Citation Nr: 22044864 Decision Date: 08/08/22 Archive Date: 08/08/22 DOCKET NO. 17-55 428 DATE: August 8, 2022 ORDER Entitlement to service connection for an acquired psychiatric disability is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the appellant's currently diagnosed acquired psychiatric disability was incurred in her active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability 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 appellant served on active duty in the U.S. Army from August 1981 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for posttraumatic stress disorder (PTSD). The appellant filed a timely Notice of Disagreement (NOD), received in February 2017. A Statement of the Case (SOC) was issued in September 2017. A timely substantive appeal was received in October 2017. The appellant was afforded a virtual hearing before the undersigned Veterans Law Judge (VLJ) in May 2022. A transcript is of record. In light of the evidence of record showing multiple psychiatric diagnoses and the appellant's contentions, the Board has recharacterized the issue of entitlement to service connection for PTSD as entitlement to service connection for an acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record). In light of the favorable outcome below, no prejudice to the appellant has resulted from the Board's recharacterization of the issue. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. "To establish a right to compensation for a present disability, a Veteran 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'the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain specifically enumerated chronic diseases, including psychoses, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Entitlement to service connection for PTSD has specific requirements of medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (requiring diagnosis to conform to DSM-5 and be supported by findings on examination report); 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 Board notes that, with regard to stressor verification, the VA regulation at 38 C.F.R. § 3.304(f) was amended to liberalize the requirement of verification or corroboration of a veteran's claimed in-service stressor events in a PTSD claim. 38 C.F.R. § 3.304(f)(3), as added in 75 Fed. Reg. 39,843-852 (July 13, 2010). However, these revisions do not pertain to claims for PTSD that, as here, are predicated on personal (sexual) assault, combat, or prisoner of war (POW) experience because these types of claims already have their special provisions for establishing the occurrence of a stressor in these other type situations. Acevedo v. Shinseki, 25 Vet. App. 286 (2012) (38 C.F.R. § 3.304(f)(3) applies only to hostile military or terrorist activity, and generally does not apply in sexual assault cases among military personnel). The only notable change for claims predicated on personal assault was the redesignation of this type of claim from subpart (f)(4) to (f)(5). Under 38 C.F.R. § 3.304(f)(5), evidence of behavior changes following the claimed in-service assault may constitute credible supporting evidence of the stressor. 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 may submit any evidence that it received to an appropriate mental health professional for an opinion as to whether it indicates that a personal assault occurred. With regard to personal assault cases, the Court has held that "VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996) (citing VA Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c (8)-(9)) (later redesignated as Part VI, 11.38b(2), and now rescinded), aff'd 124 F.3d 228 (Fed. Cir 1997). The provisions of M21-1 (regarding special evidentiary procedures for PTSD claims based on personal assault) are substantive rules that are equivalent to VA regulations. YR v. West, 11 Vet. App. 393 (1998) & Cohen v. Brown, 10 Vet. App. 128 (1997). 1. Entitlement to service connection for an acquired psychiatric disability. For the reasons that follow, the Board finds that entitlement to service connection for an acquired psychiatric disability is warranted. During the May 2022 hearing, the appellant testified that she was sexually assaulted by a superior while on active duty. She kept the encounter to herself and did not report it or even tell any family or friends. She tried to put it out of her mind, but once her mother and sister died, she began having problems functioning to the extent that hospitalization was required. The appellant also reported that she was married while stationed in Germany, where the assault took place, and that her first husband eventually filed for divorce because of a lack of physical relationship. She explained that her lack of intimacy was a behavioral change following the sexual assault. The appellant was afforded a contracted examination in March 2016. The claims file was reviewed. Following examination of the appellant and review of the claims file, it was determined that the appellant met the DSM-5 criteria for diagnoses of (1) PTSD; (2) schizoaffective disorder, depressive type; and (3) neurocognitive disorder (previously dementia). The contracted examiner determined that the appellant's reported in-service sexual assault was adequate to support the diagnosis of PTSD. However, the examiner opined that it was less likely than not that schizoaffective disorder, depressive type, or neurocognitive disorder were incurred in or were otherwise causally related to her active service because such diagnoses were not consistent with her in-service military sexual trauma. The Board has reviewed the appellant's service treatment and personnel records and has identified three possible markers. First, an August 1982 service treatment note states that the appellant made vague epigastric complaints associated with her unhappiness in the military. Such were worse when she was anxious or angry. Second, a June 1983 training report indicates that the appellant had potential training weakness on numerous tasks. She was also noted to have missed many questions regarding other tasks. She had been assigned to Germany in April 1983. The third is the 1985 judgment of divorce, which states that the appellant had willfully refused to cohabit and/or have marital physical relations with her then-husband since January 1984. The Board must determine the credibility and probative value of the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1977) and cases cited therein (holding that the Board has the duty to assess credibility and weight to be given to the evidence). As a lay person, the appellant is competent to provide evidence of observable events, including having been sexually assaulted. See Savage v. Gober, 10 Vet. App. 488, 496 (1997). The question thus becomes one of credibility. The Board recognizes that the present case, involving allegations of sexual assault, falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events about which a veteran complains. See e.g. Patton v. West, 12 Vet. App. 272, 281 (1999). Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault. See YR v. West, 11 Vet. Ap. 393, 399 (1998). After a review of the record, the Board has determined that the evidence of record is at least in equipoise as to whether the appellant's current acquired psychiatric disability was incurred during her military service. With respect to her reported military sexual trauma, the Board finds no adequate basis to reject the competent lay statements and medical evidence of record that is favorable to the appellant, based on a rational lack of credibility or probative value. See Madden, supra; see also Evans v. West, 12 Vet. App. 22, 26 (1998). The evidence is not unequivocal; however, the Board nevertheless finds that the evidence is at least in equipoise. Notably, as detailed above, the appellant's testimony, coupled with the aforementioned markers, provides competent and credible lay evidence detailing the appellant's emotional and behavioral changes following her reported in-service sexual assault. In sum, the Board therefore finds that the in-service stressor identified by the appellant has been corroborated. See 38 C.F.R. § 3.304(f)(5). The Board places particularly high probative weight on the 1985 judgment of divorce, which explains that the appellant refused to live with, or even be intimate with, her then-husband. Indeed, if a PTSD claim is based on an in-service personal assault, evidence from sources other than a veteran's service records may corroborate an account of a stressor incident. Further, the Court has said that the categorical statement, used in other decisions, such as Moreau and Cohen, that an opinion by a mental health professional based on a post-service examination cannot be used to establish the occurrence of a stressor is not operative in a personal assault case. See Patton v. West, 12 Vet. App. 272, 279-280 (1999). Indeed, in Menegassi v. Shinseki, 628 F.3d 1379 (Fed. Cir. 2011), the Federal Circuit held that under 38 C.F.R. § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether a claimed stressor occurred, and such opinion evidence should be weighed along with the other evidence of record in making this determination. Id. at 1382 & n.1. As described above, the appellant has been diagnosed with PTSD due to military sexual trauma under the DSM-5 criteria by the contracted psychologist and some VA treatment providers who noted behavioral changes following the reported assault. Regarding whether the appellant has a current acquired psychiatric disability, or has PTSD diagnosed in accordance with 38 C.F.R. § 4.125, the Board notes that she has been diagnosed with various mental health conditions during the course of this claim, to include schizoaffective disorder, neurocognitive disorder, and PTSD. Based on the evidence of record, it is difficult to make a clear finding as to the appellant's current diagnosis because the medical professional who offered an opinion in this case appears to be in disagreement with treating clinicians as to the current diagnosis. Indeed, the March 2016 contracted examiner rendered three diagnoses: PTSD, schizoaffective disorder, and neurocognitive disorder. However, the appellant's treating VA clinicians have simply diagnosed the appellant with schizoaffective disorder on several occasions. Regardless, what is clear is that the appellant does currently have an acquired psychiatric disability with active symptomatology. As such, the Board finds that the competent and credible evidence of record establishes the appellant does have a current acquired psychiatric disability, regardless of the label it is assigned. 38 C.F.R. §§ 3.303(a). The question before the Board then, is whether there is a link between the appellant's current acquired psychiatric disability and the above-discussed stressor. Considering all the evidence of record, the Board finds the evidence is at least in equipoise on the question of whether the appellant's current acquired psychiatric disability or disabilities are at least as likely as not related to her active service, particularly her reported military sexual trauma. In that regard, the Board assigns great probative weight to the March 2016 contracted examiner's positive etiological opinion regarding PTSD as it is well-reasoned and consistent with the competent and credible evidence of record. However, the negative opinions offered as to the other psychiatric diagnoses, schizoaffective disorder and neurocognitive disorder, are conclusory in nature and the Board affords such minimal probative weight. In any event, as noted above, regardless of how the appellant's psychiatric disability is characterized, such is causally related to her in-service military sexual trauma. (Continued on the next page) As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in her favor, but only an approximate balance of the positive and negative evidence. In other words, the evidence must be persuasively against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award entitlement to service connection for an acquired psychiatric disorder. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Behlen, 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.