Citation Nr: 1512903	
Decision Date: 03/26/15    Archive Date: 04/03/15

DOCKET NO.  13-09 401A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for a variously diagnosed psychiatric disability, to include posttraumatic stress disorder (PTSD).

2.  Entitlement to increased ratings for lumbosacral strain with degenerative joint disease and degenerative disc disease (low back disability), currently assigned "staged" ratings of 10 percent prior to March 27, 2009 and 40 percent from that date.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant, spouse, and cousin.


ATTORNEY FOR THE BOARD

J.C. Chapman


INTRODUCTION

The Veteran had active service from July 1989 to July 1991, with additional services in the Reserves.  These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2009 (low back) and June 2011 (psychiatric) rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).  In March 2010, the RO increased the Veteran's rating for low back disability to 40 percent, effective July 1, 2009.  In January 2013, the RO assigned an earlier effective date of March 27, 2009 for the 40 percent rating for the back.  In September 2014, a videoconference hearing was held before the undersigned and a transcript is associated with the record.

Furthermore, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the scope of a mental health disability claim includes any mental disorder that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record, i.e., that the matter of service connection for other psychiatric disability(ies) diagnosed is/are part and parcel of service connection for a psychiatric disability claim (and that such matter is before the Board).  Accordingly, the matter of service connection for PTSD has been recharacterized to reflect a psychiatric disability, however diagnosed.

The issue of the rating for a low back disability is being REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action on her part is required.



FINDING OF FACT

Resolving all reasonable doubt in favor of the Veteran, the evidence shows that her PTSD has been medically linked to service.


CONCLUSION OF LAW

The criteria for service connection for PTSD have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014).  


REASONS AND BASES FOR FINDING AND CONCLUSION

In light of the fully favorable determination in the matter of service connection for a psychiatric disability, no further discussion of compliance with VA's duty to notify and assist is necessary.

Service connection for PTSD is warranted when the evidence shows: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) medical evidence establishing a link between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  Caluza v. Brown, 7 Vet. App. 498, 511 (1995).

When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b);    38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's PTSD claim is predicated, in part, on a reported history of in-service personal assault.  VA regulations provide that, 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.  Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy.  38 C.F.R.              § 3.304(f)(5).

The United States Court of Appeals for the Federal Circuit observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated."  See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence'" in personal assault cases).

The Veteran contends that the symptoms of her psychiatric disability were caused by military sexual trauma (MST).  The evidence shows that she was first diagnosed with PTSD as early as 2009 by VA.  This diagnosis has been confirmed by various other (VA) medical professionals since.  The Board thus finds that the Veteran has the current psychiatric disability of PTSD.

While the Veteran's service treatment records are negative for objective evidence of MST, the Veteran is competent to report a history of MST and the onset and recurrence of psychiatric symptoms.  See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 470 (1994).  The Veteran has consistently reported in multiple lay statements, as well as in VA medical records, and testified under oath that she was the victim of MST.  Notably, she also reported frequent trouble sleeping and nervous trouble in her June 1991 separation report of medical history.  Moreover, the mere fact that her assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").  Further, in its capacity as finder of fact, the Board finds that the Veteran's report of a stressor is credible, as it is both internally consistent and consistent with the medical evidence of record.  38 U.S.C.A. § 1154(a); Caluza.

Finally, medical opinion evidence may corroborate a personal assault stressor and multiple mental health professionals have found the Veteran's report of MST to be credible.  Menegassi.  VA treatment records dated from 2009 note assessments of PTSD related to MST.  A February 2012 VA record notes that the Veteran was diagnosed with PTSD related to, among other things, MST.  In April 2012, she was diagnosed with PTSD due to MST in 1991 (in service).  Significantly, in May 2014, the Veteran's treating VA psychiatrist noted that while in service, the Veteran was raped by her Commander on several occasions and did not report it because he threatened her.  The psychiatrist stated that the Veteran has severe symptoms of PTSD and that her PTSD is related, in part, to her MST.  Considering this evidence and the holding in Menegassi, and resolving reasonable doubt in favor of the Veteran, the Board finds that the medical opinion evidence supports corroborating the stressor.  Thus, the Board finds there was an in-service personal assault stressor.

Finally, there is evidence linking the Veteran's PTSD to her MST.  As noted above, VA providers have connected her PTSD with her MST.  Accordingly, as the Board has found the Veteran's reports of an MST stressor to be credible, and there is evidence suggesting a nexus between her PTSD and MST, the Board resolves all reasonable doubt in favor of the Veteran and finds that service connection for PTSD is warranted.

The Board notes that the record also includes diagnoses of anxiety disorder and panic disorder and indicates a diagnosis of major depression related to chronic pain problems.  The record shows that the Veteran has pain associated with her service-connected back disability.  Accordingly, the Board finds that the Veteran's now service-connected PTSD encompasses all of her psychiatric symptoms, regardless of the specific diagnosis assigned to them in any particular record.


ORDER

Service connection for PTSD is granted.


REMAND

The Veteran is seeking an increase in her service-connected low back disability.  In September 2014, she testified her back disability is worsening and that the pain radiating to her right leg is causing her to be unable to drive.  Tr. at 17-18.  She was last examined by VA to assess her back in July 2013.  Accordingly, a contemporaneous examination to assess the current severity of her low back disability is necessary.

Further, on July 2013 examination, the examiner indicated that the Veteran had incapacitating episodes over the past 12 months due to intervertebral disc syndrome, but did not specify how many.  Later in the report, the examiner noted that the Veteran indicated her non-VA doctors put her on bed rest during the past year, but that because the case file is so voluminous, he was unable to verify this.  As the duration of incapacitating episodes could be the basis for a higher rating, this matter is pertinent and should be clarified in the examination ordered on Remand.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain any (and all) outstanding VA and/or private treatment records.

2.  Thereafter, schedule the Veteran for an appropriate examination to determine the current severity of her low back disability.  The examiner should provide findings regarding all related symptoms and describe the severity of these symptoms.  The examiner should specifically indicate whether the Veteran had incapacitating episodes due to intervertebral disc syndrome having a total duration of at least 6 weeks during the past 12 months.  It is imperative that the record be made available to the examiner for review in connection with the examination. Any medically indicated tests should be accomplished.  All findings should be described in detail.

3.  Review the record and readjudicate the claim remaining on appeal.  If it remains denied, issue an appropriate supplemental statement of the case and allow the Veteran and her representative opportunity to respond before returning the case to the Board.  

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
M.C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs