Citation Nr: 22014453 Decision Date: 03/13/22 Archive Date: 03/13/22 DOCKET NO. 08-29 849A DATE: March 13, 2022 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety disorder, and alcohol use disorder, is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, her acquired psychiatric disability, to include PTSD, anxiety disorder, and alcohol use disorder, is etiologically related to military sexual trauma that occurred during service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety disorder, and alcohol use disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1988 to December 1990. The Veteran also served in the Naval Reserves and had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) between March 1985 and March 1988. The Board of Veterans' Appeals (Board) previously remanded this matter in December 2011 and June 2014 to obtain missing service records and then to obtain a medical opinion. The Board then remanded this matter in October 2017 to obtain updated medical records and to reconstruct portions of the Veteran's claims file that went missing sometime after the June 2014 Board remand. The requested development has been completed, and the appeal has returned to the Board for further appellate consideration. The Board is now satisfied there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the Board attempted numerous times to obtain missing military personnel records, service treatment records, substantive appeals forms filed by the Veteran, and Agency of Original Jurisdiction (AOJ) decision and Board remands. The documents listed as missing in the October 2017 Board remand appear to be in the claims file again. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which the veteran was disabled or died from an injury or disease incurred or aggravated in the line of duty, and any period of INACDUTRA during which the veteran was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24). Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror. In order to establish service connection for an acquired psychiatric disorder of PTSD due to military sexual trauma (MST), the evidence of record must include a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 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. 38 C.F.R. § 3.304(f)(5). For applications for benefits received by VA or pending before the Agency of Original Jurisdiction (AOJ) on or after August 4, 2014, a diagnosis of mental disorder must conform to the American Psychiatric Association, Diagnostic and Statistical Manual, Fifth Edition (DSM-V). 80 Fed. Reg. 14,308 (Mar. 19, 2015). In PTSD claims based on personal assault, an after-the-fact medical opinion can also serve as credible evidence of an in-service stressor. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety disorder, and alcohol use disorder, The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, and alcohol use disorder. Specifically, she contends that these psychiatric disabilities result from multiple instances of sexual harassment by a commanding officer when she attended Navy Basic Training in Orlando, FL, as well as from a sexual assault by a fellow officer in his truck in a parking lot at the Naval Reserve Center in St. Paul/Minneapolis, MN. The Veteran contends that she was groped and kissed by her commanding officer without her consent, and she did not report these incidents out of fear of negative repercussions from being a "whistleblower." She also reported that, on a later date, a petty officer approached her while she was waiting for a ride and offered to let her sit in the truck and wait because it was cold out. The petty officer forced himself onto her and sexually assaulted her without her consent, and then threatened her not to tell anyone before letting her leave the truck. The Veteran reports that she told her roommate at the time, and provided the roommate's contact information, but that she was too afraid to report the incident during service. Additionally, the Veteran reported that she had blocked out the memory of the assault after service until she ran into her alleged abuser at a wedding in February 1997. She reported that he confronted her during the wedding with graphic details of their encounter together, and it triggered the memories, causing her to lash out at him both verbally and physically. Lastly, she reports that, as a result, she has struggled with PTSD and alcohol abuse and had to seek inpatient treatment in 2003. After a review of the evidence of record, the Board finds that service connection for an acquired psychiatric disability should be granted. First, the Board acknowledges that the Veteran has been treated for anxiety, depression, and/or alcohol use disorder since at least 2003. Although the Veteran was not diagnosed with PTSD until December 2008, she reported experiencing military sexual trauma during a PTSD screening in October 2008, which is before she filed a claim for service connection for an acquired psychiatric disorder. Additionally, an October 2014 VA examination confirms the Veteran's PTSD diagnosis in accordance with the DSM-V. Next, the Board finds that the alleged in-service incident occurred either during active duty in 1988, or during a period of ACDUTRA between January and March 1988 based on the evidence of record. First, as mentioned, the Veteran reported suppressing memories of the sexual assault by a petty officer until she ran into him approximately 7 years after service. As a result, she has provided estimates in her medical treatment records of the age she was when the assault occurred. She is consistent, however, in her memory that it occurred in a parking lot at the Naval Reserve Center when it was cold out. Furthermore, a letter written by the petty officer's attorney in February 1997 concedes that an encounter occurred between the two in "approximately 1988," although the alleged abuser described it as an "intimate relationship." The Veteran was in a period of ACDUTRA from January 1, 1988 to March 20, 1988, and then was on active duty beginning in April 1988. Therefore, it is at least as likely as not that the alleged stressor occurred during a period of ACDUTRA or active duty. Next, although the Veteran admits she did not report the assault during service, she submitted multiple records corroborating her statements. First, regarding the February 1997 incident with her alleged abuser, the Veteran reports that she loudly began yelling at the Veteran at a wedding that he raped her when he confronted her and triggered the memories of her assault. The Veteran contends that, because this wedding occurred in a small town where the alleged abuser is a business owner, his attorney sent her a letter asking her to issue an apology and a statement that their relationship was consensual because she damaged his reputation. She contends that once her attorney responded by stating that they would report the incident to the military to investigate, and that the Veteran's roommate at the time of the incident could corroborate her reports, the alleged abuser stopped pursuing any claims against the Veteran. Consistent with the Veteran's lay statements, the Veteran's partner also wrote a letter to the Veteran's attorney in February 1997 reporting what she witnessed during the wedding and the graphic things the alleged abuser said to the Veteran. In the letter, the partner reported that, during the time of the altercation between the Veteran and the alleged abuser, the Veteran was crying and turned to the partner saying, "[r]emember when I told you I got raped in a parking lot when I was eighteen....it was [him]." As the alleged abuser admitted through his attorney that an "intimate" encounter happened between the two in 1988, the Board finds these statements further support the Veteran's contentions. Next, the Veteran's father submitted statements in May 2010 indicating that, when the Veteran returned home from service, she informed her mother that she experienced sexual harassment and "another situation" during service that she was very upset about. He witnessed her break down in the middle of the park one day shortly after returning home from service, as well. Furthermore, medical records beginning in February 2003 indicate the Veteran has suffered trauma, for which she was hospitalized for one month in 2003 to obtain treatment for alcohol dependence and marijuana abuse. Since September 2009, the Veteran has consistently received trauma therapy for MST, and her mental health therapy records are consistent with the Veteran's allegations of the MST during service. The Board finds the Veteran's statements of her stressor credible, as they have been consistent since she began disclosing this information to treating physicians in October 2008. Her medical records since then continually attribute her PTSD, anxiety, and substance use disorder to MST. Additionally, her testimony is consistent with statements submitted by the Veteran's partner and father, who were able to observe the Veteran's behavior since returning from service. Her statements are also consistent with letters in evidence between the Veteran's attorney and her alleged abuser's attorney in February 1997 after a public altercation where the abuser reminded the Veteran of the reported incident. In arriving at this conclusion, the Board acknowledges the negative evidence of record, including an October 2014 negative nexus opinion. However, the examiner supported their opinion, in part, by stating the Veteran only began seeking treatment for MST after being denied entitlement to service connection. However, the medical records show a report of MST before the Veteran ever filed for disability compensation benefits. Additionally, the examiner argued that the Veteran's reports of the dates of the alleged sexual assault are inconsistent with the evidence of record, but they did not acknowledge the alleged abuser's own admission that an interaction happened between the two in 1988, at which time the Veteran was either on ACDUTRA or active duty. As such, the Board finds this opinion lacks probative value. As the weight of the evidence is in favor of the Veteran's claims, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, and alcohol use disorder, is warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel