Citation Nr: 21010398 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-46 908 DATE: February 24, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s acquired psychiatric disability to include PTSD is related to his active military service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, an acquired psychiatric disability to include PTSD was incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which declined to reopen the Veteran’s claim of entitlement to service connection for a nervous disability. The Veteran filed a notice of disagreement (NOD) in February 2014. A statement of the case (SOC) was issued in December 2015 and he perfected a timely appeal in December 2015. In a March 2019 decision, the Board reopened the claim of entitlement to service connection for an acquired psychiatric disability and remanded the matter for further evidentiary development. A review of the record reflects substantial compliance with the Board’s Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was issued in September 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for an acquired psychiatric disability to include PTSD. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Diseases diagnosed after discharge may still be service connected when all the evidence, including pertinent service records, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including psychosis, when manifested to a compensable degree within the initial post-service year. See 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Entitlement to service connection for PTSD has specific requirements of medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (requiring diagnosis to conform to DSM-IV and be supported by findings on examination report); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). VA has amended 38 C.F.R. § 4.125(a) to require the diagnosis to conform to DSM-5, but this amendment does not apply to cases such as this one that were certified to the Board prior to August 4, 2014. See Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (Mar. 19, 2015). The Board notes that, with regard to stressor verification, the VA regulation at 38 C.F.R. § 3.304(f) was amended to liberalize the requirement of verification or corroboration of a veteran’s claimed in-service stressor events in a PTSD claim. 38 C.F.R. § 3.304(f)(3), as added in 75 Fed. Reg. 39,843-852 (July 13, 2010). However, these revisions do not pertain to claims for PTSD that, as here, are predicated on personal (sexual) assault, combat, or prisoner of war (POW) experience because these types of claims already have their special provisions for establishing the occurrence of a stressor in these other type situations. Acevedo v. Shinseki, 25 Vet. App. 286 (2012) (38 C.F.R. § 3.304 (f)(3) applies only to hostile military or terrorist activity, and generally does not apply in sexual assault cases among military personnel). The only notable change for claims predicated on personal assault was the redesignation of this type of claim from subpart (f)(4) to (f)(5). Under 38 C.F.R. § 3.304(f)(5), evidence of behavior changes following the claimed in-service assault may constitute credible supporting evidence of the stressor. 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. VA may submit any evidence that it received to an appropriate mental health professional for an opinion as to whether it indicates that a personal assault occurred. With regard to personal assault cases, the Court has held that “VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis.” Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996) (citing VA Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c (8)-(9)) (later redesignated as Part VI, 11.38b(2), and now rescinded), aff’d 124 F.3d 228 (Fed. Cir 1997). The provisions of M21-1 (regarding special evidentiary procedures for PTSD claims based on personal assault) are substantive rules that are equivalent to VA regulations. YR v. West, 11 Vet. App. 393 (1998) & Cohen v. Brown, 10 Vet. App. 128 (1997). In this case, the Veteran asserts that he has an acquired psychiatric disorder to include PTSD, which began during his military service. Specifically, he argues that he developed a psychiatric disorder as a result of witnessing the death of a fellow soldier during a basic training accident. See, e.g., the Veteran’s VA Form 9 dated December 2015. He has also described experiencing in-service harassment and physical abuse from his sergeant during military training. Id. The Board initially notes that the record does not reflect, and the Veteran does not contend, that the stressor upon which he relies is related to combat or POW experiences. Thus, the record must contain service records or other credible evidence which corroborates the reported stressor. See 38 C.F.R. § 3.304(f)(5). The Board must determine the credibility and probative value of the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1977) and cases cited therein (holding that the Board has the duty to assess credibility and weight to be given to the evidence). As a lay person, the Veteran is competent to provide evidence of observable events, including having been personally assaulted and harassed. See Savage v. Gober, 10 Vet. App. 488, 496 (1997). The question thus becomes one of credibility. The Board recognizes that the present case, involving allegations of physical assault and harassment, falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events about which a veteran complains. See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999). Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault. See YR v. West, 11 Vet. Ap. 393, 399 (1998). To this end, the record reflects that the Veteran served on active duty from February 1971 to September 1971. His service treatment records (STRs) show that he went absent without leave (AWOL) from Fort Jackson, South Carolina, while home on leave in June 1971. During the AWOL period, he was seen by a private physician and was then referred to the U.S. Naval Hospital at St. Albans, New York. See the STRs dated August 1971. He was subsequently admitted Walter Reed Army Hospital in June 1971 and was initially diagnosed with an acute schizophrenic reaction. Id. During his admission, it was noted that the Veteran had seen a psychiatrist while stationed at Fort Jackson. Id. The Veteran was evaluated by the Psychiatric Service at Walter Reed from June 1971 to August 1971 and was diagnosed with an inadequate personality disorder. He was subsequently recommended for discharge for unsuitability due to character and behavior disorders. Upon his September 1971 discharge from military service, the Veteran