veteran was honorably discharged from service for "unsatisfactory performance." There are no behavioral issues documented prior to June 2011, indicating significant behavioral changes after the in-service MST. The Board notes that the Veteran underwent a VA examination in June 2019 in which the examiner diagnosed the Veteran with borderline personality disorder. The examiner stated that her personality disorder most likely preexisted service and was not aggravated by her service. However, the examiner concluded that there may be additional mental health diagnosis for the Veteran but that they could not ethically assert any additional diagnosis. As a result, the Board remanded for another examination in April 2021. The Veteran underwent a second VA examination in April 2021. Again, the examiner stated the Veteran's diagnosis was borderline personality disorder with no additional diagnosis. As a result, the examiner found that the Veteran's current personality disorder was not related to nor aggravated by her service. An addendum opinion was requested in September 2021, asking the VA examiner to consider the Veteran's PTSD diagnosis as documented by her VA provider. The VA examiner concluded that despite the recorded DSM-5 diagnosis of PTSD as provided by the Veteran's treating mental health provider, there were no additional diagnosis attributable to the Veteran's symptoms. As noted above, the Veteran has had a DSM-5 diagnosis of PTSD since January 2016 with a history of treatment through the VA noted in the record. This diagnosis and subsequent treatment were on record at the time of the June 2019 and April 2021 VA examinations as well as the September 2021 addendum opinion. As the June 2019, April 2021, and September 2021 examiners failed to consider the Veteran's recorded PTSD diagnosis and subsequent treatment in rendering their opinions, they are afforded little to no probative weight in this matter. In general, "after-the-fact medical nexus evidence," such as a VA examiner's finding that a claimant's PTSD was caused by the alleged in-service stressor, cannot by itself serve as credible supporting evidence of the claimed in-service stressor. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996); Cohen v. Brown, 10 Vet. App. 128, 146-47 (1997). However, there is an exception to this rule in service connection claims for PTSD based on an alleged personal assault. In such cases, the Court held that the "categorical statements" made in Moreau and Cohen that medical nexus evidence cannot by itself fulfill the requirement of "credible supporting evidence" do not apply. See Patton v. West, 12 Vet. App. 272, 279-280 (1999) (holding that in PTSD cases based on personal assault, a VA examiner's finding that the claimant's PTSD is etiologically linked to the alleged in-service stressor can serve as verification that the stressor occurred); see also 38 C.F.R. § 3.304 (f)(5) (providing that VA may submit any evidence it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred). Accordingly, for personal assault PTSD claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. Id.; see also Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011); Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006). The Board finds that the lay statements from the Veteran and the March 2019 opinion from the Veteran's VA mental health provider diagnosing PTSD in connection to sexual trauma credible. These statements relate the Veteran's PTSD symptoms to her in-service MST and as such are significant evidence in support of the Veteran's reported MST event. Furthermore, the Veteran reported she was more comfortable discussing her trauma to her March 2019 VA mental health provider than the VA examiners. As such, the Board finds there is sufficient evidence in the record to establish the Veteran experienced a personal assault stressor during service. The claim is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.