Citation Nr: 21027304 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 18-00 783 DATE: May 5, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran's PTSD is due to in-service stressors. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1978 to December 1978 and from October 1979 to June 1980. In May 2020, the Veteran testified at a Board hearing. The transcript is of record. In July 2020, the Board remanded the case for further development, which is completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for acquired psychiatric condition, to include posttraumatic stress disorder secondary to military sexual assault The Veteran reports that he has PTSD due to military sexual trauma that began in 1979 when his supervisor began making unwanted sexual advances which led to sexual assault. For the following reasons, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' - the so-called "nexus" requirement." Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The requirements for establishing service connection for PTSD are more specific than those for establishing service connection for other psychiatric disabilities. To establish service connection for PTSD, the evidence must satisfy three basic elements: 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). There are special rules with regard to claims for entitlement to service connection for PTSD claimed as a result of in-service personal assaults. 38 C.F.R. § 3.304 (f)(5). These rules allow for evidence from sources other than a veteran's service records to corroborate a stressor. Id. They also provide that evidence of behavior changes following the claimed in-service assault may constitute credible supporting evidence of the stressor. Id. In January 2014 the Veteran attended a VA examination and the examiner concluded that the Veteran did not meet the diagnostic criteria for PTSD pursuant to DSM-5 criteria but did meet the criteria for substance induced mood disorder. The examiner reported that the Veteran was diagnosed with PTSD in 2005 but prior to that he was treated for addiction to poly-substances and denied PTSD or sexual assault. While the examiner did not find that the Veteran met the criteria for a PTSD diagnosis at time of examination, he noted that psychiatric disorders can present different clinical pictures at various points in the course of the illness; thus, conflicting diagnoses may indicate different symptoms being reported to different clinicians at different points of the illness. The examiner acknowledged that the military personnel records reveal a pattern of performance problems to include unauthorized absence in March, April and May 1979 and a late return from pass in December, as well as a February 1980 no show for duty and possession of marijuana but noted that these incidents occurred prior to the alleged sexual assault in June 1980. Additionally, the examiner observed that the Veteran has provided varying accounts of the assault and has a pattern of rendering inconsistent information in the course of his mental health treatment. The Veteran underwent another VA examination in November 2020 via telehealth. The examiner concluded that based on evaluation and review of the medical records the Veteran did not present with psychiatric symptoms meeting the diagnostic criteria of PTSD. The examiner noted that during the examination the Veteran was asked about and denied the presence of each symptom from PTSD criteria B and C and when asked about each symptom from criteria C and E, he only endorsed one symptom from each criterion. The Veteran reported experiencing some of the symptoms in the past but not experiencing these difficulties for approximately the past two years. He also denied the presence of psychiatric symptoms warranting a diagnosis. In contrast, the Veteran's treating psychologist of approximately nine years, Dr. J.Y., provided several statements opining that it is at least as likely as not that the Veteran suffers from PTSD as a result of his experience of military sexual trauma during his military service. Dr. J.Y. reported that based on his years of observing and working with the Veteran as well as review of the evidence of record he has a diagnosis of PTSD, which is a result of military sexual trauma and has had that diagnosis for all the years he has known him. He explained that the Veteran has narrated his traumatic experience which resulted in severe physical and psychological injuries and caused him to turn to illicit substances to cope and that the Veteran's substance addiction is not a separate diagnosis but rather a marker of PTSD. The doctor also clarified that substance abuse alone is insufficient to explain the recurrent symptoms, which are more fully explained and subsumed as part of the PTSD diagnosis. It was explained that PTSD is the only sufficient and complete diagnosis which accounts for the Veteran's consistent debilitating recollections, fears, and negative reactions. Dr. J.Y. noted that during the ten years of being his patient the Veteran has consistently repeated and expanded upon the details of his assault with the same authentic and emotionally distressing reaction that accompanies verbal recollections of such events. He noted that the case history provides evidence of military sexual trauma as there are indirect indications of negative changes in his behavior, demeanor and performance of military duties following the trauma. Additionally, he explained that it is quite common for such accounts to contain indistinct details, partially blocked or avoided aspects, confusion over the order of events and occasional inconsistencies and such inconsistencies and confusions are actually consistent with the real trauma accounts and are not be interpreted as evidence of fabrication. The tendency to inaccurately recall the event is particularly common when the Veteran is being questioned by someone who resembles the same military authority figure who abused him. Thus, he tends to become angry when questioned and is only able to tell his story and symptoms to someone who worked with him for years and passed his difficult test for trustworthiness. Additionally, he loses faith in the diagnostic process quickly when he feels the other person does not believes him; therefore, through no fault of the [VA] examiners, he cannot be expected to give a detailed account and description of symptoms to a stranger who represents military authority and is looking for inconsistencies. Dr. J.Y. also reported that in additional to his numerous psychiatric symptoms, the Veteran experiences extreme episodes of gastrointestinal distress and pain from mouth to anus, which