Citation Nr: 21028978 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-46 906 DATE: May 12, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include mood disorder, personality disorder, adjustment disorder, and posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT The evidence of record is in relative equipoise as to whether the Veteran's acquired psychiatric disorder is related to active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include mood disorder, personality disorder, adjustment disorder, and PTSD, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1979 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 notification letter of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2019. The issues of entitlement to service connection for an acquired psychiatric disability was denied. The Veteran appealed the December 2019 decision to the Court of Appeals for Veterans Claims (CAVC). In an October 2020 Joint Motion for Remand (JMR), the CAVC vacated and remanded the December 2019 Board decision. Specifically, the CAVC noted, In October 2016, Appellant submitted a buddy statement in support of his claim, reporting that he was an Army medic and in 1981, he witnessed Appellant coming into the medical tent crying and saying he was sexually assaulted in his barracks that morning. [Record (R.) at 9419, (9419-9421)]. In June 2017, a registered nurse submitted a statement indicating that she started seeing Appellant in November 1981. [R. at 9302, (9302-9304), June 2017, Statement]. She reported Appellant was very nervous, anxious, and embarrassed as a result of suffering from sexual trauma in the military. The Board discounted these lay statements because they were based upon statements the Board has found not to be credible". [R. at 16, (1-17)]. However, review of the statements reveals they are both based upon what the individuals actually witnessed themselves. [R. at 9302, 9419]. Remand is therefore warranted for the Board to provide adequate reasons or bases addressing these two lay statements and any effect they may have on Appellant's claims. As such, the Board will proceed with the merits of the appeal and address the lay statements. The Veteran claims he has a psychiatric disability related to military sexual trauma (MST). Specifically, he alleges he was sexually assaulted twice by soldiers in the Army. For the reasons discussed below, the Board finds the evidence is in relative equipoise and service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the condition in accordance with the provisions of 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. 38 C.F.R. § 3.304(f). In PTSD claims that are not combat-related, do not pertain to the fear of hostile military or terrorist activity, nor related to a Veteran's status as a prisoner of war, lay testimony alone is not sufficient to establish that a stressor occurred; it must be corroborated by "credible supporting evidence." 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128, 142 (1997). For certain chronic diseases, such as psychosis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The enumerated diseases include psychoses, but do not include PTSD or any other psychiatric or mental disorder that has been diagnosed in this case. As such, there is no presumption of service connection for any of the conditions at issue. See 38 C.F.R. § 3.384. If a posttraumatic stress disorder 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. 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. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304 (f)(1)(5). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the evidence of record, service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for a psychiatric disability. An October 1981 separation examination specifically noted no psychiatric disease found at that time. In the report of medical history, the Veteran specifically checked no to past or present depression or nervous trouble. The Veteran underwent a mental status evaluation. He was found to have normal behavior, fully oriented, unremarkable mood or affect, clear thinking process, normal thought content, and good memory. Military personnel records noted an August 1980 suspension of check cashing privileges due to dishonored checks. There was a February 1981 letter of reprimand for operating a military vehicle without authority. In September 1981 the Veteran violated military rules when he used disrespectful language to a commissioned officer, and he failed to go to his prescribed appointed place of duty. Post-service, in August 1984 the Veteran wrote a letter to the U.S. President in an attempt to upgrade his discharge to honorable. He specifically noted he did not serve his full term because he was every disappointed with Fort Benning Georgia. He did not like his unairconditioned room, his assigned unit (ammo), and his sergeant (Sgt.) would not sign a form so that he could attend night GED classes. He was disappointed with his unit because they never tried to improve themselves, so he started smoking pot. There were no preachers on Sundays, and he was angry with his Sgt. for stopping his orders to go to Germany. In July 1985, the Veteran's mother, D.D., wrote a letter requesting a discharge change to honorable, on behalf of her son because he had changed. In a November 2006 statement in support of the Veteran's claim, W.O., M.D., indicated the Veteran is under his care for a psychiatric condition. In a statement submitted in December 2011, the Veteran reported the first night at his permanent duty location in November 1980, three men with hoods over their heads came into his room. Two held him down while the third one raped him. They told him they would come back if he said anything. The next day he went to sick call to report the assault. He was examined and fluid samples were taken but no mental health staff was present at the time. He went back to sick call a few times after that but never called to see the mental health staff due to shame. Two months later he was raped again, and he wanted to get out of the military. An August 2012 VA treatment record noted a PTSD diagnosis. An August 2012 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The Veteran did not meet the diagnostic criteria for PTSD. The Veteran was diagnosed with malingering and personality disorder with antisocial features. The examiner opined it is less likely than not that the Veteran's claimed PTSD due to MST incurred in or was caused by the claimed in-service injury, event, or illness. The opinion was based on the fact that the alleged assaults have no supporting documents in the C-file and the Veteran did not report an assault until November 2011 but failed to mention it was sexual. The first report of MST occurred 31 years after 1980 while the Veteran was trying to keep his unemployment benefits. A psychological test was completed during the VA examination and the testing summary indicated the Veteran "was not being forthright in his health symptoms and also likely feigned the level of intelligence, neurological, and cognitive symptoms." He scored in the level of mental retardation which is highly inconsistent of someone with a bachelor's degree and past pursuits of a pre-med or pre-law