Citation Nr: 21042810 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-56 150 DATE: July 13, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) as due to military sexual trauma (MST) is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the claimed MST occurred; there is medical evidence linking the Veteran's PTSD to his claimed MST. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1974 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) in April 2021. A transcript of the hearing has been associated with the record. Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341(1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f), which take precedence over the general requirements for establishing service connection in 38 C.F.R. § 3.303. See Arzio v. Shinseki, 602 F.3d 1343, 1347(Fed. Cir. 2010). Establishment of 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). Regarding the third PTSD criterion, evidence of an in-service stressor, lay testimony alone is generally not sufficient to establish that a stressor occurred; it must be corroborated by "credible supporting evidence." See Cohen v. Brown, 10 Vet. App. 128, 142 (1997). The United States Court of Appeals for the Federal Circuit observed that 38 C.F.R. § 3.304 (f)(5) specifically provides that a medical opinion may be used to corroborate a personal assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor). In determining whether service connection is warranted for a disability, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Entitlement to service connection for PTSD, to include due to MST. During the April 2021 hearing before the Board, the Veteran reported an in-service stressor involving a personal assault and a suicide. Specifically, he asserts that he was sexually assaulted while in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Turning to the evidence, the Veteran's service personnel records noted that the Veteran was counseled numerous times for inconsistent accomplishments of routine tasks and lack of initiative; had personal and marital problems resulting in military police complaints and multiple non-judicial punishments, and was not recommended for advancement or reenlistment. VA treatment records in July 2013, and April/May/August 2016 show the Veteran stated he was sexually assaulted by a fellow sailor in 1980 while attending x-ray technician school and he witnessed the aftermath of someone who committed suicide by a gun to the head while stationed on the USS Coral Sea. The Veteran has sought treatment for PTSD and psychological disorders several times, including in November 2009; May and July 2013; April and August 2015; and three times in 2016. In November 2016, Captain M.W., US Navy, provided a volunteer statement that notes the Veteran's allegation of sexual assault. The Veteran was afforded a VA examination in September 2017. The examiner noted that the Veteran does not meet the criteria for PTSD. The examiner indicated that the Veteran was assessed for PTSD using Diagnostic and Statistical Manual of Mental Disorders (DSM) V criteria and DSM IV criteria and did not meet the criteria for PTSD under either DSM IV or DSM V due to a lack of PTSD symptoms. The examiner, however, found that through the course of the clinical interview the Veteran gave a credible self-report of MST. In a May 2020 private medical opinion, the examiner provides an evaluation addressing all the criteria for a PTSD diagnosis due to sexual assault. The provider opined that "it is clear from the chronology and type of the Veteran's symptoms that they are a direct consequence of his sexual assault." The provider noted the Veteran endorses symptoms consistent with a diagnosis of severe and chronic PTSD. The Veteran continues to experience a host of severe symptoms including debilitating anxiety, impaired sleep, intrusive thoughts, flashbacks and irritability, avoidance of social interaction and intimacy, and avoidance of triggers, cues, or crowded locations. The provider indicated that the Veteran has total occupational and social impairment. While the September 2017 VA examiner did not diagnose the Veteran with PTSD, the May 2020 private assessment diagnosing the Veteran with PTSD is complete and not only diagnosed the Veteran with PTSD, but also links his diagnosis to his experiences during service. The Board finds no adequate basis to reject the evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Thus, the evidence establishes a link between the diagnosed PTSD and an in-service stressor. As noted, the May 2020 private medical opinion indicates the Veteran described his in-service stressor of being sexually assaulted by a fellow sailor in 1980 while attending x-ray technician school, and that he witnessed the aftermath of someone who committed suicide by a gun to the head while stationed on the USS Coral Sea. The private examiner opined that the Veteran has PTSD which is a direct consequence of his sexual assault. As noted above, a medical opinion may be used to corroborate a personal-assault stressor. See Menegassi, 638 F.3d at 1381. Considering this evidence and the holding in Menegassi, and resolving reasonable doubt in favor of the Veteran, the Board finds that the medical evidence supports corroboration of a claimed stressor. Therefore, the Board concludes that service connection is warranted for PTSD as due to MST. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Edwin B. Esmenda, 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.