is characteristic of victims of painful oral and anal penetration. He has extreme negative cognitive and emotional reactions to triggered recollections that are consistent with intense fearful and rageful thinking and feeling and often contemplates taking revenge on his attackers, none of which are less intense or painful in the many years since the attack. The Veteran is extremely mistrustful of others, often has to defend himself against painful paranoid thoughts and avoids contact with others, even those who try to help him. Thus, leaving him totally dysfunctional both occupationally and socially. Likewise, Dr. J.P., the attending psychiatrist who saw the Veteran for three session in 2005 also reported that the Veteran has depression and PTSD related to military sexual trauma and presented with nightmares, flashback, daily intrusive thoughts, decreased sleep, frequent crying spells, and suicidal ideation among other symptoms. Dr. J.P. cited the medical records revealing that the Veteran was treated at the PTSD clinic for evaluation of his military sexual trauma. He noted that the Veteran did not want to address his military trauma but after struggling with suicide ideations he began outpatient psychiatric treatment. Dr. J.P. reported that the Veteran has significant difficulty, to include episodes of depression due to his military sexual trauma resulting in the loss of jobs and relationships. The Board finds the opinions of Dr. J.Y. and J.P. persuasive as they contain clear conclusions, supporting data and a reasoned medical explanation that also reconcile inconsistent evidence. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While both VA examiners found no diagnosis they failed to reconcile their findings with the post-service mental health records which consistently report diagnoses of and treatment for PTSD, depressive disorder and substance abuse, which his treating mental health professionals associate with military sexual trauma. The Board notes that the evidence includes Social Security Administration (SSA) records granting disability effective October 2005 for anxiety disorders, to include PTSD, which he alleged began in 1979. While SSA records are not controlling for VA determinations, they may be pertinent to VA claims. Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In this case, the Board finds the SSA finding of a medical determinable impairment of PTSD to be relevant and affords the SSA findings probative weight. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). The Veteran provided several statements as well as testimony in support of his claim. The Veteran reported that on or about November or December of 1979, he was a battalion supply clerk. During this time his first sergeant helped him with promotion paperwork and took an interest in him, which escalated to repeated unwanted sexual advances and assault. The Veteran explained that he did not report the assaults as his first sergeant had the ability to make life very difficult for him, so he began self-medicating and his performance and behavior quickly deteriorated. Consistent with his report the Veteran's service records do not contain any complaints of an assault. The Board notes that due to the sensitive nature of such assaults, they are typically not reported. As such, the law provides that if a PTSD claim is based on an in-service personal assault, evidence from sources other than a Veteran's service records may corroborate the Veteran's account of the stressor incident. Gallegos v. Peake, 22 Vet. App. 329 (2008); 38 C.F.R. § 3.304 (f)(5). Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these alternate sources. Examples of behavioral changes that may constitute credible evidence of a stressor include, but are not limited to,: request for 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 behavioral changes. 38 C.F.R. § 3.304 (f)(5). The service records contain credible supporting evidence that the in-service stressor identified by the Veteran occurred. The Veteran was counseled several times for poor performance and failing to maintain a clean room. In February 1980 the Veteran failed to arrive at morning formation and was found to be in possession of marijuana. The counseling sheet indicated hope that the subsequent punishment would correct "what is becoming a bad habit in an otherwise excellent soldier's performance", indicating a recent degradation in the Veteran's performance. See Military Personnel Record March 2015. However, from May 5, 1980 to May 8, 1980 the Veteran was absent without leave (AWOL) and based on these incidents he was referred for a mental hygiene consultation. The clinician concluded the Veteran did not have any psychiatric disorder that would prevent administrative action as he was rational and oriented with no indication of psychosis or severe neurosis. The Veteran received a recommendation for expeditious discharge for poor performance, to include difficulties working with peers and superiors, failure to return for duty on time on three occasions, and lack of emotional control as he burst into tears several times when confronted with physical stress. The Veteran's degradation of performance in service and continued struggles socially and occupationally, which are well documented by the record constitute credible evidence of his stressor pursuant to 38 C.F.R. § 3.304 (f)(5). Furthermore, the Veteran has consistently maintained that he suffered sexual assault in service throughout his extensive mental health treatment which includes emergency department visits, in-patient stays, and outpatient treatment. The Board finds the Veteran's statements during the course of seeking medical treatment to be particularly probative. Fed. R. Evid. 803 (4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons")). Additionally, the VA treatment records frequently describe the Veteran's behavior as aggressive and threatening, which is consistent with Dr. J.Y.'s explanation of the Veteran's symptoms of mistrust and difficulty with individuals who resemble military authority. As such, the Board finds that the evidence establishes that Veteran has a diagnosis of PTSD due to military sexual trauma. He consistently asserted that a sexual assault occurred in service, which is supported by the service records revealing a change in behavior resulting in an expeditious discharge, as well as two persuasive medical opinions from his treating mental health professionals linking his PTSD to military sexual trauma. Accordingly, the claim for entitlement to service connection for PTSD due to military sexual trauma is granted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.