filed a claim of entitlement to service connection for nervous disorder. The claim was denied in an October 1971 RO decision. A private psychiatric evaluation dated in September 1993 documented the Veteran’s report that he developed emotional problems during his military service. The private psychiatrist diagnosed the Veteran with schizoaffective disorder. In an August 2012 letter, Dr. W.F. reported that the Veteran is diagnosed with PTSD, major depression, and anxiety. In an August 2012 letter, Dr. J.B. indicated that the Veteran is treated for depression and anxiety. Private treatment records dated in January 2013 noted a history of depression, with current diagnoses of major depressive disorder, alcohol dependence in remission, and PTSD. A March 2013 private psychological evaluation noted the Veteran’s report that, during basic training, he witnessed the gruesome accidental death of a fellow soldier. The psychologist further stated that the Veteran “truly feels that every one of his higher-ups was personally out to get him. He relates stories of his sergeants denying him help, threatening him, forcefully taking his personal property, and unfairly punishing him all of the time.” See the psychological evaluation dated March 2013. The psychologist noted that the Veteran is a very poor historian due to his mental health symptoms. The psychologist concluded that the Veteran likely has a cognitive disorder, not otherwise specified (NOS), as a result of early brain injury and shock treatments. VA treatment records dated in August 2013 document diagnoses of depression and PTSD. The Veteran reported experiencing regular nightmares related to physical and emotional abuse from a sergeant in the military. In a February 2014 statement, the Veteran’s counselor reported that the Veteran currently suffers from PTSD related to the trauma he suffered in training at Fort Jackson. VA treatment records dated in February 2014 document the conclusion by the Veteran’s treatment provider that he “has PTSD from things he experienced in the service.” In a February 2016 statement, the Veteran’s counselor confirmed continuing diagnoses of PTSD and major depressive disorder, with no psychotic features. In a May 2019 statement, she reiterated her diagnosis of PTSD. Pursuant to the March 2019 Board Remand, the Veteran was afforded a VA examination in December 2019 at which time the examiner confirmed a diagnosis of PTSD. The examiner indicated that the stressor for the Veteran’s PTSD was that he had learning disabilities and struggled in training camp when drafted. The examiner noted the Veteran’s report that he was beaten every day by his commanding officer, and wound up in sick leave every day. He managed to escape, was AWOL for two days, and eventually was sent to Walter Reed where he was placed on a ward with people with combat injuries. In a separate December 2019 VA medical opinion, the examiner stated that the diagnosed PTSD was at least as likely as not incurred in the Veteran’s military service. The examiner explained that the onset of the Veteran’s PTSD “symptoms and psychiatric problems coincides with episodes of assault by his commanding officer. Therefore, [the Veteran’s] psychiatric disorder is at least as likely as not caused by the claimed inservice injury.” The examiner continued, “[the Veteran] reports commanding officer beat him because claimant was struggling to learn information. The records from 1971 primarily conclude that his history of headaches predates service, and no mention is specifically made about PTSD symptoms.” The examiner explained, “[t]here is limited report of symptoms of tearfulness, depression, and ‘inadequate personality,’ which is an obsolete diagnosis and not recognized under current diagnostic criteria.” In a September 2020 formal finding, VA concluded that the evidence was insufficient to corroborate the Veteran’s report concerning the accidental training death of a fellow soldier. After a review of the record, the Board has determined that the evidence of record is at least in equipoise as to whether the Veteran’s diagnosed acquired psychiatric disorder to include PTSD was incurred during his military service. The Board recognizes that the Veteran’s report of witnessing the accidental death of a fellow trainee has not been corroborated. However, with respect to the in-service harassment and abuse claimed by the Veteran, the Board finds no adequate basis to reject the competent lay statements and medical evidence of record that is favorable to the Veteran, based on a rational lack of credibility or probative value. See Madden, supra; see also Evans v. West, 12 Vet. App. 22, 26 (1998). The evidence is not unequivocal; however, the Board nevertheless finds that the evidence is at least in equipoise. Moreover, if a PTSD claim is based on an in-service personal assault, evidence from sources other than a veteran’s service records may corroborate an account of a stressor incident. Further, the Court has said that the categorical statement, used in other decisions, such as Moreau and Cohen, that an opinion by a mental health professional based on a post-service examination cannot be used to establish the occurrence of a stressor is not operative in a personal assault case. See Patton v. West, 12 Vet. App. 272, 279-280 (1999). Indeed, in Menegassi v. Shinseki, 628 F.3d 1379 (Fed. Cir. 2011), the Federal Circuit held that under 38 C.F.R. § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether a claimed stressor occurred, and such opinion evidence should be weighed along with the other evidence of record in making this determination. Id. at 1382 & n. 1. As described above, the Veteran has a been diagnosed with PTSD due to assault and harassment under the DSM-5 criteria by VA and private psychologists, psychiatrists, and treatment providers. Overall, the Board finds that the record supports an award of service connection for PTSD as due to in-service assault and harassment. In so finding, the Board placed significant weight on the findings of the December 2019 VA examiner who considered the Veteran’s medical history in providing a diagnosis of PTSD. In addition, multiple private and VA treatment providers have concluded that the Veteran suffers from PTSD, major depressive disorder, and anxiety as a result of his military service. Accordingly, the evidence is at least evenly balanced as to whether the Veteran’s diagnosed acquired psychiatric disorder to include PTSD is related to his military service including the claimed military stressor. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection is warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.