Citation Nr: 21007209 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-12 043 DATE: February 9, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving all reasonable doubt in her favor, the Veteran’s PTSD is causally or etiologically due to service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1973 to December 1973. The matter on appeal before the Board of Veterans’ Appeals (Board) is from a September 2011 rating decision of a regional office of the Department of Veterans Affairs (VA). The issue was previously before the Board in November 2018 where it was remanded for additional development and has since been returned for further appellate review. As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed inservice 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). Lay testimony alone can establish the occurrence of the claimed in-service stressor in certain circumstances, which include: when PTSD is diagnosed during service and the claimed stressor is related to that service, when the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, when the stressor claimed by a Veteran is related to the Veteran’s fear of hostile military or terrorist activity and certain other conditions are met, and when the Veteran was a prisoner-of-war and the claimed stressor is related to that prisoner-of-war experience. Id. In other cases, the claimed stressor must be corroborated by credible supporting evidence. Generally, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of a claimed in-service stressor. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 142 (1997). However, in the context of a PTSD claim based on personal assault, the United States Court of Appeals for the Federal Circuit distinguished the holding in Moreau and held "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011); see also Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006); Patton v. West, 12 Vet. App. 272, 280 (1999). Thus, courts have made clear that in a claim for service connection for PTSD based on in-service personal assault, favorable medical evidence diagnosing PTSD based on the Veteran's account of in-service assault must be weighed against all other evidence of record when determining whether the claimed in-service personal assault has been corroborated. See Menegassi, 638 F.3d at 1382 n.1. The Veteran has a current diagnosis of PTSD. See October 2019 VA examination. The Board therefore finds that the evidence demonstrates the Veteran has a current diagnosis, meeting the first requirement for the establishment of service connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As for the second requirement, the Veteran asserts she was sexually assaulted during service. 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. With respect to the Veteran's claimed in-service stressor, in an unrelated March 2012 Board hearing, the Veteran asserted that during basic training she was coerced by an officer to engage in sexual relationship with him, and that this resulted in her contracting a sexually transmitted disease. However, during a July 2010 VA examination for gynecological conditions and disorders of the breast, the examiner reported that the Veteran had consensual sexual relations with an officer resulting in contraction of sexually transmitted disease. The Board notes the Veteran’s representative argued in December 2020 that the Veteran felt intimated by the officer because she was his trainee and felt coerced to engage in sexual relations. The Veteran’s representative also points to the fact that service records confirm the Veteran was transferred to a different company after informing the medical clinic that she contracted gonorrhea from her Captain and also experienced a change in behavior subsequent to the MST, as evidenced by her discharge summary noting an inability to relate to peers and refusal to put forth any constructive effort. Service treatment records also show that the Veteran complained of and was treated multiple times for pelvic conditions, and that the treatment provider recorded that the Veteran’s boyfriend had gonorrhea. There is no separation examination, or report of history included in the claims file. Post-service records contain multiple reports of the in-service MST, over the course of several years. See e.g. September 2010, November 2011 VA treatment notes. The Board finds the Veteran’s descriptions of her MST, including her discussion of these events for purposes of seeking mental health treatment, are both competent and credible. Accordingly, the Board finds that the totality of the evidence sufficiently corroborates the Veteran’s contentions of MST. As such, element (2) is met. The Veteran presented for a VA examination in October 2019, at which time she was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner checked the opinion that it was at least as likely as not (50 percent or greater probability) that the Veteran’s PTSD was incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran’s self-report of symptoms is consistent with the diagnosis of PTSD, but based on the totality of the record, there is no objective evidence supporting her contention that she was coerced into having sexual relations with her Captain. The examiner stated that there are no contemporaneous reports to substantiate her contention; the diagnosis of gonorrhea is not sufficient to establish coercion. The Board notes, however, that after evaluation of the Veteran, the examiner indicated that the Veteran does have a current diagnosis of PTSD, and that the Veteran’s reported stressor meets criterion A to support the diagnosis of PTSD. Under the benefit of the doubt rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Given the evidence of record, the Board resolves doubt in the Veteran’s favor and finds that the evidence supports the establishment of service connection for PTSD. The Court reiterated in Wise that “[b]y requiring only an ‘approximate balance of positive and negative evidence’ to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107 (b), the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). Although the October 2019 VA examiner stated there was no objective evidence to support the Veteran’s contentions of MST, the Board finds that the Veteran’s assertions of feeling intimated and coerced during service are credible, and personnel records document a change in behavior as well as transfer to a different company subsequent to the asserted MST. As such, the Veteran’s in-service stressor of MST has been conceded and a VA examiner diagnosed the Veteran with PTSD based on her account of MST, indicating that her stressor met the requirements of criterion A to support a diagnosis of PTSD. In light of the discussion above, while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. As such, the Veteran’s claim for entitlement to service connection for PTSD is granted. L. ANDERSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, 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.