Citation Nr: 22018684 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 14-11 190 DATE: March 30, 2022 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT It is at least as likely as not that PTSD is the result of personal assault in service. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1980 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In February 2018, the Board remanded this case for additional development. The Board finds that there has not been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for PTSD. Service connection can be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition 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. 38 C.F.R. § 3.304(f). If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the 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. VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). On November 3, 2020, VA issued a letter notifying the Veteran of efforts to obtain records from the National Archives and Records Administration (NARA). VA made four attempts to obtain the Veteran's records. However, no response was received. VA determined that these records cannot be located and were unavailable for review. All efforts to obtain the needed information have been exhausted, and based on that fact, the VA determined that further attempts to obtain the records would be futile. A May 1984 psychiatry service treatment record from the Mental Health Clinic notes the Veteran was referred by staff for evaluation and documentation of suspected cross-dressing. The Veteran had been found wearing female lingerie, and there had been previous episodes. The Veteran was being processed for administrative discharge and psychiatric documentation was needed. The examiner stated that there was no psychiatric contraindication to any administrative or disciplinary actions deemed appropriate by command. The impression as cross-dressing for relief of tension. A May 1980 service entrance examination found the Veteran normal with no identifying marks or scars, but a previous scalp laceration, which the Veteran indicated as a head injury. A May 1984 separation examination found the Veteran had a well-healed facial scar. The psychiatric examination was noted to be abnormal, without additional notation. In an accompanying report of medical history, the Veteran indicated that he had frequent or severe headaches, and dizziness or fainting spells. The Veteran denied depression or excessive worry, memory loss or amnesia, and nervous trouble of any sort. The Veteran has reported various stressors, including a stressor related to sexual trauma during service. The Veteran reported being beaten and forced to perform oral sex during several blanket parties. When the Veteran reported the incident to a supervisor, the Veteran was told to "shut [her] mouth" and if she did not, he would make sure she would not be able to test for a promotion. The Veteran also stated she was threatened to be thrown overboard if the incidents were reported. The Veteran reported that she began excessively drinking, having anger issues, panic attacks, and cross-dressing after those incidents. At a June 2017 hearing, the Veteran testified that she still experienced panic attacks, and had nightmares about the assaults, beatings, and the threat of death. When a claimed PTSD stressor is physical or sexual assault in service, credible supporting evidence may consist of a medical opinion based on a review of the evidence that the personal assault occurred. 38 C.F.R. § 3.304(f)(5). A July 2020 opinion by the long-time VA psychologist of the Veteran, found that the Veteran's severe chronic PTSD was the direct result of military sexual trauma (MST) and exposure to hostile military or terrorist activity while serving. The Veteran's gender dysphoric disorder, major depressive disorder, and mood disorder were exacerbated by experiences she had while in service. The examiner diagnosed PTSD as a direct result of military sexual trauma and a fear of hostile military or terrorist activity during service. In a December 2020 VA psychiatric examination, the examiner found the Veteran's claimed PTSD was less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury, event, or illness in service. The examiner found the Veteran's claims of sexual assault remained without sufficient verification. Therefore, the examiner opined that it was as likely as not that the claimed sexual assaults or MST were incurred or caused by events in service. While the Veteran met criteria for unspecified gender identity disorder, and anxiety disorder, the examiner opined that both were less likely than not caused by service. Instead, the examiner opined the Veteran's anxiety disorder appeared secondary to the gender identity disorder. The Board finds that it is at least as likely as not that the claimed personal assault or assaults during service occurred. The Board notes that the Veteran has a facial scar at separation from service that was not documented at entrance to service. The Veteran also has stated that cross-dressing began after assaults during service. That cross-dressing is documented in the service records. The treating VA psychologist found that was corroborating evidence that the event in service occurred and attributed current PTSD to an assault in service. The opinion was based on over 12 years of treating the Veteran. The Board finds that opinion at least as persuasive as the opinion of the December 2020 VA examination and other negative evidence of record. The June 2020 VA psychologist opinion based the evidence on the records during and since service, and explained the basis of the opinion. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has been diagnosed with PTSD, which a VA psychologist has attributed to a personal assault during service. Therefore, service connection for PTSD is granted. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Tsao, 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.