Citation Nr: 23040147 Decision Date: 07/21/23 Archive Date: 07/21/23 DOCKET NO. 18-27 833 DATE: July 21, 2023 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) secondary to military sexual trauma (MST), for substitution purposes, is granted. FINDINGS OF FACT 1. The evidence of record demonstrates evidence of an in-service stressor related to military sexual trauma. 2. The evidence of record demonstrates that the Veteran's diagnosed PTSD was causally related to a corroborated in-service stressor of MST. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD secondary to MST, for substitution purposes, have been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1983 to September 1987. Unfortunately, the Veteran died in September 2021 during the pendency of her appeal; her daughter has been substituted as the appellant. This matter comes before the Board of Veterans' Appeals (Board) from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Additional evidence, a lay statement by D.K., was associated with the claims file that was not considered by the Agency of Original Jurisdiction (AOJ) in connection with the issue on appeal. Nevertheless, the Board has granted service connection for PTSD secondary to MST, representing a full grant of benefits sought on appeal. Therefore, waiver of AOJ consideration of this evidence is not necessary. See, 38 C.F.R.§§ 19.37, 20.1305(c). Entitlement to service connection for posttraumatic stress disorder (PTSD) secondary to military sexual trauma (MST), for substitution purposes, is granted. The Appellant contends that the Veteran's PTSD diagnosis is secondary to MST. After careful review of the evidence of record, and as set forth more fully below, the Board finds that there is competent and credible medical evidence of an adequate diagnosis of PTSD, an in-service stressor of MST, and a nexus between the Veteran's PTSD diagnosis and the in-service MST. Accordingly, the Board finds that service connection for PTSD, is warranted. Service connection will be granted for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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 U.S.C. § 1110; 38 C.F.R. § 3.303(d). As it pertains specifically to PTSD, service connection requires medical evidence diagnosing the disability 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 in-service stressor occurred. 38 C.F.R. § 3.304(f). See, Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). The diagnosis of PTSD must comply with the criteria set forth in the American Psychiatric Association Diagnostic and Statistical manual of Mental Disorders, 5th edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. § 4.125(a), 4.130. 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. 38 C.F.R. § 3.304(f)(5). Examples of such evidence may include, but are not limited to, statements from family members, roommates, or fellow service members, and behavioral changes such as episodes of depression, panic attacks, or anxiety without an identifiable cause. Id. Medical nexus evidence constitutes sufficient credible supporting evidence to corroborate the occurrence of an in-service personal assault stressor. See, Patton v. West, 12 Vet. App. 272, 280 (1999). Therefore, a post-service examination of a veteran and an accompanying medical opinion may be submitted to corroborate the occurrence of an in-service personal assault stressor such as MST. See, Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) The Board is responsible for determining whether the evidence persuasively supports the claim or is in approximate balance, with the Veteran prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 38?U.S.C. §?5107; Lynch v. McDonough 21 F.4th 776 (Fed. Cir. 2021). Post-service treatment records show the Veteran had a diagnosis of PTSD that conformed to DSM-5 criteria. See, January 2018 C & P Exam; May 2017 Cedar Rapids CBOC CAPRI Entry. Therefore, the Board finds that the first element of service connection for PTSD has been established. 38 C.F.R. §§ 3.304(f), 4.125. Turning to the second element, the Veteran's service treatment records are silent for any reports of or treatment for MST, or any other symptom associated with the same. However, the sole fact that a Veteran never reported an in-service sexual assault may not be considered as relevant evidence tending to prove that a sexual assault did not occur. AZ v. Shinseki, 731.F.3d 1303 (Fed. Cir. 2013). As stated above, other evidence may be used to corroborate that a personal assault occurred. 38 C.F.R. § 3,304 (f)(5). The Veteran submitted a stressor statement dated July 2017, which fully described the sexual assault and harassment she faced while in service. The Veteran's friend and fellow sailor, J.D., and high school friend D.B., provided statements corroborating the Veteran's description of events. See, August 2018 J.D. Statement; April 2018 D.B. Statements. Additionally, the Veteran's husband provided a statement dated March 2022, describing the Veteran's symptoms and behavioral changes following the MST. The Board finds these statements to be competent, credible, and highly probative as they were provided by individuals with knowledge of the relevant facts and circumstances, they convey matters that can be observed and described by a lay person, they have been consistent with the Veteran's lay statements to medical providers, and they are supported by other evidence of record. See, 38 C.F.R. § 3.159(a)(1); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Layno, 6 Vet. App. at 470. Finally, the Veteran has consistently reported the same account of the MST incident to medical providers. See, September 2003 to February 2018 CAPRI Records. The Board finds that the Veteran's statements regarding an in-service MST have been sufficiently corroborated by the probative lay and medical evidence of record. Accordingly, the Board finds the evidence of record sufficient to establish an in-service stressor of MST. 38 C.F.R. § 3.304 (f)(5); Menegassi, 638 F.3d at 1382. Finally, regarding the link between the Veteran's PTSD diagnosis and her in-service MST, the Board finds this element has also been satisfied. The January 2018 VA examiner opined that the in-service stressor (i.e., MST) contributed to the Veteran's PTSD diagnosis. The examiner noted that the "event has impacted her [the Veteran] for years," stating that the "Veteran is highly distressed about [her] experiences while in the military." Moreover, statements provided by the Veteran's mother, sister, daughter, and high school friend describe the Veteran's behavioral and personality changes after separation from active duty. See, August 2017 S.R. Statement; August 2017 P.G. Statement; August 2017 G.K. Statement; and April 2018 K.E. Statements. These statements all consistently describe how the Veteran returned home from service a different person. They observed how the Veteran had become socially isolated, depressed, paranoid, and suspicious. The Board finds these statements competent, credible, and highly probative as they were provided by individuals with knowledge of the relevant facts and circumstances, they convey matters that can be observed and described by a lay person, they have been consistent with and are supported by other evidence of record. See, 38 C.F.R. § 3.159(a)(1); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Layno, 6 Vet. App. at 470. Thus, the Board finds that the Veteran's PTSD diagnosis is causally linked to the in-service stressor of MST as reported by the Veteran. (Continued on the next page) ? Based on the foregoing, the Board finds service connection for PTSD secondary to MST, for substitution purposes, is warranted. Amanda G. Alderman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bellack, Dawn D. 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.