Citation Nr: 21009145 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 12-23 614 DATE: February 19, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), bipolar disorder, and alcohol abuse disorder due to military sexual trauma (MST), is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to an acquired psychiatric disability is granted. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to an acquired psychiatric disability is granted. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to an acquired psychiatric disability is granted. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, the Veteran has a current acquired psychiatric disability, to include PTSD, bipolar disorder, and alcohol abuse disorder, that is linked to his in-service MST. 2. The Veteran’s GERD is caused or aggravated by his service-connected acquired psychiatric disability. 3. The Veteran’s ED is caused or aggravated by his service-connected acquired psychiatric disability. 4. The Veteran’s OSA is caused or aggravated by his service-connected acquired psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include PTSD, bipolar disorder, and alcohol abuse disorder due to MST have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 2. The criteria for service connection for GERD as secondary to an acquired psychiatric disability have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 3. The criteria for service connection for ED as secondary to an acquired psychiatric disability have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2019). 4. The criteria for service connection for OSA as secondary to an acquired psychiatric disability have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1985 to August 1986. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in November 2016 and August 2019. The case has now been returned to the Board for further appellate action. Service Connection – Acquired Psychiatric Disorder The Veteran claims that he was sexually assaulted during service, resulting in an acquired psychiatric disability, to include PTSD. 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. Treatment records note DSM-5 diagnoses of PTSD, bipolar disorder, and alcohol use disorder in remission. Therefore, the Board finds that a current psychiatric disability is established. Regarding in-service injury or event, the Veteran alleges that he was raped by two men during active service. There is no documentation of a rape in the service treatment records (STRs). The Veteran reported he did not discuss the rape with anyone due to the deep shame that he felt. However, he stated that subsequent to the rape, his job performance declined, and he began to drink as a way to cope with his psychiatric symptoms. See, e.g., September 2010 Claim. Service personnel records reflect that the Veteran failed to obtain a Military Occupational Specialty (MOS) within two attempts, and the Army recommended a discharge. Following service, the Veteran reported a period of homelessness and unemployment. Post-service treatment records show a history of treatment for bipolar disorder and alcohol abuse since at least the mid-1990s. The Veteran has also submitted statements from a family friend and relative noting a difference in behaviors following service. Several psychiatric examiners have opined as to whether evidence indicative of MST in the Veteran’s claims file. A November 2018 VA examiner opined that it is less likely than not that the two failed MOS tests during service are indicative of MST, noting that the Veteran excelled in his training programs and only came up short in very specialized skill areas. The examiner found that the Veteran’s report of sexual assault was inconsistent, noting that in 2010 the Veteran reported that he was sexually assaulted in the bathroom of a hotel room, and during the examination he stated that he was assaulted in the bed of the hotel room. The examiner also stated that the Veteran was unclear on the timing of the event. The examiner reviewed the “buddy” statements which indicate a decline in functioning following the military, but the examiner appeared to attribute that decline to premilitary incidents (i.e., bullying and teen drinking). Additionally, an October 2020 VA examiner opined that, while MOS/change in job performance is a potential marker of MST, there is insufficient evidence that they are markers of MST in this case. The examiner reasoned that in 1987, the Veteran stated that he failed the courses due to poor “comprehension of a difficult dialect of the Spanish language and . . . passing a demanding voice test.” Further, the examiner noted the absence of mental health complaints during service and that the Veteran first claimed MST 25 years after the event in September 2010. In contrast, a June 2020 private examiner found that the Veteran’s failure to obtain a MOS was a marker of MST, noting that the Veteran’s performance prior to the rape was initially positive and good, and deteriorated after the sexual assault. The examiner also noted that the Veteran’s alcohol abuse, inability to hold a job, interpersonal difficulties, difficulty with sexual relationships with women, seeking therapy for PTSD, and personality changes after service as described by family members, were all markers of MST. The Board finds that the June 2020 opinion to be the most probative of the three. As noted in the prior Remand, the November 2018 opinion is inadequate as it failed to consider the Veteran’s lay statements regarding onset and continuity of symptoms. The October 2020 examiner similarly failed to adequately address the Veteran’s lay statements or other potential MST markers. However, the June 2020 examiner provided a detailed discussion of the Veteran’s history and is consistent with the treatment reports, the Veteran’s lay statements, and statements from those who have known him before and after service. The Board finds the June 2020 opinion to be probative and thus finds that there is sufficient evidence of MST. As to whether the Veteran’s current diagnoses are related to his MST, an August 2011 letter from the Veteran’s treating psychiatrist noted that the Veteran had diagnoses of bipolar disorder type I, alcohol dependence in remission, and PTSD (diagnosed approximately 2005). The psychiatrist noted the Veteran’s rape in the military, and that the Veteran was finally ready to confront the issue and work toward moving forward. She noted that symptoms included intrusive symptoms including dreams, flashbacks, and hallucinations associated with the event. She stated that the Veteran tended to avoid thoughts and conversations associated with the trauma as well as people, places, and activities that brought back recollections. As a result, he had issues with trust in relationships. Additionally, a May 2019 letter from the Veteran’s treating counselor stated that the Veteran had been diagnosed with PTSD and mood disorder not otherwise specified, and she described the treatment being provided to assist the Veteran in moving forward from the sexual assault in service. The counselor opined that the Veteran “more likely than not experienced the abuse in which he described and has experienced the symptoms of someone who has experienced sexual assault.” Finally, the June 2020 private examiner opined that the Veteran’s PTSD more likely than not incurred in, or was caused by the MST. The examiner reasoned that the Veteran’s post-service social and occupational impairments and psychological deterioration were due to his PTSD from the MST incident in service. The examiner cited literature regarding sexual assault of men in the military, PTSD delayed expression, and PTSD with substance abuse. In contrast, the October 2018 and November 2020 VA examiners rendered negative etiological opinions based on the fact that they did not find MST in service. Because the Board has concluded that there is sufficient evidence of MST, the premise on which those opinions are based is inaccurate. Consequently, those opinions have little probative value as to the question of nexus. In sum, the Board finds that service connection for an acquired psychiatric disability, to include PTSD due to MST, is warranted. First, there is a current diagnosis of an acquired psychiatric disability, including PTSD. Second, there is sufficient evidence of MST. Third, and finally, there is probative medical evidence regarding a nexus between the in-service MST and the current psychiatric diagnosis. Consequently, service connection for an acquired psychiatric disability is granted. 38 U.S.C. § 5107 (2018); 38 C.F.R. § 3.102 (2019). Service Connection – GERD, ED, and OSA The Veteran asserts that his GERD, ED, and OSA are all caused or aggravated by his acquired psychiatric disability. The medical evidence of record reflects current diagnoses of GERD, ED, and moderate OSA. Additionally, a physician and a psychiatrist have both opined that the Veteran’s PTSD caused his GERD, ED, and OSA. There are no medical opinions to the contrary. (Continued on the next page)   Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current GERD, ED, and OSA are proximately due to his service-connected acquired psychiatric disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for GERD, ED, and OSA is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, 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.