Citation Nr: A21019294 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 200506-82384 DATE: December 3, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) as due to military sexual trauma is granted. FINDING OF FACT The Veteran's posttraumatic stress disorder (PTSD) is related to in-service military sexual trauma. CONCLUSION OF LAW The criteria for service connection for posttraumatic stress disorder (PTSD) as due to military sexual trauma have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from January 1975 to January 1977. In November 2017 the RO denied the Veteran's claim of service connection for PTSD and the Veteran submitted a Legacy Notice of Disagreement. He subsequently opted into the modernized review system via Rapid Appeals Modernization Program (RAMP) and selected to have his claim adjudicated under the Higher-Level Review lane option. The RO confirmed and continued the denial of service connection for PTSD in an April 2019 RAMP rating decision. The Veteran filed a supplemental claim for this benefit in September 2019 and this matter is on appeal from a March 2020 rating decision. On May 6, 2020, VA received a VA Form 10182, Notice of Disagreement, in which the Veteran requested Direct Review by a Veterans Law Judge. In January 2021, the Veteran submitted a 10182 electing Evidence Submission. On July 12, 2021, the Board granted the Veteran's docket switch to the Evidence Submission docket, giving the Veteran 90 days from the date of the July 12, 2021 letter to submit additional evidence. The Board will consider evidence of record at the time of the March 2020 rating decision and evidence submitted within 90 days of the July 12, 2021 letter. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the above criteria, claims of service connection for PTSD require a medical diagnosis of PTSD, an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in service, and established medical evidence connecting the current disability to the stressor. 38 C.F.R. § 3.304(f). The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that 38 C.F.R. § 3.304 (f) (5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the Court erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor). Claimed stressors must generally be verified, but VA has acknowledged that stressors related to military sexual trauma (MST) may be more difficult to corroborate than other claimed stressors. Accordingly, in such cases, stressors may be verified via alternate means, including through behavior changes, records from law enforcement authorities, and statements from fellow soldiers, family members, or friends. 1. Service connection for posttraumatic stress disorder (PTSD) as due to military sexual trauma The Veteran argues that he suffers from PTSD as a result of in-service assault. The first element of service connection is met, in that the preponderance of the evidence supports a current diagnosis of PTSD under DSM-5. An October 2017 VA PTSD examination concludes that the Veteran does not have a current diagnosis of PTSD that conforms to DSM-5. A July 2018 DBQ submitted by a private physician indicates that the Veteran has a current diagnosis of PTSD that conforms to DSM-5. Medical opinions dated February 2019 and January 2020, to be discussed below, do not dispute that the Veteran has a current diagnosis of PTSD. In light of this evidence, the Veteran is entitled to a favorable finding with respect to the existence of a current diagnosis of PTSD. Regarding the second element, the Veteran states that on May 30 or 31, 1976, he was raped by a commanding officer and that during the altercation he injured his right hand. As to behavioral changes, the Veteran points to a military personnel record indicating a "[d]runk and disorderly" violation on May 30, 1976. This record also indicates that the Veteran was scheduled for a Captain's Mast on June 11, 1976. Additionally, the Veteran points to an October 1976 arrest for armed kidnapping and ransom. The Veteran states that this occurred when he went to the home of his assaulter, he forced the assaulter's father into the trunk of the family car and drove away. The Veteran was later stopped by police, arrested, and pled guilty. In light of this evidence and argument, the Board finds that the second element of service connection is met. As noted, stressors related to military sexual trauma can be difficult to corroborate. However, in this case there is contemporaneous evidence of drunkenness and disorderly conduct coincident with the date of the alleged assault. Further, there is evidence of difficulty with law enforcement shortly following the Veteran's discharge. Taken together, the Board finds that the in-service report is corroborated. Resolving reasonable doubt in the Veteran's favor, the Board finds that the second element of service connection has been met. The third element, nexus, is also met, in that the evidence is at least in equipoise. A February 2019 private medical opinion concludes that the Veteran's PTSD is at least as likely as not related to service. This conclusion is based primarily on the Veteran's changed behaviors following the alleged assault. Specifically, the examiner points to the Captain's mast for disorderly conduct, kidnapping charges, and increased drug use to self-medicate. The examiner also notes that the May 31, 1976 in-service report of a right-hand injury due to a falling hatch supports the Veteran's account, in that it is common for sexual assault victims to report real physical problems based but a false, non-assault-related cause. For these reasons, the February 2019 private medical examiner concludes that the Veteran's PTSD is at least as likely as not related to in-service military sexual trauma. A January 2020 VA medical opinion concludes that the Veteran's PTSD is less likely than not related to service. The examiner reviews the Veteran's allegations about in-service trauma. In reviewing the Veteran's medical treatment records she notes inconsistencies coincident with the filing of the Veteran's claim. Specifically, prior to February 2017, the Veteran ascribes his psychological symptoms to drug addiction, whereas after this time he ascribes everything to military sexual trauma. The private examiner also points to an inconsistency in the examiner's report of abducting the father of his assailant in October 1976, in that the charge of kidnapping for ransom is inconsistent with the Veteran's statement that he placed the assailant's father in the trunk of the family car but released him when confronted by police. For these reasons, the VA examiner concludes that the Veteran's PTSD is less likely than not related to in-service military sexual trauma. These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30102 (2008). After a careful review of the record, the Board finds that the evidence is at least in equipoise. As such, the Veteran is entitled to a favorable finding with respect to a favorable finding with respect to the existence of a nexus between PTSD and service. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5556 (1990). As the three elements are met, service connection for PTSD as due to military sexual trauma is warranted and the Veteran's claim is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.