Citation Nr: 1623214 Decision Date: 06/10/16 Archive Date: 06/21/16 DOCKET NO. 10-44 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include obsessive compulsive disorder (OCD), major depression with psychotic features, alcohol dependence, cannabis dependence, and cocaine abuse, and to include as secondary to PTSD. 3. Entitlement to service connection for sleep apnea, to include as secondary to PTSD. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to PTSD. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 1974 to July 1977, and she received decorations including the Good Conduct Medal, the Marksman Badge (M-16 Rifle), and the National Defense Service Medal. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). All documents on the Virtual VA paperless claims processing system and on the Veterans Benefits Management System have been reviewed. The Veteran was scheduled for a Board hearing in May 2016; however, she failed to appear for the scheduled Board hearing. Therefore, the request is considered withdrawn. The issues of entitlement to service connection for sleep apnea, to include as secondary to PTSD, and entitlement to service connection for GERD, to include as secondary to PTSD, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's current PTSD is etiologically related to military sexual trauma that occurred in service. 2. The Veteran's current OCD, major depression with psychotic features, alcohol dependence, cannabis dependence, and cocaine abuse, full sustained remission, are proximately due to or the result of service-connected PTSD. CONCLUSIONS OF LAW 1. The Veteran's PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.304 (2015). 2. The Veteran's OCD, major depression with psychotic features, alcohol dependence, cannabis dependence, and cocaine abuse, full sustained remission, are secondary to service-connected PTSD, and service connection is warranted on a secondary basis for the same. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2015); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Because the Board is granting the claims service connection for PTSD, OCD, major depression with psychotic features, alcohol dependence, cannabis dependence, and cocaine abuse, full sustained remission, discussion concerning compliance with the duties to notify and assist is not necessary. Service Connection A veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order for service connection to be awarded for PTSD, three elements must be present: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that a claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between the current PTSD symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see Moreau v. Brown, 9 Vet. App. 389 (1996). A disability that is secondary to a service-connected disease or injury shall be service-connected. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). The Veteran is competent to report her symptoms and observations, and the Board finds that such reports are credible. The Veteran and her representative contend that she has PTSD that is related to repeated in-service sexual and personal assaults by a serviceman she was dating in service, and that she has other psychiatric disorders, including OCD, depression, alcohol dependence, cannabis dependence, and cocaine abuse, that are related to service or are secondary to PTSD. See e.g., April 2009, June 2009, and February 2010 Veteran statements; and April 2012 medical opinion by Dr. C. W. See also the probative and well-reasoned May 2016 Informal Hearing Presentation. PTSD has been during the current appeal period by a VA clinical psychologist. See e.g., November 2012 medical opinion by VA provider Dr. C. W. The Veteran has also been diagnosed with OCD and major depression with psychotic features during the appeal period. Id. Thus, these current disabilities are shown. The Veteran has also been diagnosed with alcohol dependence, full sustained remission, cannabis dependence, full sustained remission, and cocaine abuse, full sustained remission. Id. There is no lay report or medical evidence indicating that the Veteran used alcohol or cocaine during the appeal period, and there is evidence showing that the Veteran has used cannabis occasionally during the appeal period. The Veteran reported that after her service she continued to drink and use drugs until she first received treatment at VA in 2009. See February 2010 Veteran statement: October 2013 Form 21-0781a (reporting that she has been sober since 2009); December 2009 VA treatment record (noting history of alcohol abuse, denying cocaine use for more than 20 years, and reporting smoking marijuana occasionally). However, because symptoms of alcohol dependence and cannabis dependence are shown within one year prior to the date of filing of the Veteran's claim, the Board finds that there is sufficient evidence to show that the disabilities of alcohol dependence and cannabis dependence existed at the time the claim was filed or during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Further, though the Veteran reports that she has not used cocaine in over twenty years, the Veteran still has a diagnosis during the appeal period of cocaine abuse, full sustained remission, during the appeal period. Therefore, the disability of cocaine abuse, full sustained remission, is shown during the appeal period. For these reasons, the Board finds that the current disabilities of alcohol dependence, cannabis dependence, and cocaine abuse, full sustained remission, are shown. Regarding whether the Veteran's reported in-service stressor occurred, the Board acknowledges that the Veteran has reported that that after service, she became angry and depressed and began using drugs, that she continued to drink and use drugs at least until she first received treatment at VA in 2009. See February 2010 Veteran statement. However, because the Veteran's lay statements are not enough to establish the occurrence of the in-service sexual assault, credible corroborating evidence is needed. 