Citation Nr: 21031958 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-44 074 DATE: May 25, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, his PTSD is due to military sexual trauma (MST) experienced during active service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1976 to February 1980. These matters come before the Board of Veterans' Appeals (Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded this issue for a VA examination and opinion addressing the nature and etiology of any current psychiatric disorder. The requested examination and opinion were completed in October 2019. The RO subsequently issued a Supplemental Statement of the Case (SSOC) and the case was returned to the Board for adjudication. Thus, the Board finds that the requested development, in substantial compliance with the Board's November 2018 remand directives, has been completed. Stegall v. West, 11 Vet. App. 268 (1998). Initially, the Board notes that the Veteran has been diagnosed with different psychiatric disorders, including PTSD and major depressive disorder (MDD), and that a grant of service connection for an acquired psychiatric disorder incorporates all such psychiatric symptomatology reported by the Veteran. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board notes that a November 2010 Formal Finding of Unavailability of Service Records found that the Veteran's service treatment records (STRs) were unavailable. Following the Board's November 2018 remand, another attempt was made to obtain the Veteran's STRs; however, a response was received confirming that no STRs were available. The Board recognizes that there is a heightened obligation to assist the Veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been, or in actuality were, destroyed in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Entitlement to service connection for PTSD is granted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The sufficiency of a stressor is a medical determination and is presumed by a medical diagnosis of PTSD. Cohen, 10 Vet. App. at 140. If a PTSD claim is based on an in-service personal assault, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Section 3.304(f)(5) provides 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. 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. When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The Veteran contends that he has a psychiatric disorder that is related to harassment and military sexual trauma during service. Specifically, the Veteran has described an instance of physical assault and sexual trauma during service as well as an instance in which the "military pulled guns" on him. He also reported that he "was set up by [his] supervisor." He indicated that he fought for over a year to have the charges dropped; he returned to active duty but requested discharge due to his lack of military motivation. He indicated that he was on and off drugs since then; he had finally "cleaned up" but had recurring flashbacks and bouts of depression. The Veteran asserts that his records showing how his military career changed prior to his discharge reflect what he went through during service. He indicated that he was receiving treatment and his doctors were the only ones he had spoken to about what happened to him. The Veteran's service personnel records reflect that he received low marks in professional performance and military behavior in August 1978 due his lackadaisical approach to duties, dereliction of duties, and showing very little initiative. There is a notation that the Veteran seemed to always argue job assignment. Furthermore, his personnel record shows that he received nonjudicial punishment for possession of marijuana and cocaine in January 1979 and October 1979. In February 1980, the Veteran requested immediate discharge from naval service. A September 2010 medical treatment record reflects a diagnosis of PTSD due to military sexual trauma and major depressive disorder (MDD) based on the Veteran's detailed account of his reported in-service trauma, to include his MST. The Veteran reported symptoms of drug use, depression, and nightmares. An October 2010 mental health record also describes the Veteran's reported in-service stressor, noting that the Veteran had only now spoken of the incident on two occasions since it occurred; the other occasion was in September 2010. A May 2011 VA mental health treatment record notes that the Veteran reported that he had intrusive memories of his sexual assault. He again recounted the event in detail and indicated that his supervisor wanted him to forget everything afterwards and not report it; a court martial occurred, but it was downgraded to lesser charge. The main perpetrator then allegedly set him up for drug related charges, which were later dropped due to entrapment. The Veteran reported having frequent dreams, intrusive memories of "them holding him down", and problems trusting people; he also described feeling "down" sometimes. The record notes diagnoses of PTSD due to military sexual trauma, major depressive disorder, cocaine dependence in remission, and alcohol abuse in remission. Subsequent records reflect ongoing treatment for PTSD. The Veteran was afforded a VA examination in October 2019. The examiner, in three separate opinions, indicated that the Veteran meets the criteria for a diagnosis of PTSD but did not the meet criteria for a diagnosis of MDD. The examiner indicated that there was no evidence in the provided STRs of a diagnosis or treatment for PTSD, MDD, or any other mental health condition during service. Nor was there evidence in the provided STRs of the claimed harassment and in-service assault. The examiner indicated that the only mention of assault in the STRs or mental health treatment was approximately 30 years after leaving the service. Additionally, the examiner indicated that there is no direct or circumstantial evidence in the provided STRs of the alleged assault. Although acknowledging that there is documentation of low marks in performance due to dereliction of duty in 1978 and marijuana and cocaine possession in 1979, both of which were after alleged assault, the examiner indicated that it was impossible to opine that those behaviors represent circumstantial markers of the alleged assault because there was otherwise no evidence of the assault or that these behaviors were related to the alleged assault. Therefore, the examiner found that there is no evidence that PTSD began or was present during service nor is there a nexus between the current diagnosis of PTSD and claimed in-service assault. After a review of the evidence, affording the Veteran the benefit of the doubt, the Board finds that service connection for PTSD due to MST is warranted. Regarding the October 2019 VA examination, the Board initially notes that it is unclear which records the examiner's references to STRs was intended to identify, as the Veteran's STRs are not available for review. Nevertheless, the Board finds that the October 2019 VA opinion carries significantly less probative value because the VA examiner's negative nexus opinion was based on the lack of documentation or reporting of stressors until years after service. Although the passage of time without medical evidence of a disorder is a factor to be considered, it is not dispositive. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006). Moreover, the examiner based the unfavorable nexus opinion on the lack of evidence of the assault. In this regard, the Board notes that in cases involving an allegation that PTSD is connected to personal assault, the Federal Circuit has held that "the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur." AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). Accordingly, the Board assigns less weight to this opinion. Although the record does not definitively establish that the Veteran experienced military sexual trauma in service, the Board looks to the regulatory provisions governing service connection for PTSD due to military sexual trauma in finding that the described events did occur. 38 C.F.R. § 3.304(f)(5). In this regard, the Board finds there is sufficient evidence in the record to credibly establish that the Veteran was a victim of military sexual trauma and that his PTSD is related to such incidents in service. The Board finds the Veteran's lay statements of record to be credible and acknowledges the corroborative behavior changes noted in his service personnel records. Moreover, the Veteran's treating mental health clinicians and the October 2019 VA examiner provided diagnoses of PTSD due to MST based on the Veteran's reports of symptoms and reported in-service stressor. Based on the foregoing, the Board concludes that the evidence is in relative equipoise. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran's favor. Accordingly, as the benefit-of-the-doubt rule is for application, the Board finds that the grant of service connection for PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.