Citation Nr: 21012278 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-18 662 DATE: March 4, 2021 ORDER Service connection for a variously diagnosed acquired psychiatric disorder is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's current variously diagnosed acquired psychiatric disorder is related to his military service. CONCLUSION OF LAW The criteria for service connection for a variously diagnosed acquired psychiatric disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1975 to December 1979. In March 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. In August 2019, the Board remanded this matter for further development. 1. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder (PTSD) due to military sexual trauma (MST). The Veteran essentially contends he has a psychiatric disorder, to include depression and PTSD, related to his active service, to include MST. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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). If a PTSD claim is based on in-service personal assault, evidence from sources other than 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. 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. 38 C.F.R. § 3.304(f)(5); Patton v. West, 12 Vet. App. 272 (1999). The Board concludes that the Veteran has a current acquired psychiatric disorder that is related to service, to specifically include his reported MST. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009). With regard to a current disability, a November 2007 VA treatment record first noted a diagnosis of depression. Thereafter, in April 2014, the Veteran was seen for a psychotherapy session following an MST evaluation. He reported his moods shifted between depression, anger, and fear, and that he had had these mood concerns since his early twenties. He also reported long-standing problems with anxiety and fear. The diagnoses included persistent depressive disorder and generalized anxiety disorder. In June 2016, the Veteran received inpatient psychiatric care to address depressive symptoms with suicidal ideation. He reported a history of MST, as well as witnessing many traumatic events as a hospital corpsman, but he did not report the MST while in service. The discharge diagnoses included PTSD, and major depressive disorder. Thereafter, it was noted that the Veteran had just told V.D., a friend, about his MST, and he was severely depressed. In an April 2018 letter, a VA psychiatrist noted the Veteran had been under his care for since 2016, and his diagnoses included persistent depressive disorder with persistent major depressive episode, generalized anxiety disorder, and PTSD secondary to his MST. In a letter dated in March 2019, L.H., noted the Veteran suffered from depression and PTSD since service, and that during service he was the victim of several sexual assaults, which resulted in emotional trauma, which led to mental health problems. Most recently, in a September 2020 VA treatment record and the October 2020 VA disability benefits questionnaire (DBQ) examination, diagnoses of generalized anxiety disorder, major depressive disorder, dysthymia, and PTSD were noted. Thus, the record is clear that the Veteran does have a current psychiatric diagnosis, albeit variously diagnosed, to include as PTSD, generalized anxiety disorder, and major depressive disorder. The next question is whether there was an in-service event or injury that caused the Veteran’s current psychiatric disability. Service treatment records (STRs) show no report or finding of symptoms related to depression, PTSD, or any other psychiatric disorder during service. STRs also show no indication of the Veteran’s reported sexual assault; however, it is acknowledged that the Veteran has indicated he did not report the assault. In a June 2016 letter, Dr. K. noted the Veteran’s report that he was raped and beaten up multiple times in service, and stated that he believed the Veteran was suffering from posttraumatic syndrome. Received from the Veteran in July 2016 is a Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault (VA Form 21-0781a), in which he reported that in October 1978, while at Great Lakes Naval Hospital, he was sexually assaulted and was physically forced on several occasions. He reported that after service he struggled to deal with his mental condition, and 10 years ago sought professional help for MST, because his mental health was affected by severe depression, nightmares, being jumpy and anxious, suicidal thoughts, anger, rage, embarrassment, shame, memory problems, difficulty trusting people, and feeling emotionally numb. In a letter dated in April 2018, a private psychologist, L.H., MA, LLP, noted that the Veteran presented in February 2018, and that an assessment of his mental health had been conducted based on interviews and psychometric testing over the course of four appointments. L.H. summarized that during the Veteran’s service in the Navy he was raped and beaten on more than one occasion, resulting in MST, and that he began to develop symptoms associated with PTSD. L.H. noted that after separation, the Veteran’s symptoms continued to be problematic, and that he became withdrawn, jumpy, distrustful, had nightmares, and felt as if he was reliving the incidents. He began to experience rage, panic attacks, feelings of worthlessness, suicidal ideation, and also suicide attempts, and required inpatient psychiatric hospitalizations. L.H. noted the Veteran had been treated for some time for major depression, generalized anxiety disorder, and PTSD. It was also noted that the Veteran showed severe cognitive impairment, and his symptoms had not been alleviated by psychotropic medications. In March 2019, the Veteran testified before the Board that he had been sexually assaulted and harassed in service, and that after this he was so troubled he moved off base for half a year and lived in the trailer behind someone’s house, but that he did not know who the person was. He did not report the attacks in service to anyone and did not file a police report. He testified he only went to the psychiatrist in service for depression because he did not want to really tell the psychiatrist what had happened to him. He indicated that after these incidents happened in service, he began to have problems with depression and with doing his job because of depression. He testified he had not been able to talk about the attacks in service for decades. Received in February 2020 from the Veteran was another VA Form 21-0781a in which he reported that in June 1978, when he was a hospital corpsman at Great Lakes Naval Hospital, on several occasions, he was beaten, raped, and sexually harassed, and that in October 1978 he was sexually assaulted and raped. In a February 2020 statement, the Veteran reported that after the MST occurred in service, his behavior changed, he became uncomfortable functioning in life, and his depression worsened. Further, in a February 2020 statement, the Veteran’s friend, V.D., indicated that in high school, he was smart, happy, and active, but when she saw the Veteran in 1980, after service, she knew something was wrong, noting he was sad, depressed, not social, and seemed confused. She indicated that she asked him what was wrong, but he replied nothing. V.D. noted that it took years for the Veteran to tell her what happened to him, and that when he did he