38 C.F.R. § 3.304(f)(5). In claims for PTSD based on personal assault, an after-the-fact medical nexus opinion can serve as the credible supporting evidence of the reported stressor. Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2012); Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006). Here, there is a competent and probative after-the-fact medical opinion of record that shows that the Veteran's reported in-service stressor of sexual and personal assaults occurred and that the Veteran's current PTSD is related to this reported in-service stressor. There is also competent and probative evidence to show that the Veteran's OCD, major depression with psychotic features, alcohol dependence, cannabis dependence, and cocaine abuse, full sustained remission, are proximately due to the Veteran's PTSD. In the April 2012 and November 2012 medical opinions, Dr. C. W., a VA clinical psychologist, opined that the Veteran experienced sexual assault in service and that her PTSD is etiologically related to that sexual assault. Dr. C. W. noted that she is the long-term provider for the Veteran, and that the Veteran's behavior has been consistent with individuals with trauma-related mood disorders. Dr. C. W. stated that the Veteran experienced no notable functional impairment until she experienced ongoing physical abuse, harassment, and rapes in service. Dr. C. W. stated that the Veteran exhibited many of the research-based markers of military sexual trauma, in that there was a significant change in her behavior and personality after the event, and many of her behaviors and habits became contradictory. Dr. C. W. also noted that the Veteran has a history of conflicting reports regarding the sexual assaults to her and to other providers and stated that this is likely due to fragmented memories and/or the tendency of military sexual trauma victims to omit details due to shame or the thought they will not be believed. Dr. C. W. noted the Veteran's continuing psychiatric symptoms and substance abuse issues since service and again noted the presence of a high number of research-based potential markers to military sexual trauma in her history. Dr. C. W. then opined that the Veteran's mental health diagnoses are due to experiencing a military sexual trauma in service. Dr. C. W. also opined that the Veteran's major depression with psychotic features, OCD, alcohol dependence, cannabis dependence, and cocaine abuse, full sustained remission, are secondary to the Veteran's PTSD, and she noted that these disorders are co-morbid mental health disabilities. Dr. C. W.'s opinion has significant probative value because it is based on review of the Veteran's medical history and on the Veteran's reports of changes in her behavior and personality after service, which the Board has found to be credible. Further, Dr. C. W. has the requisite medical expertise and training to render an after-the fact medical opinion regarding whether the Veteran's reported in-service sexual assault occurred, whether the Veteran's currently diagnosed PTSD is related to the in-service sexual assault, and whether the Veteran's other diagnosed psychiatric disorders are the result of PTSD. Further, Dr. C. W. provided thorough rationale to support her medical opinions and covered all relevant bases. Further, the Board notes that the Veteran's service personnel records show a significant decline in the Veteran's performance in service over time. See Enlisted Evaluation Report dated June 1976, covering the period from March to June 1976 (showing that the Veteran received scores of 3 or better, indicating that she met or exceeded duty requirements, in all duty performance traits); Enlisted Evaluation Report dated October 1976, covering the period from July 1976 to August 1976 (showing that in all except two duty performance traits, the Veteran received scores of 2 or lower). Based on this evidence, and in light of the Dr. C. W.'s medical evaluation, the Board finds that the service personnel records showing a decline in the Veteran's performance in service also serves as credible corroborating evidence that the in-service stressor occurred. Based on the April 2012 and November 2012 medical opinions by Dr. C. W., and given the credible corroborating service personnel records showing a change in the Veteran's behavior in service, the Board finds that the competent and probative evidence shows that the reported stressor of a sexual assault occurred in service and that the Veteran's currently diagnosed PTSD is etiologically related to that reported in-service stressor. Accordingly, entitlement to service connection for PTSD is warranted. 