Citation Nr: 1328290 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-35 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a psychiatric disorder, to include anxiety/depression. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from January 1985 to September 1986 and from November 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Milwaukee, Wisconsin. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in March 2013. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran sustained military sexual trauma in service. 2. The Veteran's recurrent major depressive disorder/general anxiety disorder is a result of her in- service sexual trauma and related to her period of service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, her recurrent major depressive disorder and generalized anxiety disorder were incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. As the Board is granting the full benefit sought on appeal, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran maintains that her current psychiatric difficulties arise as a result of having been sexually assaulted while in service. At the outset, the Board concedes that the Veteran was sexually assaulted during her first period of service. In an August 1985 treatment record, it was noted that a psychiatric interview was being conducted relative to the Veteran being a rape victim and that no further appointments were being set up except as needed. Service treatment records reveal that at the time of a July 1986 examination, normal psychiatric findings were reported. On a July 1986 report of medical history, the Veteran checked the "no" boxes when asked if she had or had ever had depression or excessive worry; nervous trouble of any sort; or frequent trouble sleeping. At the time of an August 1990 quadrennial reserve examination, normal psychiatric findings were again reported. On an April 1990 report of medical history, the Veteran cheeked the "yes" box when asked if she had or had ever had depression. In the physician summary section of the report, it was indicated that the Veteran had a history of depression in 1988 and had been treated with Lithium. She stopped taking the Lithium on her own and did not seek any follow-up. It was noted that there were no complaints at that time. At the time of the Veteran's April 1991 service separation examination, normal psychiatric findings were again reported. On her April 1991 service separation report of medical history, the Veteran checked the "no" boxes when asked if she had or had ever had depression or excessive worry; nervous trouble of any sort; or frequent trouble sleeping. In an August 1994 treatment record, the Veteran was noted to be a Desert Storm Veteran that had depression. She indicated that her life had not been very good since returning from the Gulf War and that she had had depression for quite a while. It was noted that she had been treated for depression in the past. It was further indicated that the Veteran needed to be seen by a psychiatrist. A diagnosis of depressive disorder, NOS, was rendered at that time. The Veteran failed to report for an October 1994 appointment. In conjunction with her claim, the Veteran was afforded a VA examination in November 2008. At the time of the examination, the Veteran reported that she was not treated for depression in the military but was seen on one occasion after reporting being raped by a fellow soldier. The examiner noted the evaluation but observed that the outcome of the evaluation or any subsequent treatment was not present. The Veteran indicated that when she reported the rape, the commanding officer did not believe her and gave her extra duty. She stated that she worked with the man who had raped her for a period of time following the incident, which was very difficult, and continued to work with the man until he was transferred to another facility. The examiner stated that he questioned the Veteran more about the incident to determine if she had symptoms of depression or some other disorder as a result of the incident. The Veteran stated that she talked about the incident during counseling she received after discharge and reported that those issues had been resolved. The Veteran denied that she often thought about the rape and indicated that she liked people and did not have any trouble talking about the rape when questioned, but did not want to talk about it unless it was necessary to do so. She denied having symptoms of PTSD. The Veteran stated that she was discharged from the service early due to becoming pregnant (not as a result of the sexual assault) and became depressed shortly after discharge. She noted not being depressed in service as she was too busy. She reported being depressed for 1.5 years, at one point being severely enough depressed to be hospitalized. The Veteran also indicated that after her return from Desert Storm, she became depressed. Following examination, the examiner rendered diagnoses of major depressive disorder by history, now in sustained remission, and adjustment disorder with depressed mood, due to stress of chronic medical problems. The examiner indicated that when questioned about possible sequelae of the trauma she experienced when she was the victim of military sexual assault or when serving in Operation Desert Storm, the Veteran essentially denied all symptoms that might suggest PTSD, depression, or anxiety resulting from any of those events. The examiner indicated that there was some indication in the psychological testing that the Veteran was attempting to present herself in as positive a light as possible, and, therefore, might be minimizing or simply not aware of the impacts on her life. For example, during the testing, she indicated that she avoided men, which might be as a result of coping with her sexual trauma. The examiner stated that there was not enough evidence at this point to diagnose problems related to any problems she experienced in her military service. The examiner indicated that in the absence of confirmation from the Veteran that the rape she experienced may have caused mental health issues, it would be speculation as to whether specific in- service events caused her depression. VA treatment records received subsequent to the November 2008 VA examination reveal that in October 2009, the Veteran was diagnosed as having PTSD with reference being made to the 1985 rape incident. The Veteran was afforded an additional VA examination in August 2010. The examiner noted the in-service reported rape, the findings made on the service medical examinations, the reports of the use of Lithium in 1988, along with noting that the Veteran reported being depressed since 1991 and receiving some occasional treatment since 1992. He also indicated that the Veteran had been diagnosed as having PTSD in the past. The examiner stated that the Veteran reported that she did not have any significant interference with the past rape incident. The examiner indicated that at the time of the examination, the Veteran failed to meet the DSM -IV criteria for any Axis I condition. At the time of her March 2013 hearing, the Veteran testified about the military sexual assault she experienced in service and also addressed the problems she had experienced since that time and upon her return from Operation Desert Storm. In a May 2013 report, a VA psychologist indicated that she had met the Veteran in November 2012 and had had 4 individual therapy session thereafter. She noted that the Veteran reported being sexually assaulted by another soldier while in Germany. The Veteran stated that she felt the incident was not believed by her commanding officer and felt punished when moved to a different work shift and given extra duty. She also described feeling fearful and distrustful of others in her unit. The examiner noted that the Veteran reported that as a result of her experiences, she had longstanding difficulties with depressed mood, anxiety, suspiciousness, feeling unsafe when by herself, difficulty falling asleep at times, past suicidal ideation and attempt, and difficulties with trust and intimacy in romantic relationships. The Veteran also reported having significant difficulties trusting others and feeling anxious in new situations, which negatively impacted her occupational functioning. The examiner rendered Axis I diagnoses of recurrent major depressive disorder and generalized anxiety disorder. She opined that it was more likely than not that the major depressive and generalized anxiety disorders were exacerbated by, if not directly caused by, the traumatic events that occurred during her time in the service. As it relates to issues of service connection for recurrent major depressive and generalized anxiety disorders, the Board will resolve reasonable doubt on the Veteran's behalf and find that her recurrent major depressive and generalized anxiety disorders are related to the in-service military sexual trauma. The record reveals evidence of an in-service military sexual trauma. The Veteran has currently been found to have recurrent depressive and generalized anxiety disorders. As to the relationship between the current recurrent major depressive and generalized anxiety disorders and the military sexual trauma, the Board finds that the medical opinions rendered by the VA examiners and the Veteran's treating VA physician are at least in equipoise. While the June 2008 VA examiner indicated that he could not definitively relate the Veteran's current psychiatric disorders to her in-service sexual trauma as she was not indicating that there was any impact, he did note that testing performed at that time revealed that she could be unaware of the impact that it was having on her. While the August 2010 VA examiner indicated that the Veteran did not meet the diagnostic criteria for any Axis I diagnosis, treatment records obtained from the Veteran's treating VA physicians demonstrate a relationship between her current psychiatric disorders and the in-service sexual assault, with the most recent VA treating physician specifically finding that it was more likely than not that the Veteran's major depressive disorder and generalized anxiety disorder were exacerbated by, if not directly caused by, the traumatic events that occurred during her time in the service The Board finds these opinions to be at least in equipoise as to whether the Veteran's current generalized anxiety and recurrent major depressive disorders are related to her in-service sexual assault. In such a case, reasonable doubt must be resolved in favor of the Veteran. As the Veteran has been noted to have been the victim of a sexual assault in service, as she has been shown to currently have psychiatric diagnoses of recurrent major depressive disorder and generalized anxiety disorder, and as the required medical nexus opinions provided have been shown to be at least in equipoise, reasonable doubt must be resolved in favor of the Veteran. As such, service connection for recurrent major depressive and generalized anxiety disorders is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for recurrent major depressive and generalized anxiety disorders is granted. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs