Citation Nr: 22016840 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 19-31 949 DATE: March 23, 2022 ORDER Entitlement to service connection for other specified trauma-related disorder and unspecified depressive disorder (claimed as posttraumatic stress disorder (PTSD)) due to military sexual trauma (MST) is granted. FINDING OF FACT The Veteran's currently diagnosed other specified trauma-related disorder and unspecified depressive disorder are related to her military service. CONCLUSION OF LAW The criteria for entitlement to service connection for other specified trauma-related disorder and unspecified depressive disorder due to MST have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1980 to January 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2022, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge (VLJ). 1. Entitlement to service connection for other specified trauma-related disorder and unspecified depressive disorder due to MST. The Board finds that service connection for other specified trauma-related disorder and unspecified depressive disorder due to MST is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD in conformance with established criteria; (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 actually occurred. 38 C.F.R. § 3.304(f), 4.125; Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). VA must give a claimant the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. A diagnosis of PTSD for compensation purposes must be established in accordance with 38 C.F.R. § 4.125(a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-5). VA has determined that the DSM-5 applies to claims filed, or pending before the agency of original jurisdiction, on or after August 4, 2014. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran's appeal was filed in January 2017, the DSM-5 applies here. The Veteran's PTSD claim is predicated on her report of in-service sexual assault. VA regulations provide 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. 38 C.F.R. § 3.304 (f)(5). The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that 38 C.F.R. § 3.304(f)(5) specifically states 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 (Court) 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); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence' "in personal-assault cases). The Veteran contends that the incident occurred while she was on active duty in the military. At the time, the Veteran was with a group of two roommates, and the rest were E6s and E7s. There was a man who was going to give her a ride to the barracks, but he said that there was a party at his house, and he wanted to stop and check. The next morning, the Veteran woke up naked and sore. Her clothes were on the floor, and the assailant was laying beside her fully clothed. The Veteran went to the emergency room afterwards. Later, the Veteran found out that she was pregnant. The Veteran took a voluntary honorable discharge. While on her way back home, the Veteran had an accident and ended up losing her baby. See February 2017 VA 21-0781(a), Statement in Support of Claim for PTSD Secondary to Sexual Personal Assault. Service treatment records show that the Veteran was pregnant during her time in service. For example, in a January 1981 medical health record, it was noted that the Veteran tested positive for pregnancy. On a January 1981 Report of Medical Examination, the physician reported that the Veteran was 5 12 weeks pregnant. Given this evidence, the Board finds that the Veteran's stressor has been corroborated. In August 2018, the Veteran was afforded a VA examination for PTSD. The VA examiner concluded that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-5. The Veteran was instead diagnosed with unspecified depressive disorder with anxiety. The VA examiner reviewed the Veteran's claims file and conducted an evaluation using the DSM-5 criteria. Based upon a review of the record and her self-report today, the Veteran had unprotected sex in November 1980, which resulted in a pregnancy. The majority of the evidence was not consistent with PTSD as a result of the event. The Veteran had chronic depression. Military records were silent for any mental complaints or symptoms. Earliest known mental health treatment was in 1999, at the time of a divorce and years after her service. The Veteran continued to have symptoms of depression with anxiety, but there was no link with her service was found. The VA examiner noted discrepancies in the Veteran's account of the incident. The VA examiner concluded that it was less likely as not the military sexual trauma event described by the Veteran was supported by and consistent with the in-service marker evidence. It was less likely as not that the Veteran had PTSD as a result of the unprotected sex during her service. It was less likely as not that the Veteran's diagnosed depressive disorder with anxiety was a direct result of her service. In January 2019, the Veteran was afforded another VA examination for PTSD. The Veteran was diagnosed with other specified trauma-related disorder and unspecified depressive disorder. It was not possible to differentiate the symptoms because they overlapped. The VA examiner concluded that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM-5 criteria. The VA examiner noted that the Veteran reported symptoms of PTSD, but on the examination, she did not endorse quite enough symptoms for the diagnosis. The Veteran met the criteria for other specified trauma-related disorder. It was more likely than not that the trauma disorder was a result of the military sexual trauma. Based on the foregoing, the Board finds that the evidence is at least in approximate balance that her mental disorder is related to her military service. The August 2018 VA medical opinion is inadequate because the VA examiner casually dismisses the Veteran's credible statements and does not give them any consideration, or the service treatment records that show that the Veteran was pregnant during her time in the military. The January 2019 VA examination is adequate, and thus probative in value. It weighs in favor of the Veteran's claim. Although the January 2019 VA examiner did not diagnose the Veteran with PTSD, he diagnosed the Veteran with other psychiatric disorders. The January 2019 VA examiner provided a sufficient rationale. Notably, in the Statement of the Case, the RO applied a higher standard to the review of the Veteran's claim than what is legally applicable. Specifically, the RO found that the Veteran's in-service stressor could not be confirmed. While such a statement is relevant to claims for PTSD, claims for psychiatric disorders other than PTSD do not have a requirement that in-service stressors occur, only that the claimed in-service incident be shown to be at least as likely as not to have occurred. As reflected, the Board makes such a finding here. (Continued on next page) The evidence of record is in approximate balance, and the benefit of the doubt rule is applicable. Thus, the Board finds that service connection for other specified trauma-related disorder and unspecified depressive disorder is granted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.