Citation Nr: 21029584 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 18-17 936 DATE: May 14, 2021 ORDER Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and anxiety as due to military sexual trauma (MST), is granted. FINDING OF FACT The Veteran has been diagnosed with PTSD based on an established, in-service stressor. CONCLUSION OF LAW The criteria to establish entitlement to service connection for a psychiatric disability, to include PTSD, depression, and anxiety as due to MST, have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Navy from January 2013 to May 2014. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In April 2019, the Board denied the Veteran's service connection claim for a psychiatric disability, to include PTSD, depression, and anxiety due to MST. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (the Court). In July 2020, the Court vacated the Board's April 2019 denial and remanded the matter for further consideration. In its decision, the Court instructed that a new VA opinion must be obtained, if the Board determines that the Veteran's reports of psychiatric symptoms are credible. However, the Board finds that remanded is not warranted in light of the grant of service connection. 1. Entitlement to service connection for a psychiatric disability, to include PTSD, depression, and anxiety as due to MST 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; 38 C.F.R. § 3.303(a). Entitlement to 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 (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, 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 clear diagnosis of the disorder in accordance with 38 C.F.R. § 4.125(a), (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link established by medical evidence between the current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). 38 C.F.R. § 4.125(a) instructs that all psychiatric diagnoses must conform to the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 38 C.F.R. § 3.304(f). Effective August 4, 2014, the VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by the VA or that were pending before the AOJ on or after August 4, 2014. Id. The VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The AOJ certified the Veteran's appeal to the Board in September 2018, and therefore the use of the DSM-5 is appropriate here. There are several avenues to document an in-service stressor, other than obtaining verification from the Joint Services Records Research Center (JSRRC) or other government records repository. In cases of in-service PTSD diagnosis, combat service, or prisoner of war status, a Veteran's stressor may be verified by lay evidence. 38 C.F.R. § 3.304(f)(1), (2), (4). Lay evidence of personal assault requires appropriate corroboration, and a stressor related to Veteran's fear of hostile military or terrorist activity requires appropriate medical evidence. 38 C.F.R. § 3.304(f)(3), (5). When the Veteran's claimed stressor is not related to combat with the enemy, the Veteran's lay testimony alone is generally insufficient to establish the occurrence of said stressor. 38 C.F.R. § 3.304(f). However, special consideration must be given to claims for service connection for PTSD based on personal trauma as a result of the sensitivity and difficulty in establishing proof of the assault in such claims. Patton v. West, 12 Vet. App. 272 (1999). For VA compensation purposes, personal trauma refers broadly to stressor events involving harm perpetrated by a person who is not considered part of an enemy force. Examples of personal trauma include assault, battery, robbery, mugging, stalking, and harassment. Military sexual trauma (MST) is a subset of personal trauma and refers to sexual harassment, sexual assault, or rape that occurs in a military setting. Medical evidence may be used to corroborate the Veteran's claimed stressor in personal trauma PTSD claims. Further, the Veteran may use evidence other than the service treatment records (STRs) to corroborate an account of the stressor incident. 38 C.F.R. § 3.304 (f)(5). This evidence includes, but is not limited to: medical records, police records, statements from the Veteran's family and friends, and changes in behavior, to include substance abuse, a request for a transfer to another military duty assignment, and unexplained changes in social behavior. This evidence is still subject to a credibility analysis. Menegassi v. Shinseki, 638 C.3d 1379, 1382 (Fed. Cir. 2011). The Veteran asserts that her psychiatric disability, which includes PTSD, depression, and anxiety, stems from being sexually assaulted by a superior officer during active service. The preponderance of the evidence supports the Veteran's claims and demonstrates that the criteria for service connection for a psychiatric disability have been met. With respect to the in-service stressor, the Veteran reported two incidents where she was inappropriately touched by a superior officer. According to the Veteran's reports, the first incident occurred in a dark training auditorium where the officer slapped her buttocks. The second incident occurred at a work bonding event where the officer hooked his arm around her left hip and slid it across her backside, lingering on her buttocks. The Veteran indicated that she reported the officer to the Naval Criminal Investigative Service (NCIS). These statements are consistent with the testimony she provided as a part of a court-martial investigation into her superior officer's behavior. See February 2016 Correspondence, DD Form 457. Furthermore, STRs reveal that the Veteran reported being sexually assaulted and harassed during the course of psychiatric treatment in 2014 and 2015. In early 2014, she indicated that she began experiencing suicidal ideation and depression after reporting the incidents and being ostracized by her coworkers when they found out. She was hospitalized for her symptoms and administrative separation was recommended. Prior to her separation, the Veteran reported that her symptoms increased after participating in official proceedings against the officer. From this evidence, the Board finds that there is adequate evidence to corroborate the Veteran's account of an MST during her active duty service. With regard to a current disability, a treating psychologist expressed his opinion in a letter dated July 29, 2019, that the Veteran suffers from PTSD and dysthymic disorder with persistent anxiety-depression. In support of his conclusion, he indicated that the Veteran initially presented with decompensation secondary to depression and anxiety arising from sexual assault and shunning during active duty service. He noted that the Veteran's presenting symptoms consisted of chronically depressed mood, feelings of helplessness and hopelessness, guilt, and decreased ability to concentrate. He further noted that the Veteran had anxiety manifesting with persistent worry, fear, and decreased ability to concentrate. He also noted that the Veteran's PTSD symptoms included disturbing thought content of the event, re-experiencing the traumatic event via dreams, actions, or feelings, avoiding situations, or enduring them with intense anxiety/fear, and hypervigilance. This determination is highly probative. The psychologist indicated that he has had 21 encounters with the Veteran over a sixteen-month period and that his observations and treatment actively support his diagnoses. He described the Veteran's traumatic experience, her symptoms, and her treatment. Additionally, his conclusion is consistent with records that document psychiatric treatment during active duty service, which included hospitalization for suicidal ideation after the Veteran reported the sexual assaults. Accordingly, the treating psychologist opinion is afforded significant probative weight. Contrary to this opinion, a VA examiner who evaluated the Veteran in June 2016 concluded that the Veteran does not have a PTSD diagnosis that conforms to the DSM-5 criteria or a diagnosis for any other mental condition. The examiner elaborated that the Veteran does not meet the criteria for PTSD. Additionally, the examiner noted that the Veteran reported no longer feeling depressed or anxious and feeling like her normal self. The examiner also noted that the Veteran denied having any social difficulties and her mental status examination was essentially normal. The Board finds that this opinion is inadequate. The examiner's opinion is based on the Veteran's reports that she was not currently experiencing any psychiatric symptoms. However, the examiner failed to address the symptoms the Veteran reported when she filed her claim in October 2015, which included panic attacks, nightmares, uncontrollable anger, and fear that she sees people from her old duty station. The Board notes that the Veteran is competent to report symptoms and observable events within the realm of her personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the Board finds no reason to doubt the credibility of these statements. STRs reveal that the Veteran was treated for anxiety, depression, and suicidal ideation throughout 2014 and 2015. Additionally, private treating records reveal that the Veteran sought care in April 2018 for symptoms arising from the sexual assault and has been diagnosed with PTSD and dysthymic disorder by her psychologist. Accordingly, the June 2016 VA examiner opinion is based on an inaccurate factual premise and has no probative value. Reonal v. Brown, 5 Vet. App. 4458, 460-61 (1993); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Finally, with regard to a nexus between the Veteran's diagnosis and her in-service stressor, the Veteran's psychologist expressed his opinion that the Veteran's current psychiatric disability are directly related to the traumas she faced while on active duty. As noted, this professional has supported his conclusions by describing the Veteran's traumatic experience, her symptoms, and her treatment. Accordingly, the Board finds that this opinion is highly probative and a link between the in-service stressor and her current psychiatric disability has been established. In sum, the preponderance of the evidence demonstrates that the criteria for service connection for a psychiatric disability, to include PTSD, depression, and anxiety as due to MST, have been met and service connection is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.