Citation Nr: 21012414 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-31 288 DATE: March 4, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran’s PTSD is related to sexual harassment during her period of honorable service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1977 to August 1981. She has an additional period of service from November 1981 to February 1985 that has been deemed dishonorable for VA purposes. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Board notes that the Veteran underwent gender reassignment surgery and had her name changed. During her Board hearing, she noted that she would submit formal documentation to VA to reflect such changes. At this time, the Board does not have the official certifications to formally change the Veteran’s name and gender on her claim file. Once the required documentation is received, the Veteran’s name and gender on her file should be changed. The Board will not delay adjudication of the appeal given that the decision below is fully favorable. The Board has added her new name to the header of this decision and will refer to her as female. During her Board hearing, the Veteran requested that her case be advanced on the docket due to financial hardship and grave illness. See 38 C.F.R. § 20.800(c). At this time, the motion is denied due to an absence of evidence of financial hardship and, while she is ill, her condition does not appear to meet regulation requirements. She is welcome to submit additional evidence in support of her motion at any time while her case is being adjudicated by the Agency of Original Jurisdiction (AOJ). Entitlement to service connection for an acquired psychological disorder. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires credible supporting evidence that the claimed inservice stressor occurred. 38 C.F.R. § 3.304(f). However, if the 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. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. 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). For purposes of 38 C.F.R. § 3.304(f)(5), personal assault includes military sexual trauma (MST). Serv. Women’s Action Network v. Sec’y of Veterans Affairs, 815 F.3d 1369, 1373 (Fed. Cir. 2016). VA defines MST as “psychological trauma, which in the judgment of a mental health professional employed by [VA], resulted from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the veteran was serving on active duty, active duty for training, or inactive duty training.” Id. at 1372 (quoting 38 U.S.C. § 1720D(a)(1)) (emphasis added). The Veteran reported that her PTSD is due to in-service sexual harassment that began during her period of honorable service. She was afraid to report the harassment to her superiors due to the stigma associated with her sexual orientation and the fact that her superiors were partaking in the harassment. She testified that she started to smoke marijuana during her first period of service and got in trouble for it, including a reduction of rank. She was eventually discharged from her second period of service due to her substance use, when urine tests began to be used to test for drug use. See February 2021 Board hearing. The Veteran’s service treatment records do not reflect any treatment related to harassment. Her personnel records are almost illegible. However, it is clear that the Veteran was punished for several infractions during her first period of service, to include failure to report to a place of duty and communicating a threat to another servicemember. See September 1978 and September 1979 service personnel records. February 1985 personnel records also reflect that she was discharged from her second period of service due to substance use. Her DD214s reflect that she had her rank demoted during her second period of service. An October 2014 VA examiner diagnosed bipolar disorder, gender dysphoria, and bulimia nervosa and opined it was less likely than not that the disorders were related to service because there was no evidence of markers around the time of trauma in personnel records. This opinion is inadequate because it does not discuss whether the infractions during her first period of service are potential markers. As a result, the opinion is given no probative weight. VA treatment records reflect the Veteran is diagnosed with PTSD pursuant to the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5). See November 2017 VA treatment records. The same physician provided an opinion that the Veteran’s PTSD was due to in-service sexual harassment related to her sexual orientation and gender identity. The physician discussed the stigma that was magnified as the Veteran would have been considered a homosexual serving in the military at the time, which would have led to an immediate termination of her career. The physician opined that the Veteran’s substance abuse was to cope with her symptoms and that it was not uncommon for individuals to suffer in silence with symptoms associated with MST for many years before seeking help. See May 2018 medical opinion. The Board finds this opinion adequate for appellate review. The physician relied on examination of the Veteran and she provided a full and detailed rationale that included discussion of the Veteran’s diagnosed disability and lay statements of reported history. Thus, the opinion is assigned significant probative weight. CONTINUED ON NEXT PAGE After consideration of the evidence in personnel records and the opinion by the VA treating physician, the Board finds that such records sufficiently corroborate the Veteran’s testimony regarding in-service personal assault in the form of sexual harassment. Because the probative evidence reflects that the Veteran’s PTSD is related to her honorable service, service connection is warranted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.