made her promise not to tell anyone, and stated he had been sexually assaulted repeatedly and overpowered by three men, sometimes four, on base and off base. V.D. also noted that the Veteran told her he made an appointment with a psychiatrist at Great Lakes Naval Hospital, but they did nothing and showed no interest. In a March 2020 letter, the Veteran’s treating psychologist, L.H., stated the Veteran gave an emotional and believable account of incidents of sexual assault that occurred while he was in service, and that according to family and friends, the Veteran was a smart and high functioning young man when he entered service, but that after service separation, they noticed a marked change in him as he was depressed, isolative, and at times, suicidal. L.H. explained that as is often the case with victims of sexual assault, the victim feels shame and is not likely to share the experience with others. With regard to the Veteran’s report that he talked of the experience with a psychiatrist, but not with his commanding officer, L.H. stated that due to fear of stigma as well as the attitudes toward assault victims (particularly in the 1970s), it was very understandable why he would be reluctant to discuss these experiences. While the October 2020 VA examiner noted that the Veteran’s description of MST was vague to the point he did not recall many details of the alleged assaults, that his friend, V.D. was present during the interview and appeared to provide more details, and that the Veteran seemed to rely on her to fill in details, and appeared to follow her lead, the examiner also acknowledged that to some extent, the Veteran's history of a stroke might impair his memory. In that regard, it is noted that in a March 2019 letter, Dr. D. had indicated the Veteran had a recent stroke. Although at the 2020 VA examination the Veteran was not able to recall all of the details of the in-service assaults, the Board resolves reasonable doubt in his favor and finds there is sufficient evidence of record to corroborate his account of this stressor, and, moreover, his statements made prior to March 2019 to his private psychologist, L.H., to the VA psychiatrist, to his friend, V.D. and other statements noted in VA records, are largely consistent with his original description of the stressor incident. Also, with regard to an in-service stressor event, the Board notes that the February 2020 statement from the Veteran's friend and roommate, V.D., tends to corroborate the Veteran’s initial account. In particular, the February 2020 statement from V.D. basically reported that when the Veteran separated from service, he was not the same person as before, and that he did not mentioned the MST trauma in service to her, until years later. The Board affords these statements significant weight, as the Veteran's friend is competent to describe her perception of the Veteran before and after his service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Based on the Veteran's and his friend's statements, the Board resolves reasonable doubt in his favor and finds that the evidence of record tends to corroborate his account of the stressor incident. Thus, the in-service stressor element of service connection for PTSD is satisfied. 38 C.F.R. §§ 3.102, 3.304(f). Thus, the question becomes whether the Veteran’s current psychiatric disorder is related to service, to include MST therein. On this question the Board finds there is competent medical evidence both for and against the claim. The evidence against the claim includes an October 2020 VA DBQ report, in which the examiner concluded the Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria, but that his current diagnoses included generalized anxiety disorder and major depressive disorder. The examiner was not able to verify at a level of certainty of 50 percent or greater that the Veteran's mental disorder was secondary to military trauma, to include MST, nor that his diagnosis was incurred in service and/or secondary to military stressors. For rationale, the examiner noted there were no identifiable markers to substantiate the Veteran's claim beyond his self-report, and that his description of MST was vague to the point he did not recall many details of the alleged assaults, that his friend, V.D. was present during the interview and appeared to provide more details, and that the Veteran seemed to rely on her to fill in details and appeared to follow her lead. The examiner acknowledged that to some extent, the Veteran's history of stroke might impair his memory, but that the lack of clarity regarding the stressors he evidenced seemed excessive. The examiner conducted a thorough review of the record and concluded that these records suggested that VA providers and officials who had encountered the Veteran and heard his story generally had found him to be credible. With regard to stressors, the examiner noted that the Veteran’s report that he was sexually assaulted several times in service was adequate to support a diagnosis of PTSD, and that although a diagnosis of PTSD was suggested by the symptoms noted to meet the diagnostic criteria under DSM-5, a diagnosis of PTSD was not given because there was considerable overlap with depressive symptoms and it was not clear that the Veteran's symptoms were related to the alleged stressors. The evidence in favor of the claim includes the March 2020 letter from the private psychologist, L.H., who indicated she had been seeing the Veteran for “sometime due to depression, PTSD, and trauma”, and noted he gave an emotional and believable account of incidents of sexual assault that occurred while he was in service. L.H. opined that based on the Veteran’s marked deterioration upon discharge and his believable accounts of his experiences, that he was more likely than not sexually assaulted in the service which precipitated his lifelong struggle with depression and PTSD. In reviewing the two opinions, the Board concludes that the private psychologist’s nexus opinion is given greater weight because L.H. interviewed and observed the Veteran over multiple sessions starting in February 2018, and provided a definitive opinion with references to pertinent parts of the record and supporting rationale. Although the 2020 VA examiner indicated the Veteran did not have a diagnosis of PTSD that conformed to the DSM criteria, the examiner also noted that the Veteran’s report he was sexually assaulted several times in service was adequate to support a diagnosis of PTSD and that a diagnosis of PTSD was suggested by the symptoms checked off under the diagnostic criteria of DSM, but that there considerable overlap with depressive symptoms and it was not clear that his symptoms related to the alleged stressors. The examiner failed to reconcile these findings with other contradictory VA and private medical treatment records which do suggest that the Veteran has a variously diagnosed acquired psychiatric disorder due to MST. Accordingly, the Board assigns the 2020 VA DBQ examination report slightly less probative value. In light of the foregoing, the Board finds the evidence is at least in equipoise as to whether the Veteran’s current acquired psychiatric disorder, variously diagnosed, is related to service, and specifically his MST. Resolving reasonable doubt in the Veteran's favor, service connection is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.