Citation Nr: 21023576 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-41 575 DATE: April 21, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as due to military sexual trauma (MST), is granted. FINDING OF FACT The Veteran’s PTSD is related to an in-service MST. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for PTSD, to include as due to MST, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1980 to September 1980 and from March 1981 to December 1985. His claim comes before the Board of Veterans' Appeals (Board) on appeal of a June 2013 Department of Veterans Affairs (VA) rating decision. In January 2021, the Veteran testified in support of this appeal during a virtual hearing held before the undersigned Veterans Law Judge. Entitlement to service connection for PTSD, to include as due to MST The Veteran seeks service connection for PTSD attributable to MST. According to his written statements and hearing testimony, he was raped by two servicemen in Germany in 1984. He claims it occurred in the morning; he opened his door to knocking, after which the servicemen, one holding a knife, knocked him down, held his mouth shut, and told him not to make a sound while they sexually abused him. He did not report this incident during service as they threatened that they would come back and kill him. Later, he told A.S., his former spouse, and his mother. He asserts that he planned to reenlist after his first term of service, but after the incident, he changed. He was transferred from Germany to Kentucky and living off base when he had flashbacks of the rape and decided not to show up to work for a couple of days. He told his sergeant, who came to his door looking for him, that he wanted to get out of the service. The sergeant referred him to someone, possibly a psychiatrist, and in 1985 until the end of the year when he got out of service, he received mental health treatment, including medication, on base. He does not know why records of the referral and treatment are not in the file. Once he was discharged from service, he had difficulty maintaining good jobs, got divorced, had no kids or other relationships and experienced mental health symptoms. In 2012, he began getting mental health treatment at VA and is now in receipt of disability benefits from the Social Security Administration based on anxiety and depression. The evidence supports this claim. Service connection may be granted for PTSD if the record includes medical evidence diagnosing PTSD pursuant to 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and a claimed in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). PTSD based on personal assault refers broadly to stressor events involving harm caused by a person not considered part of an enemy force. 38 C.F.R. § 3.304(f)(5). VA acknowledges the unique problems veterans face in documenting their claims because of the sensitive and extremely personal nature of assault. To compensate for difficulties in reporting and producing evidence to support a stressor’s occurrence, evidence from sources other than a veteran's service records, such as statements from family members, may corroborate an account of a stressor incident. 38 C.F.R. § 3.304(f)(5). The absence of in-service reports or treatments cannot be considered "negative evidence" in personal assault cases. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Unlike in other PTSD claims, an after-the-fact medical opinion can serve as credible supporting evidence of a stressor in PTSD personal assault claims. See Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). Here, post-service treatment records dated since 2012 include PTSD diagnoses. In July 2012, a psychologist diagnosed this condition based, in part, on the Veteran’s report of a 1984 MST. In August 2012, the same psychologist specifically linked the PTSD to this in-service stressor by finding that the 1984 MST was causing symptoms consistent with a PTSD diagnosis. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for purpose of treatment). On April 2015, A.S., the Veteran’s former spouse, verified the reported stressor by submitting a written statement indicating that, while serving in Germany from 1982 to 1984, the Veteran told her he was sexually abused by two servicemen he did not know. There is no evidence of record to suggest A.S.’s credibility should be questioned here. Both A.S. and the Veteran’s mom, who submitted a written statement in February 2021, confirmed that the Veteran returned home from service a different man, not the very happy person he was when he left for service. In addition, A.S., who was married to the Veteran during service, stated that the Veteran was not able to perform his marital duties, was having problems coping and the Veteran decided to divorce. A.S. stated that the Veteran told her that it was because of the sexual trauma and the PTSD. As discussed above, there is a reduced evidentiary burden concerning the confirmation of PTSD stressors based upon personal assaults. The Veteran reported being subjected to sexual trauma from servicemembers who threatened to kill him if he were to have reported the assault. Accordingly, military personnel records and service treatment records do not verify the Veteran's account of MST. However, where an alleged sexual assault, like most in-service sexual assaults, is not reported, the absence of service records documenting the alleged assault is not pertinent evidence that the assault did not occur. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013). In light of the above medical opinion and lay evidence, the Veteran’s PTSD has been reasonably linked to an in-service MST, thus, the evidence is sufficient to satisfy the criteria for entitlement to service connection for PTSD secondary to MST. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. N. 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.