Citation Nr: 21011217 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-35 742 DATE: March 1, 2021 REMANDED Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) due to military sexual trauma (MST), is remanded. REASONS FOR REMAND The Veteran had active honorable service from November 1979 to March 1986 and service categorized as other than honorable from March 1986 through March 1988. The Department of Veterans Affairs (VA) is grateful for her service. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2020. A transcript is of record. The Veteran was first denied service connection for a psychiatric disability by a November 1990 VA Regional Office (RO) decision. The Veteran’s claim for service connection for a psychiatric disability to include PTSD was subsequently denied by a February 2016 RO decision, which is the subject of the present appeal. Because pertinent service treatment records and service personnel records were added to the claims file subsequent to the November 1990 decision, the original November 1990 decision is reconsidered, and the appealed claim treated simply as a claim for service connection. Reopening of the claim is not required. 38 C.F.R. § 3.156(c)(1); Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008); see also Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011); Emerson v. McDonald, 28 Vet. App. 200 (2016) (clarifying that VA must reconsider a claim when relevant service records are received any time after the original denial). Entitlement to service connection for a psychiatric disability, to include PTSD due MST, is remanded. The Veteran claims entitlement to service connection for PTSD based on a reported rape in service. Remand is required for clarification of the date of the reported rape. A VA examination may then be required, as explained below. Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran's service records may corroborate a veteran's account of the stressor incident. Examples of such evidence include, but are not limited to, the following: 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. Under 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Further, corroboration of every detail, including the veteran's personal participation is not required; rather the veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure. Suozzi v. Brown, 10 Vet. App. 307 (1997). See also Pentecost v. Principi, 16 Vet. App. 124 (2002). In this case, the service personnel records reflect that the Veteran had exemplary performance reviews up to 1986, but then her performance deteriorated, and ultimately she accepted an other than honorable discharge from her final period of service in lieu of a other punishment under a Courts-Martial for actions including use of cocaine, failures to present for duty, failures to obey orders, and being absent without leave (AWOL). The Veteran has attributed these declines in performance and misconduct to her rape by a superior officer and a friend of that officer while the Veteran was stationed in Germany. The Veteran’s service personnel records document that the Veteran was stationed in Germany from August 1983 to August 1985 and not subsequent to that time. Added to the claims file in October 1990 is a printed report of a VA hospitalization from June to July 1990. (A substantially illegible hand-written record of the same hospitalization was associated with the claims file in September 1990.) Noted diagnoses delayed PTSD, cocaine dependence, and alcohol abuse. The report notes the Veteran’s symptoms associated with her rape in 1985, including intrusive thoughts and nightmares. The report notes a history of substance abuse following the 1985 rape but not before it, and also documents the Veteran’s recent past treatment including three drug rehabilitations programs. In June 1990 the Veteran submitted a claim for service connection for cocaine, rape, and nerves. In an April 1995 statement the Veteran informed that she experienced sexual trauma when she was raped by two officers “while overseas in August 1986 prior to my out processing from Germany,” one of whom she had worked for, and that they had then threatened her and told no one would do anything if she reported the rape. In an October 2015 statement, the Veteran reported being sexually assaulted in Germany in 1986, and that as a consequence she has had significant psychological, interpersonal, and professional difficulties, as well as substance abuse. In another October 2015 statement, the Veteran reported being sexually assaulted by her superior and a friend of his while she was stationed in Germany in August 1986, and that she did not tell anyone because she was ashamed. A September 2013 Disability Benefits Questionnaire (DBQ) added to the record in October 2015, signed by a social work and a psychiatrist, diagnoses PTSD. The DBQ notes the Veteran’s history of cocaine abuse from 1987 to 1994 with three inpatient rehabilitations and a history of alcohol use after that interval with continued significant alcohol intake. However, the DBQ fails to address a specific stressor to support the PTSD diagnosis. One difficulty presented in this case is the absence of contemporaneous documentation of the Veteran’s reported rape in service in Germany, though the Veteran’s subsequent performance decline, polysubstance abuse, misconduct, and an other-than-honorable discharge serve to support the rape’s occurrence. Another difficulty is the Veteran’s inconsistent reporting of the year of the rape. While the Veteran initially reported that it occurred in 1985, she subsequently reported that it occurred in 1986. If it were in 1985, then it was during an honorable period of service, and PTSD based on the rape as stressor may be service connected. However, if the rape occurred in 1986, then the rape was during an other-than-honorable period of service, and PTSD cannot be service-connected based on the rape. The character of discharge from the Veteran’s final period of service from March 1986 to March 1988 under other than honorable conditions, due to misconduct, is a bar to qualification for VA benefits based on that period of service. 38 U.S.C. § 5303; 38 C.F.R. §§ 3.1(d), 3.12. VA administrative decisions in June 1989 and August 1995 confirmed the status of the Veteran’s periods of service as honorable from November 1979 to March 1986, but other than honorable from March 1986 through March 1988. Fortunately, the Veteran has consistently reported that the rape occurred while she was stationed in Germany, and the Veteran’s service personnel records plainly document that she departed from her stationing in Germany in August 1985 and had no subsequent stationing in Germany. Remand is warranted to request clarification from the Veteran of the approximate date the report rape occurred. If the Veteran then reports that the rape occurred in 1985 while she was stationed in Germany, then the reported rape would have occurred during honorable service, and PTSD may potentially be established on that basis. A VA examination would then be warranted to address whether the Veteran suffers from PTSD or other psychiatric disability causally associated with the reported MST. The Veteran has yet to be afforded such an examination. The matter is REMANDED for the following action: 1. Contact the Veteran and request that she clarify whether or not her rape occurred while she was stationed in Germany in 1985. Any response should be documented in the claims file. 2. Thereafter, if the Veteran reports that her rape occurred in 1985 or otherwise during a period of honorable service, then obtain an examination by a qualified mental health professional to address any psychiatric disability present during the claim period from June 1990 to the present, and any etiology related to service, to include posttraumatic stress disorder (PTSD) as a result of an in-service military sexual trauma /rape stressor. The examiner is to be advised that the Veteran is claiming PTSD as a result of rape which occurred when a superior and a friend of his sexually assaulted her while she was stationed in Germany. She reports that she did not then tell anyone because she was ashamed and because her rapists threatened her and told her no one would do anything if she reported it. Service personnel records reflect that she had consistently exemplary performance prior to 1986, but that she had subsequent performance decline, polysubstance abuse, misconduct, and an other-than-honorable discharge from a period of service beginning in March 1986 in lieu of a other punishment under a Courts-Martial for actions including use of cocaine, failures to present for duty, failures to obey orders, and being absent without leave (AWOL). A VA hospitalization report from June 1990 to July 1990 includes diagnoses of PTSD, cocaine abuse, and alcohol dependence. In an April 1995 statement the Veteran reported that she began having nightmares and flashbacks and started using cocaine following her rape. She also reported other related symptoms and interpersonal and professional difficulties. The examiner should carefully review the claims file, conduct any necessary tests and studies, and consider the Veteran’s self-reported history. The examiner must document and consider the Veteran’s own statements regarding her disability, since a layperson is competent to address symptoms as experienced and her recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran’s self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should review the entire record and not limit consideration to the evidence here recounted. The examiner should then opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has PTSD currently, or has had PTSD at any time during the claim period from June 1990 to the present, with the reported rape in service as a stressor supporting that diagnosis. The examiner should address all diagnostic criteria to support a PTSD diagnosis. For any other psychiatric disability present during the claim period from June 1990 to the present, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began during the Veteran’s active, honorable service from November 1979 to March 1986, or is otherwise causally related to that active, honorable service. The examiner must provide a complete explanation for each opinion expressed. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.