Citation Nr: 21041782 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-53 214 DATE: July 10, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OFFACT The Veteran has a current diagnosis of PTSD; medical evidence of record links his PTSD symptoms with his in-service stressor; and there is credible supporting evidence that his claimed in-service stressor occurred. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD are met. 38 U.S.C. §§ 1110, 1154, 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 in the United States Navy from May 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In February 2021, the Veteran testified at a virtual hearing before the undersigned. The Veteran asserts that he is entitled to service connection for PTSD related to an in-service personal assault. Alternatively, he asserts he has PTSD due to an incident involving an explosion on his ship. See, e.g., February 2021 Board Hearing Transcript at 3. The Board will focus its discussion on PTSD related to the personal assault stressor, as the evidence supports a full grant on the appeal on that basis. 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. Service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a Veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). The regulations governing PTSD provide that where a claim is based on an 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. 38 C.F.R. § 3.304(f)(5). The Veteran's has a current diagnosis of PTSD given by Dr. C.H., his treating VA psychologist. See December 2020 Dr. C.H. Letter; June 2017 Dr. C.H. Letter; see also March 2016 to January 2020 VA Mental Health Treatment Notes (consistent diagnosis of PTSD and treatment by Dr. C.H.). Additionally, the December 2016 examiner, also a VA psychologist, diagnosed the Veteran with Other Specified Trauma- and Stressor-Related Disorder (OSTSD), but not PTSD. See December 2016 VA Psychiatric Research Report. However, the VA examiner opined that the Veteran did not meet the full criteria for a diagnosis of PTSD, as he did not meet Criterion D, which requires "[n]egative alternations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred." See December 2016 VA Psychiatric Examination Report at 7. In terms of which diagnosis is best supported by the record, both Dr. C.H. and the VA examiner are clinical psychologists and thus are shown to be competent to diagnose a psychiatric disorder. However, the record indicates that Dr. C.H.'s diagnosis is based on a more accurate factual basis. In this regard, at the Veteran's Board hearing, he testified that he "held back" and did not fully disclose his experiences to the examiner and initially with Dr. C.H. because he "[does not] like anybody to know how I feel," but he subsequently opened up to Dr. C.H. See Board Hearing Transcript at 3-4. Notably, the Veteran's testimony is consistent with the evidence of record, as the VA examiner noted that the Veteran had poor insight while Dr. C.H. noted that the Veteran had good insight. See December 2016 VA Psychiatric Examination Report at 4, 8; December 2020 Dr. C.H. Letter. Thus, the Board affords greater probative weight to Dr. C.H.'s diagnosis, as it is based on a more complete history of disability. In any event, the difference in opinion between Dr. C.H. and the VA examiner is within the scope of the benefit of the doubt afforded to the Veteran by law. Accordingly, the Board finds that the Veteran has a current diagnosis of PTSD, and thus the first element of service connection for PTSD is met. Moreover, Dr. C.H.'s June 2017 and December 2020 Letters provide a medical link between the Veteran's PTSD and his claimed in-service personal assault stressor. In this regard, each letter notes that the Veteran has current PTSD symptoms and that his personal assault stressor is adequate to support the diagnosis of PTSD. Critically, the December 2020 letter includes Dr. C.H.'s opinion that the Veteran's current symptoms are "due to traumatic events that occurred while serving in the Navy" and then specifically notes the Veteran's reported personal assault. December 2020 Dr. C.H. Letter. Thus, the second element of service connection for PTSD is met. The Board acknowledges that the December 2016 VA examiner opined that the Veteran's OSTSD was less likely than not related to service, but as discussed above, the examiner's opinion is based on a less complete history of the Veteran's disability and thus is entitled to less probative weight. Additionally, there is credible supporting evidence that the Veteran's claimed in-service personal assault stressor occurred. The Veteran testified that the personal assault occurred in the Philippines in the latter part of 1969. See Board Hearing Transcript at 6. The claims file shows that on August 30, 1969 the Veteran's ship was en route from Pearl Harbor to Subic Bac, Philippines. See August 1969 Logbooks. A September 9, 1969 service treatment record (STR) shows that he was treated after receiving several blows to the head while on liberty and that he initially reported to sick call but refused treatment. See STRs. This corroborates the Veteran's report of assault and not receiving treatment afterwards. See Hearing Transcript at 7. Furthermore, the Veteran's brother reported that he served alongside the Veteran on the same ship and personally observed the Veteran immediately after he was beaten and heard the Veteran's report of the incident. See March 2021 R.A. Lay Statement. R.A. is competent to describe his observations of the Veteran and report his statements at the time and his credible statements are corroborated by the Veteran's STRs. Moreover, the Veteran's service records confirm that his brother served on the same ship. See June 1969 Personnel Record. This lay statement further corroborates the Veteran's report of an in-service personal assault. Thus, as there is credible supporting evidence that the claimed in-service assault occurred, the third and final element for service connection for PTSD is met. Finally, the Board acknowledges that the Veteran was subjected to non-judicial punishment for breach of the peace and sentenced to three days' confinement. See December 1969 Court Memorandum. Service connection may not be granted for disability incurred or aggravated due to a veteran's own willful misconduct. See 38 C.F.R. § 3.301. However, the record does not show that the December 1969 breach of the peace is in any way related to the September 1969 personal assault. In any event, VA regulations state that willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death, see 38 C.F.R. § 3.1(n)(3), and here the proximate cause of the Veteran's PTSD was the decision by another servicemember to assault the Veteran, and thus the personal assault was in the line of duty. Accordingly, the criteria for service connection for PTSD are met, and the appeal is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.