Citation Nr: 23062587 Decision Date: 11/27/23 Archive Date: 11/27/23 DOCKET NO. 20-18 158 DATE: November 27, 2023 ORDER Service connection for an acquired psychiatric disorder, to include major depressive disorder, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's acquired psychiatric disorder had its onset in active service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1982 to September 1982 and from October 1983 to August 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision.? In that rating decision, the RO denied service connection for alcohol dependence in remission, generalized anxiety disorder, and posttraumatic stress disorder (PTSD). The Veteran's notice of disagreement was received in September 2019.? The RO issued a statement of the case in March 2020.? The Veteran's VA Form 9, substantive appeal to the Board, was received in April 2020. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the claim for service connection for alcohol dependence in remission, generalized anxiety disorder, PTSD, and major depressive disorder as a single claim for an acquired psychiatric disorder. Entitlement to service connection for an acquired psychiatric disorder. The Veteran asserts that her current acquired psychiatric disorder, to include major depressive disorder, is due to a military sexual trauma. Specifically, the Veteran asserts that on the evening of October 2, 1983, she arrived at the Brown Hotel in Louisville Kentucky to report for active duty the next day. She further asserts that after having dinner at a restaurant, she returned to the hotel, had one drink with her father's coworker, returned to her room, changed into her nightgown, and the next thing she felt was someone holding her and telling her not to scream or she would be hurt very badly. After the assault, she asserts he tried to leave, but that she kept the door to her room closed until security arrived, and she recalled her assailant being a Marine officer in uniform. The next morning en route to the MEPS center, she met with the MEPS commander who asked her what she would like to happen given that it would be a 'he said, she said' situation and the Veteran asked if there was any way to keep him out of the Armed Forces. She further asserted that she did not press charges to avoid the stress of a 'he said, she said' situation. 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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for a disease first 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). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is competent to report on the onset and continuity of his current symptomatology. ?38?C.F.R. §?3.159(a); Layno v. Brown,?6?Vet. App.?465, 470?(1994). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." See Savage v. Gober,?10?Vet. App.?488, 496?(1997) (citing Wilson v. Derwinski,?2?Vet. App.?16, 19?(1991)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); see also, Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). According to a February 2021 psychiatric examination and VA treatment records, the Veteran has a current diagnosis of major depressive disorder. Based on the Veteran's timeline, it is reasonable to conclude the assault took place during early morning hours of October 3, 1984, on the Veteran's first day of active duty. According to the Veteran's personnel records, she reported to MEPS in Louisville Kentucky on October 3, 1984. In an April 2011 VA treatment record the Veteran reported being raped in a motel room in 1984 when she was entered military service. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The record also includes additional lay evidence to include a February 2018 statement from a male colleague in attendance at a June 2017 D.A.V. conference who witnessed the Veteran sharing her sexual trauma in the military with a fellow female Veteran as well as a February 2021 statement from the Veteran's daughter sharing that her mother has shared being sexually assaulted during training. Based on the foregoing, in resolving all doubt in the Veteran's favor, the in-service stressor is conceded. The Veteran's service treatment records show in her December 1982 enlistment examination, she had no signs of a psychiatric disorder. Later service treatment records suggest an onset of depression during active duty to include "possible depression" in September 1990, and a provisional diagnosis of depression and anxiety in October 1990. Additionally, an October 1992 reservist treatment record noted the Veteran was "tearful, depressed" and she reported having "lost hope." As such, the evidence is at least evenly balanced that the Veteran's major depressive disorder had its onset in service. 38 C.F.R. § 3.303(d). Resolving reasonable doubt in the Veteran's favor, the elements for service connection for an acquired psychiatric disorder are met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Frederic P. Gallun Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.