Citation Nr: 21015617 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-20 776 DATE: March 17, 2021 ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) as due to military sexual trauma (MST). REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), to include as due to military sexual trauma (MST). REASONS FOR REMAND The Veteran served on active duty from December 1974 to February1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In November 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the record. The record was also held open for 90 days for the submission of additional evidence in the form of an Opinion Letter. See November 17, 2020 Board Hearing transcript, pg. 6. Since the Board hearing, no additional information has been received from the Veteran or his representative. As this case is being remanded for additional development, the Veteran's representative is invited to submit again the evidence she had intended to submit at the November 2020 video conference hearing. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), to include as due to military sexual trauma (MST). The Board finds that further development of this claim is required prior to adjudication. 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. 38 C.F.R. § 3.304 (f)(5) (2018). Discussion The Veteran asserts that while stationed at the Beale Air Force Base, she was attacked and molested (raped) by three or four guys that were TDY (Temporary Duty Assignment) to her station. The Veteran indicated that after this incident she went to her barracks, showered and lied about what just happened—telling everyone that she had fallen, explaining the cuts and bruises. She indicated that she was ashamed and felt that no one would believe her if she told them. The Veteran indicated that she found out later that she was pregnant from the attack. The Veteran stated that she went to her supervisor for advice because she was in her early 20’s. The Veteran stated that he advised her to get an abortion. The Veteran stated that she was told if she made the incident public, all Hell would break loose since she was a junior airman. The Veteran indicated that she took the advice of her supervisor and had the abortion. The Veteran stated that this incident affected her so badly that she shut the memory of what happed out, to try and cope with life. See November 17, 2011 VA Form 21-0781a, Statement in Support of Claim. The Veteran also stated that when she was stationed in Turkey—while she was in the shower, Turkish men would come in and try to fondle and grope her. She indicated that when she would scream for help. She would then have more Turkish men and American GI’s in the showers. The Veteran stated that when she went to the NCO club to grab a bit to eat, they would be falling over her, trying to grope her. Id. At her Board November 2020 Board Hearing, the Veteran testified that she was sexually assaulted at the Beale Air Force Base in California. The Veteran further testified that she was assaulted by Turkish men in the shower when she was stationed in Turkey. See November 17, 2020 Board Hearing transcript, pg. 7. Service treatment records do not show complaints of, or treatment for, any psychiatric disorder. See November 12, 1974 Report of Medical Examination (Enlistment examination); November 12, 1974, Report of Medical History; See also, September 10, 1981 Periodic Qualifying Examination. Military personnel records show that the Veteran’s duty performance was exceptional until approximately June 1976 when there was a marked decrease in her performance both on and off duty that reflected poorly on the military. See February 28, 1977 Supervisor Evaluation. The Veteran was afforded a July 2012 examination to determine to etiology of her claimed PTSD based on personal assault. The Veteran was diagnosis with an anxiety disorder, NOS (some features of PTSD). See July 24, 2012 PTSD examination, pg. 2. The examiner noted the Veteran’s reported a history of sexual assault in 1976/1977 after coming back from the NCO club with a group of other individuals. The examiner reported that she reported the assault to a supervisor but was discouraged to take it any further. The examiner determine that this stressor met Criterion A to support the diagnosis of PTSD. The examiner also noted the incident while stationed in Turkey from 1978 – 1989. The examiner determined that this stressor met Criterion A to support the diagnosis of PTSD. Id. at pgs. 8-9. The examiner indicated, however that even with a stressor event, the Veteran did not appear to meet the full criteria for a PTSD diagnosis. See Id. at pgs. 8-9 & 13. The Veteran was afforded a March 2013 VA examination to determine the etiology of her psychiatric disorder. The Veteran was diagnosed with an anxiety disorder, NOS (subclinical PTSD). The March 2013 examiner noted that the Veteran is reporting numerous symptoms consistent with PTSD, but full PTSD criteria are not met. The examiner reported that the Veteran’s current anxiety and depressive symptoms are best classified as anxiety disorder nos. See March 13, 2013 VA examination pg. 2. The Veteran was afforded a February 2017 PTSD examination and addendum medical opinion regarding the etiology of her psychiatric disability. The Veteran was found to have a diagnosis of PTSD that conformed to DSM-5 criteria. See February 10, 2017 VA PTSD examination, pgs. 1, 6 & 7. The examiner opined that it is at least as likely as not that the Veteran’s Military Sexual Trauma stressor occurred and has resulted in her current PTSD symptoms. Id. at 9. In an April 2017Addendum Opinion, the February 2017 PTSD examiner identified three markers to support his finding of PTSD based on an in-service personal assault and concluded that due to the inconsistencies in the record and in Veteran's report over the years, it is impossible to determine whether these markers justify a finding of a Military Sexual Trauma event while in service. As such, this examiner is unable to make a specific determination without resorting to speculation. See April 5, 2017 Addendum Opinion. In this case, the Board finds that an additional examination is warranted, to include due to conflicting evidence of record with regards to the Veteran’s current diagnosis, particularly whether the Veteran is diagnosed with PTSD, an acquired psychiatric disorder and whether she suffered a Military Sexual Trauma event. The RO in April 2017 stated that it was unable to verify the Veteran’s stressors. However, the Veteran testified at her Board Hearing she was assaulted by Turkish men in the shower when stationed in Turkey. The Board highlights this alleged assault in Turkey, particularly because the Veteran has submitted corroborating lay evidence from a fellow soldier regarding this event. See October 11, 2011 correspondence (J.L., MSgt. USAF). The Board is also cognizant that the Veteran testified at her November 2020 Board Hearing that she was sexually assaulted (raped) at the Beale Air Force Base in California. See Board Hearing transcript, pg. 7. In this case, the Board finds that the new examiner should address whether these instances, support the criteria for a diagnosis of PTSD in accordance with the DSM-5 based on MST. If not, the examiner should opine whether the MST is related to any other diagnosed acquired psychiatric disability. Accordingly, this matter is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination by a VA psychiatrist or psychologist (other than the February 10, 2017 VA examiner) to determine the nature and etiology of any diagnosed acquired psychiatric disabilities. The claims folder and a copy of this remand should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report. Following interview of the Veteran and review of the claims folder, the examiner is requested to provide opinion on the following: (a) If the examiner finds that the Veteran meets the criteria for a PTSD diagnosis in accordance with the DMS-5, he/she should specifically identify which stressors are linked to the PTSD diagnosis, including any stressors prior to or after service. If the stressor involves a MST event, the examiner should provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any behavior changes were demonstrated in service or shortly thereafter and, if so, whether such changes may be indicative of a personal assault having been committed upon the Veteran in service. (*Markers) Note: The examiner's attention is directed Military personnel records show that the Veteran’s duty performance was exceptional until approximately June 1976 when there was a marked decrease in her performance both on and off duty that reflected poorly on the military. See February 28, 1977 Supervisor Evaluation. The examiner is also directed to the Veteran's testimony that she was assaulted in the shower when she was stationed in Turkey. See November 17, 2020 Board Hearing transcript, pg. 7; See also October 2011 lay correspondence from fellow soldier re: account of the Veteran’s experiences at the Incirlik, AB, Turkey. (Document type, Third Party Correspondence, Receipt Date, November 18, 2011). The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. (b) If the examiner finds that the Veteran does not meet the criteria for a PTSD diagnosis, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has an acquired psychiatric disorder in accordance with the DSM-5 diagnostic criteria that is related to events in service as described by the Veteran. The basis for each opinion is to be fully explained with a complete discussion of the pertinent lay and medical evidence of record and sound medical principles, including the use of any medical literature or studies, which may reasonably explain the medical analysis in the study of this case. Note: If the examiner is unable to provide any required opinion, he/she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, Associate 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.