38 C.F.R. § 3.304(f)(5). Further, given the competent and probative evidence showing that the Veteran's OCD, major depression with psychotic features, alcohol dependence, cannabis dependence, and cocaine abuse, full sustained remission, are proximately due to or the result of the service-connected PTSD, service connection on a secondary basis is warranted for the same. 38 C.F.R. § 3.310. ORDER Entitlement to service connection for PTSD is granted. Entitlement to service connection for OCD, major depression with psychotic features, alcohol dependence, cannabis dependence, and cocaine abuse, full sustained remission, is granted. REMAND The Veteran contends that she has GERD and sleep apnea that are related to service or secondary to a service-connected psychiatric disorder. See April 2009 claim; November 2012 Veteran statement (contending that her GERD is due to alcohol); see also April 2012 November 2012 medical opinions by Dr. C. W. (noting chronic sleep impairment but stating that she cannot offer a medical nexus opinion regarding sleep apnea). During the current appeal period, the Veteran has been diagnosed with GERD and with obstructive sleep apnea pursuant to a December 2009 VA sleep study. See e.g., December 2009 VA sleep study consult; November 2012 VA primary care note (noting that GERD is an active problem). Based on these facts, VA medical opinions should be obtained to determine the etiology of the Veteran's GERD and obstructive sleep apnea, to include as secondary to a service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran indicated that she is in receipt of disability benefits from the Social Security Administration for her claimed disabilities, and attempts should be made to obtain records pertaining to the same. See April 2009 claim. Accordingly, the case is REMANDED for the following action: 1. Please contact the Veteran and request that she provide information regarding any outstanding records relevant to her GERD and sleep apnea. Ask the Veteran to authorize the release of any identified outstanding non-VA medical records. All attempts to fulfill this development should be documented in the claims file. 2. Please request, directly from the Social Security Administration, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. 3. Please obtain outstanding VA treatment records, to include records from January 2016 to present. 4. After completing the above development, please obtain a VA medical opinion from an examiner of appropriate medical expertise to determine the etiology of obstructive sleep apnea. Make the claims file available to the examiner for review of the case. The examiner is asked to review the case and note that this case review took place. (a) The examiner is asked to provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that the Veteran's obstructive sleep apnea is etiologically related to service. (b) If obstructive sleep apnea is not related to service, provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that such obstructive sleep apnea was caused by a service-connected disability, to include as due to substance abuse. If obstructive sleep apnea is not related to service and was not caused by a service-connected disability, provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that such obstructive sleep apnea was aggravated (i.e., permanently worsened) beyond the natural progress by a service-connected disability, to include as due to substance abuse. If aggravation is found, the examiner should address the following medical issues: a. the baseline manifestations of the Veteran's obstructive sleep apnea found prior to aggravation; and b. the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. Afterwards, please obtain a VA medical opinion from an examiner of appropriate medical expertise to determine the etiology of GERD. Make the claims file available to the examiner for review of the case. The examiner is asked to review the case and note that this case review took place. (c) The examiner is asked to provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that the Veteran's GERD is etiologically related to service. (d) If GERD a is not related to service, provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that such GERD was caused by a service-connected disability. The examiner's attention is invited to the Veteran's argument that her GERD is due to her service-connected alcohol dependence and PTSD. See e.g., November 2012 Veteran statement. If GERD is not related to service and was not caused by a service-connected disability, provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that such GERD was aggravated (i.e., permanently worsened) beyond the natural progress by a service-connected disability, to include as due to alcohol consumption. If aggravation is found, the examiner should address the following medical issues: c. the baseline manifestations of the Veteran's GERD found prior to aggravation; and d. the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. Afterwards, readjudicate the claims on appeal. If a matter is not resolved to the Veteran's satisfaction, furnish the Veteran and her representative a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs