Citation Nr: 23044648 Decision Date: 08/10/23 Archive Date: 08/10/23 DOCKET NO. 14-06 814 DATE: August 10, 2023 ORDER Entitlement to service connection for an acquired psychiatric disorder, posttraumatic stress disorder (PTSD), is GRANTED. FINDING OF FACT The Veteran's PTSD is related to his in-service assault. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. FACTUAL AND PROCEDURAL HISTORY The Veteran served on active duty in the Armed Forces of the United States from May 1978 to May 1982 with additional Reserve service from April 1984 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed the rating decision under the Legacy review system. Originally, the Veteran filed separate claims for service connection for PTSD and Obsessive-Compulsive Disorder (OCD), but the claim was broadened and recharacterized into a single issue, by the RO, as any acquired psychiatric disorder, including PTSD and OCD, as the appeal progressed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Veteran need only establish service connection for one of these conditions to prevail in his claim. In December 2013, the Veteran requested a hearing before the Board. See December 2013 VA Form 9. However, he withdrew the hearing request in a May 2017 letter. See 38 C.F.R. § 20.704(e). In November 2017, June 2020, and November 2022, the Board remanded the appeal for additional development. The matter has since returned to the Board and is sufficiently developed for a decision on the merits. REASONS AND BASES FOR FINDING AND CONCLUSION Although the Board has an obligation to provide adequate reasons and bases supporting this Decision, there is no requirement that each piece of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection - Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). By VA regulation, a more tailored legal standard applies to service connection claims for PTSD whereby the evidence must show (1) medical evidence diagnosing the condition, (2) a link, established by medical evidence, between current symptoms and an in-service stressor, and (3) credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). When claims for service connection for PTSD are based on an in-service personal assault, the controlling regulation allows for evidence from sources other than the Veteran's service records to be used to corroborate his account of the stressor incident, such as statements from family members and evidence of behavior changes including deterioration in work performance. 38 C.F.R. § 3.304(f)(5). The regulation does not, however, relieve the burden otherwise imposed on the Veteran to corroborate the stressor event. Analysis The Veteran contends that he has PTSD and OCD because of his military service. For PTSD, he reported four in-service stressors-a grenade explosion incident, verbal harassment by a higher-ranking service member, a false accusation of criminal activity, and military sexual trauma (MST) during basic training. See February 2019 VA Form 21-0781 and April 2019 VA Treatment Records. The Veteran does not have a current diagnosis of OCD. On February 2020 VA PTSD examination, because the Veteran did not endorse any symptoms of OCD, the examiner declined to provide a diagnosis. Further, on January 2021 VA PTSD examination, a diagnosis of OCD was not provided. While the Veteran sincerely believes he has OCD and the Board does not doubt the sincerity of his belief, as a layperson, he is not competent to diagnose this condition. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic psychiatric criteria and testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110. On the record before the Board, the evidence is persuasively against a finding that the Veteran has a diagnosis of OCD for which service connection is sought. Therefore, there can be no valid claim for service connection for OCD. See Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Because the Veteran need prove only entitlement to service connection for OCD or PTSD, but not both, this ends only the first part of the Board's inquiry and does not doom the claim. Turning to PTSD, on January 2021 VA PTSD examination, a diagnosis of PTSD that conformed to the DSM-5 criteria was provided. Consequently, the first element of service connection, a current disability, has been met. Having found medical evidence in the record diagnosing PTSD, the Board must next address whether there is credible supporting evidence that the claimed in-service stressor occurred. As the PTSD claim is being granted herein, the Board will limit this discussion to the claimed MST stressor. VA treatment records document an MST incident. During a November 2018 visit, the Veteran reported he was an MST victim but refused to provide details. April 2019 VA treatment records document his account of a sexual assault incident during basic training. He stated that this was the first time he told anyone about this event and that he self-medicated with drugs and alcohol to avoid the memory. The Veteran also reported that he recently told his spouse about the incident. This report is corroborated by a February 2021 VA 21-0210, in which his spouse stated that he told her about the MST two years after they were married. An April 2019 VA psychologist found that the Veteran's subjective experience was sufficient for a positive MST screen and reported symptoms met the full criteria for PTSD. Complete service treatment records (STRs) and military personnel records (MPRs) are not of record, including May 1978 to May 1982 active-duty records. Through multiple remand orders, the Board has attempted to obtain such missing records. However, further attempts would be futile. In a July 2023 Final Attempt Letter, VA determined that missing records could not be located and are unavailable for review. See also January 2013 VA Memo. Available MPRs reveal a deterioration in work performance after the stressor incident. The Veteran's active-duty service ended in May 1982, and he subsequently enlisted in the Army Reserve from April 1984 to April 1987. During Reserve service he was absent without official leave (AWOL) for 14 days and had unsatisfactory participation. He was then transferred to a control group. Incidents of MST are by their nature not frequently documented, and VA therefore recognizes that alternative records and evidence are often helpful in substantiating the allegations. Although there is no documentation of MST during active-duty service, STRs and MPRs during this timeframe are unavailable. The Veteran and his spouse have provided statements describing MST, and Reserve records demonstrate a deterioration in work performance. Further, VA treatment records document his report of this incident. Taken together, the Board finds credible supporting evidence that the Veteran's in-service stressor occurred. Turning to the third element of service connection, the file contains conflicting VA medical opinions on the relationship between the Veteran's PTSD and MST. April 2019 and February 2020 examiners provided negative nexus opinions. However, a January 2021 examiner provided a positive nexus opinion. While the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The April 2019 examiner initially indicated that a PTSD diagnosis could not be given on the basis that the MST claim had not been submitted to the VA or otherwise developed. However, the examiner reversed this determination in an addendum opinion, stating that a PTSD diagnosis was warranted. The examiner maintained that he was unable to further opine as to the MST and any markers involved without the claim on file. The February 2020 examiner provided a PTSD diagnosis, specifically indicating in the report that such was warranted based on the MST stressor. However, this examiner also opined that the Veteran's PTSD was not due to the alleged MST because STRs and MPRs do not contain any evidence in support of a nexus. The examiner stated that he had significant concerns about the veracity of the Veteran's self-report. The January 2021 examination report noted an MST incident and acknowledged that there was no evidence or statement related to MST. The examiner was, nevertheless, satisfied with the Veteran's account and provided a positive medical opinion on the relationship between the Veteran's current PTSD and allegation of MST in basic training. The Board concludes that the April 2019 and February 2020 VA medical opinions provide little probative value because they are based on the Veteran not providing an MST statement and a lack of documentation in STRs and MPRs. However, in February 2021, the Veteran and his spouse provided statements about his MST and explained that active duty STRs and MPRs are unavailable. The Board affords more probative weight to the January 2021 VA medical opinion that is consistent with the Veteran's credible statements and April 2019 VA treatment records. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as factfinder, to determine the credibility and weight to be given to the evidence); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the evidence of record is found to be at least in approximate balance, with reasonable doubt resolved in the Veteran's favor, the Board is persuaded that service connection for PTSD is established. As such, all three elements are met, and the claim is granted. 38 U.S.C. § 5107(b); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.102. STEVEN V. ADLER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Baker, 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.