degree. The Veteran has 3 assessments, where health professionals indicated he is likely malingering his mental health. The examiner noted the Veteran has sought out treatment through multiple VA programs to establish mental distraught for secondary gain, i.e. compensation. The Veteran has been seen by the VA since May 2005 for treatment and each encounter focused on non-military situational stressors with no mention of MST. The examiner further opined the Veteran's personality disorder contributed to his malingering due to the secondary gain of the C&P process. The personality disorder is more likely related to a life full of situational stressors and his maladaptive attempts to cope with these non-military related stressors. A November 2012 letter from C.V., M.D., indicated the Veteran was diagnosed with PTSD, acute on residual, and major depression recurrent with psychosis. A March 2013 discharge application, submitted on the Veteran's behalf from W.O., M.D., indicated the Veteran had a PTSD diagnosis. A July 2014 VA assessment indicated the Veteran suffered from PTSD related to MST. No rationale or explanation for this conclusion was provided. A December 2014 and January 2016 statement from D.D., R.N., indicated the Veteran came to her for counseling in November 1981 after he was sexually assaulted in the military. After counseling, the Veteran went 25 years before contacting D.D. again. An April 2015 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The Veteran did not meet the diagnostic criteria for PTSD. He was diagnosed with unspecified personality disorder. The examiner opined it is less likely than not that any psychological disturbance reported by the Veteran incurred in or was the result of his claim stressor. He opined the Veteran does not have a diagnosis of PTSD based on MST based on review of the PTSD examination on 8/8/2012. The examiner noted that during psychological testing with Dr. D. in 2014, the doctor expressed concerns about the validity of the Veteran's self-report based on testing scores and conflicting statements. A diagnosis of malingering was well supported but not rendered in this case due to the potential for unintended, longstanding, negative outcomes for an individual who receives the diagnosis. The examiner noted the evidence supports a diagnosis of personality disorder which has led to the current diagnosis. A statement from D.D., was received in May 2015. She alleges she was a witness during the Veteran's April 2015 VA examination and the examiner failed to mention the Veteran has been sexually assaulted two times; he stole a vehicle, cursed out his military command, and smoked pot in an attempt to get out of service. In the October 2015 Form 9, the Veteran indicated he completed a VA PTSD in-patient program in 2012. He says a VA social worker, K.G., indicated his PTSD was due to MST. He also alleges the VA examination reflected information he did not say, and the VA did not recognize the nurse who provided care for MST after he left the military. In a June 2013 letter, K.G., LCSW, indicated the Veteran was being treated for a personality disorder with a secondary diagnosis of PTSD. A January 2016 statement from A.P., indicated the Veteran was sexually assaulted twice and ordered not to say anything. His father drove to the Fort to pick him up since his life had been threatened. Once returning home he was counseled by the church. An October 2016 statement from R.F., a veteran, indicated he knew the Veteran in 1981. While serving in the army with the Veteran he remembers the Veteran coming into a clinic one morning, crying and complaining of a sexual assault that morning in his barracks. In a June 2017 statement from D.O., R.N., she reported she started treating the Veteran in 1981 and she described him as broken from the MST he experienced in the military. The Veteran told her the army did not believe he was sexually assaulted, so he did not mention it when he was processed out of the service. In July 2017 the Veteran's mom, D.D., provided a statement. She indicated the Veteran's father called her to report the Veteran had been sexually assaulted by two men while in service. In November 2020 the Veteran submitted a private opinion from B.S.C., Psy.D. The Veteran was diagnosed with PTSD, persistent depressive disorder, and alcohol use disorder. The psychologist opined it is at least as likely as not that the Veteran's current PTSD and depression diagnoses and symptoms are due to MST and the presence of invalid test responding, delay between event and report, and personality disorder diagnosis. It was noted there is evidence to confirm that the Veteran suffers from PTSD and depression due to MST and there is no evidence of malingering. The psychologist based the opinion on markers which included the Veteran's statements and two buddy statements verifying his statement, the Veteran's two promotions and subsequent "unsuitable" behavior within 6 months later, substance abuse, vocational problems, and medical records confirming the PTSD is directly related to MST. In January 2021 the Veteran submitted a private opinion from J.M., B.S.N., R.N. who is also a sexual assault nurse examiner. It was opined, based on the substantial marker evidence of sexual trauma, as well as the signs and symptoms of PTSD and rape trauma syndrome, it is at least as likely as not that the Veteran was sexually assaulted as he claims, while in the military. The report indicated after promotions in June 1980 and February 1981, the markers included multiple reprimands and disciplinary problems resulting in the Veteran's discharge. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the evidence is at least in equipoise as to whether the Veteran's psychiatric disability is related to service. The Board acknowledges there is an equal balance of positive and negative medical evidence in the claims file. Both the April 2015 VA examiner and November 2020 private psychologist provided medical opinions supported by rationales relying on evidence. As such, considering the equal balance of positive and negative evidence, the Board finds the evidence of record is in relative equipoise as to whether the Veteran's acquired psychiatric disorders are related to active duty service. Additionally, the Veteran has provided credible supporting statements from R.F. and D.D., R.N., corroborating the MST allegations. When cases such as this contain an approximate balance of positive and negative evidence regarding the matter at issue, the Board must resolve reasonable doubt in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Accordingly, the credible supporting statements coupled with the private opinions support a grant of service connection. Upon resolution of all reasonable doubt in favor of the Veteran, the Board determines that the evidence of record is in relative equipoise as to whether his current acquired psychiatric disorders are related to active duty service. As such, the benefit of the doubt rule applies. Id. at 58. Therefore, the Veteran's claim of service connection for an acquired psychiatric disorder is granted. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jackman, Associate Counsel 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.