Citation Nr: 21020876 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-24 703A DATE: April 8, 2021 ORDER Service connection for a psychiatric disorder, to include major depressive disorder, is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding of PTSD. 2. The Veteran’s current major depressive disorder is of service origin. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include major depressive disorder, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from May 1968 to December 1969. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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). VA amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing in-service stressors. 75 Fed. Reg. 39843 (July 13, 2010). The amendments, which took effect July 13, 2010, redesignated current paragraphs (f)(3) and (f)(4) of 38 C.F.R. § 3.304(f) as paragraphs (f)(4) and (f)(5), and added a new paragraph (f)(3) regarding a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity. The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's fear of hostile military or terrorist activity. Although the Veteran alleges an assault occurred and she was fearful, the amended provisions do not apply to her claim. The plain meaning of 38 C.F.R. § 3.304(f)(3) is that it applies to fear of hostile military or terrorist activities, not fear of other service members, to include any harassment or assaults. Acevedo v. Shinseki, 25 Vet. App. 286 (2012). Under the revised criteria, the specific provision governing PTSD claims based on personal assault has been renumbered from 38 C.F.R. § 3.304 (f)(4) to 38 C.F.R. § 3.304(f)(5). However, the substance of that provision has not changed. The regulations governing PTSD provide that where a claim is based on an 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) The Veteran maintains that she currently has PTSD as a result of being sexually assaulted by a fellow female serviceperson. As to the claim of service connection for PTSD, the Board notes that in conjunction with her claim, the Veteran was afforded a VA examination in February 2014 which resulted in diagnoses of an unspecified depressive disorder and a borderline personality disorder being rendered. The examiner specifically indicated that the Veteran did not meet the criteria for a diagnosis of PTSD. Treatment records associated with the file reveal numerous diagnoses of major depressive disorder and R/O PTSD but no definitive diagnosis of PTSD. In a March 2016 letter, the Veteran’s VA social worker indicated that the Veteran was diagnosed with PTSD and recurrent major depressive disorder with psychotic features; however, the treatment records associated with the file do not support the statement of a diagnosis of PTSD as the Veteran’s was diagnosed as only having R/O PTSD. . In an April 2016 statement in support of claim, the Veteran’s treating VA physician indicated that she had been diagnosed with PTSD, major depressive disorder with psychotic features, and dissociative disorder. However, treatment records associated with the file again do not support a definitive diagnosis of PTSD, only R/O PTSD. Given the foregoing, the preponderance of the evidence is against the claim of service connection for PTSD as the Veteran has not been formally diagnosed with PTSD. However, the Veteran has been diagnosed with major depressive disorder on numerous occasions, including by both her treating VA physician and her treating social worker, with numerous diagnoses of major depressive disorder being rendered in the accompanying treatment records. Moreover, while the 2014 VA examiner indicated that the Veteran’s diagnosed psychiatric disorders were not related to her period of service, it was acknowledged that an MST had occurred. In addition, the Veteran’s social worker indicated that the Veteran had disclosed in detail the story of her military sexual trauma. She stated that the Veteran had reported that her main behavioral reaction to the incident was that she became quite promiscuous, largely for fear of being considered to be lesbian. She noted that the Veteran never told anyone about the incident at the time out of shame and embarrassment. She later told a few people (psychiatrists, ex-husband) who were now deceased (other than her mental health providers). The social worker indicated that it was her opinion that the incident and subsequent behaviors that followed, resulted in PTSD and depressive symptoms. Additionally, it was her opinion that that the MST led to a history of unhealthy relationships with men in which she was hurt and taken advantage of repeatedly. In her April 2016 statement, the Veteran’s treating physician indicated that the Veteran had endured childhood abuse by her stepfather. She also noted that the Veteran had divulged details of the MST over time and admitted to a great deal of shame due to the gender of the perpetrators, feeling that they had labeled her as a lesbian to be targeted. The Veteran explained that she had minimized some of the re-experiencing symptoms she had over the years as it made her relive the shame of the situation. The Veteran also felt that the MST contributed to the dissociative episodes and made her overall more impulsive and promiscuous with men, in order to convince herself that she was in fact not a lesbian. The Veteran’s treating physician noted that she had a complicated psychiatric history but that the MST she had endured negatively shaped the development of her mental health in a significant way affecting her interpersonally, vocationally, physically, and emotionally. The Board finds that there is credible supporting evidence that the Veteran's claimed in-service stressor occurred. She has credibly reported the incidents surrounding her MST on multiple occasions. The incident has also been noted in treatment records and in documents prepared by her treating physician and social worker. The Board further observes that the Veteran attempted to overdose in service, which can be the aftermath of incidents such as those reported by the Veteran. Therefore, the Board will resolve the benefit of the doubt in favor of the Veteran and find that the claimed incident occurred. (Continued on the next page)   As noted above, there is no definitive diagnosis of PTSD; however, the Veteran has been diagnosed on numerous occasions with major depressive disorder. This has been attributed to the Veteran’s MST by both her treating physician and social worker. Although the Board notes that the VA examiner found that the Veteran’s psychiatric disorder was not related to her period of service, the evidence is at least in equipoise as to whether the Veteran’s major depressive disorder is related to her MST. In such a case, the evidence must be resolved in favor of the Veteran. For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that an acquired psychiatric disorder, to include major depressive disorder, is related to service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.