Citation Nr: 21027938 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-56 972 DATE: May 7, 2021 ORDER The claim of service connection for an acquired psychiatric disorder, to include anxiety disorder and major recurrent depression, is granted. FINDING OF FACT An acquired psychiatric disorder to include anxiety disorder and major recurrent depression is the result of active service. CONCLUSION OF LAW The criteria for service connection for acquired psychiatric disorder to include anxiety disorder and major recurrent depression are met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force on active service from March 1983 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for posttraumatic stress disorder (PTSD), anxiety, and depression. This claim had been continuously prosecuted since the filing of a December 2011 claim. Although the RO considered each potentially diagnosed psychiatric disorder as a separately claimed disability, the Board finds it appropriate to consider them all as part of a single claim. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In April 2021, the Veteran testified before the undersigned Veterans Law Judge by videoconference. The appeal is being granted prior to association of the transcript with the file. However, in light of the favorable outcome, the Veteran is not prejudiced. The hearing transcript will be associated with the file at a later date. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the 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). 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 his or her 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). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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 disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). In the January 2014 rating decision and the August 2017 statement of the case (SOC), the RO found that the evidence of record reflected a current psychiatric disability, variously diagnosed as depression, anxiety, and PTSD. An October 2013 VA examiner diagnosed an anxiety disorder, not otherwise specified, and opined that such was at least as likely as not caused by the Veteran's reported sexual harassment in service. The RO rejected this finding, stating that there was insufficient evidence of the claimed personal trauma stressors, and corroboration of the allegations was required. In the absence of an in-service stressor or trauma, service connection was not warranted. The Board, however, finds that the claimed in-service stressful events, involving repeated sexual harassment by various supervisors, did in fact occur, as established by the Veteran's own competent and credible lay statements, and corroborating witness statements. The Veteran specifically alleged that two sergeants had, independently, subjected her to sexual harassment, through propositions and inappropriate touching of her body and clothing. Her husband, who knew and served with both men, testified in person and in an April 2013 statement that he witnessed such behavior from one of the men, her Basic Training instructor, with regard to other female recruits. He also knew of similar behavior from the other sergeant, who he reported at the April 2021 hearing had been discharged for similar misconduct. Moreover, the Veteran, her husband, and other family members have competently and credibly described behavioral changes following military service which tend to support her allegations. Her repeated problems with supervisors, including the triggering of an extreme reaction when a man hugged her innocently, is one example. Her need to avoid used clothing is another. Finally, service treatment records show the Veteran reported numerous times from 1983 to 1987 with complaints of chest pain, left shoulder pain and shortness of breath. Yet, no heart, chest, or left shoulder problems were found. In March 1983, she presented as tearful and anxious and was assessed with mild anxiety reaction. In May 1987, she was diagnosed with anxiety and non-cardiac chest wall pain. In addition, service personnel records are consistent with the assignments and duties she reports when subjected to the harassment. Therefore, the Board finds that the probative lay and medical evidence of record shows that each element required for service connection has been met. The Veteran is currently diagnosed with and treated for an acquired psychiatric disorder to include anxiety disorder that has been found to be the causal result of established, in-service sexual harassment and assault. Accordingly, service connection for an acquired psychiatric disorder to include anxiety disorder and recurrent major depression as the result of in-service sexual harassment and assault is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.