Citation Nr: 21025562 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-25 679 DATE: April 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depression due to military sexual trauma (MST), is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Veteran’s psychiatric disorders, to include PTSD and major depression, are etiologically related to the sexual assault he experienced during his active duty military service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include PTSD and major depression due to MST, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1990 to August 1992. The Veteran is seeking entitlement to service connection for a psychiatric disorder, to include PTSD and MDD due to MST. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred, unless the stressor is related to a Veteran’s fear of hostile military or terrorist activity. 38 C.F.R. § 3.304 (f). VA regulations provide that, 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. 38 C.F.R. § 3.304 (f)(5). The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that 38 C.F.R. § 3.304 (f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting “medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated.” See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims (Court) erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that something more than medical nexus evidence is required for ‘credible supporting evidence’ in personal-assault cases). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of their current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he was a victim of military sexual trauma during his active duty service abroad. In lay statements and testimony before the undersigned he alleges that he was sexually assaulted by two fellow service-members in his barracks while stationed at Camp Case in South Korea in the fall of 1990. He claims that he was warned by the fellow service-members to not report the incident threatening further bodily harm. The Veteran indicated he felt a deep sense of shame regarding the incident and did not discuss it with anyone, including his wife, for many years. The Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of any acquired psychiatric symptoms. He was seen repeatedly for problems involving his feet, which led to his separation from service in August 1992. The Veteran was afforded a VA PTSD examination in October 2017 and the examiner diagnosed the Veteran with PTSD and major depression. The Veteran recounted the instance of MST noting that two individuals grabbed him, threatened bodily harm and was sexually assaulted. The Veteran recounted being afraid and not telling anyone but generally losing trust in others following the incident. The examiner noted that the Veteran’s onset of PTSD and major depression symptoms appear to have started after the MST event. The examiner also noted that the Veteran’s symptoms worsened following an exacerbation of these conditions in approximately 2009 when the Veteran reported suicidal ideation, was seen in Urgent Care with a positive PTSD screen and hospitalized. See August 2009 Providence VAMC treatment records. At the time of the examination, the Veteran was receiving ongoing treatment for these disorders. The examiner opined that the Veteran’s depression was secondary to and related to his PTSD diagnosis. The examiner noted that the Veteran’s report of MST has been consistent throughout the Veteran’s records over various providers and contexts. The examiner opined that it is at least as likely as not that the MST stressor event described by the Veteran is supported and consistent with in-service marker evidence, to include drinking to self-medicate See October 2017 VA examination report. The Veteran is competent to report a history of military sexual trauma and psychiatric symptoms that began in service. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno, 6 Vet. App. at 470. The mere fact that his assertions are not supported by contemporaneous clinical evidence or does not render them inherently not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The Veteran has competently, credibly and consistently reported that he was sexually assaulted by fellow officers during active service and that he was afraid to report the incident for fear of retaliatory action and embarrassment. It appears that he did not feel comfortable discussing the incident with medical providers or even his spouse until many years after service when he began receiving emergency mental health treatment due to suicidal ideation in approximately 2009. The Board finds that the Veteran’s account of the onset of his psychiatric symptoms to be competent and credible. The October 2017 VA examiner also noted the Veteran’s consistency and attributed his current psychiatric conditions to the MST event described by the Veteran. (Continued on the next page)   Given the competent and credible lay statements from the Veteran and his psychotherapist, his current diagnoses of PTSD and major depressive disorder; and resolving all reasonable doubt in the Veteran’s favor; the Board finds that service connection for and acquired psychiatric disorder, to include PTSD and major depressive disorder due to MST, is warranted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.