Citation Nr: 21021412 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-09 073 DATE: April 12, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The most probative evidence demonstrates that the Veteran’s PTSD is related to an in-service personal assault. CONCLUSION OF LAW The criteria for service connection for PTSD have been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1971 to April 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) regional office. In March 2020, the Veteran testified at a hearing before a Veterans Law Judge. In May 2020, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development and it has since returned for further appellate review. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor occurred; and, (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). Lay testimony alone can establish the occurrence of the claimed in-service stressor in certain circumstances, which include: when PTSD is diagnosed during service and the claimed stressor is related to that service, when the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, when the stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and certain other conditions are met, and when the veteran was a prisoner-of-war and the claimed stressor is related to that prisoner-of-war experience. Id. In other cases, the claimed stressor must be corroborated by credible supporting evidence. In addition, there are special evidentiary procedures for PTSD claims based on personal assault. Patton v. West, 12 Vet. App. 272, 278 (1999). In personal assault cases, 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, 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 contends that he has an acquired psychiatric disorder that was caused by his active duty service. The Veteran has a current acquired psychiatric disorder. For example, at his September 2020 VA examination he was diagnosed with PTSD. The remaining question is whether the current acquired psychiatric disorder is related to service. Considering the in-service stressors, the Veteran reported that while at a rifle range in August, October, or November 1971, he saw a recruit’s rifle go off and hit another recruit. See May 2010, July 2015 Statement in Support of Claim for Service Connection for PTSD, see also February 2017 Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault, see also March 2020 Hearing Tr. at 3-5. The Veteran also reported that in November or December 1971, he saw a recruit catch spinal meningitis and die. Id. The Veteran further reported that another recruit caught the spinal meningitis resulting in the Veteran and others being placed in quarantine for 3 weeks. Id. The Veteran also reported that in 1971 a drill sergeant made him stand in the middle of the platoon to perform pushups and other servicemembers began throwing rocks at him, putting mud on his face, and attacking him. See September 2020 VA Examination Report, March 2021 Substantive Brief. Service personnel records reflect that the Veteran began to have decreased work performance in January 1972. In the month of January 1972, the Veteran failed to obey orders twice, and then his list of offenses and punishments from that period continued until he was discharge in 1973. The Veteran was AWOL in April 1972, and confined in January 1973. His proficiency and conduct marks deteriorated around July 1972. In April 1973, it was recommended that the Veteran be discharged by reason of unfitness for frequent involvement of a discreditable nature with military authorities. The Veteran was separated under honorable conditions in April 1973. Upon review, the Board finds that there is sufficient documentation to corroborate the Veteran’s assertion that he experienced a personal assault during active duty. See 38 C.F.R. § 3.304(f)(5). The Veteran reports a personal assault by other servicemembers when a drill sergeant made him do pushups around December 1971, and the record shows evidence of a change in the Veteran’s behavior beginning in January 1972. The Veteran’s behavior from that point forward deteriorated, included disobeying orders, AWOL, confinement, and deterioration in work performance subsequently leading to a discharge for unfitness. In relation to a link between the Veteran’s current symptomatology and in-service stressor, the Veteran submitted a September 2015 private medical opinion by Dr. R.B, a psychologist. In the opinion, Dr. R.B. noted that the Veteran had seen a fellow Marine getting shot. Dr. R.B. noted that this stressor, along with others, are supportive of a nexus for the trauma related symptoms of the Veteran who was young and away from home and other familiar places. Dr. R.B. noted that the Veteran was threatened with an Article 15 and developed strong distrust leading to behavioral problems. Dr. R.B. noted that the Veteran has not been the same since he witnessed the accidental shooting of the Marine. Dr. R.B. explained that this episode alone played a significant role in establishing the nexus of the Veteran’s delayed onset symptoms of PTSD. The Veteran presented for a VA examination in September 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the claimed acquired psychiatric condition, represented by the DSM-5 diagnosis of PTSD, was at least as likely as not related to an in-service injury, event, or disease. In support of this conclusion, the examiner explained that in-service markers reasonably substantiate the in-service personal assault in 1971. The examiner pointed to a June 1972 when the Veteran was seen for general malaise. The examiner noted that the Veteran was counseled in November 1972 for previous involvement of discernable nature and undesirable discharge by reason of unfitness due to frequent involvement with military authorities. The examiner noted that the Veteran was disciplined under Article 15 for insubordination in January 1973. The examiner also noted that a September 2015 mental examination by Dr. R.B. appeared to be reasonably consistent with the examiner’s findings. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. For example, the Veteran’s service personnel records showed behavioral changes after the Veteran’s reported stressors. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. Based on the foregoing, the Board resolves reasonable doubt in the Veteran’s favor and find that the evidence supports finding entitlement to service connection for PTSD. As noted, the personnel records reflect that the Veteran’s behavior appears to have changed after the onset of the reported personal assault. The record further supports that the Veteran’s behavior continued to deteriorate leading to a period of AWOL, confinement, and discharge by reason of unfitness for frequent involvement of a discreditable nature with military authorities. The Board assigns significant probative weight to the VA medical opinion as it was made by a medical professional, is supported by the evidence of record, and includes a reasoned explanation for the conclusions reached. For the above reasons, the preponderance of the evidence supports the claim and service connection for PTSD is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.