Citation Nr: 21005855 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-41 943 DATE: February 2, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder and major depressive disorder, due to personal assault, is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, posttraumatic stress disorder and major depressive disorder are the result of personal assault during service. CONCLUSION OF LAW The criteria for service connection for posttraumatic stress disorder and major depressive disorder are met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.102, 3.159, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1958 to August 1962. In June 2018, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (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, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Establishing service connection for PTSD requires (1) a current diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). In claims for PTSD based on personal assault in service, evidence from sources other than the service records may corroborate the Veteran's account of the in-service stressor. 38 C.F.R. § 3.304(f)(5). Examples of that 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 those sources. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a psychiatric disability, to include as due to personal assault The Veteran asserts that a psychiatric disability is due to a personal assault during servcie. A December 2020 private psychologist diagnosed posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). The Veteran has asserted that he experienced a personal assault during service. The remaining inquiries are whether the evidence shows that it is at least as likely as not that the Veteran experienced a personal assault during service, and whether the Veteran has a psychiatric disability based on the claimed personal assault during service. The Veteran reported that he was sexually assaulted in 1959 during service. However, he indicated that he did not tell anyone or report the alleged sexual assault until many years later. There are no complaints of any personal assault in the service records. A February 2014 VA examiner stated that there was no marker evidence of sexual assault in the claim file. However, the Veteran's self-statement about the occurrence of MST was credible and the examiner believed that the account of being raped when he was in service was entirely truthful. The examiner did not note a diagnosis of any psychiatric disability. A June 2018 Board decision found the February 2014 VA psychiatric examination incomplete and remanded for additional examination. A December 2020 VA examiner stated that what happened to the Veteran in 1959 was an unfortunate event. Ego defenses were intact, which allowed him to cope well through the years. The examiner stated that the Veteran had no PTSD, or any other mental disorder at the time of the evaluation. A December 2020 private psychologist diagnosed PTSD and MDD, and opined that the psychiatric disabilities were more likely than not incurred in or caused by the traumatic personal assault experience the Veteran was exposed to during active duty. Throughout the course of this appeal, the Veteran has consistently reported being the subject of a sexual assault while in service. The Veteran is competent to report that he was assaulted while in service because the alleged incident is factual in nature and would be within his realm of personal experience. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran's statements competent, credible, and probative of the fact that a personal assault occurred in service. The Board also notes that the VA and private examiners suggested that they believed the Veteran's reports of an in-service sexual assault. Therefore, the Board finds that it is at least as likely as not that the Veteran experienced a personal assault during service. The Board finds that the evidence of record is at least in equipoise as to whether the currently diagnosed psychiatric disabilities are related to a personal assault during service. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that it is at least as likely as not that the Veteran experienced a personal assault during service that has resulted in current posttraumatic stress disorder and major depressive disorder. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for a posttraumatic stress disorder and major depressive disorder is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.O., 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.