Citation Nr: 1629966	
Decision Date: 07/27/16    Archive Date: 08/04/16

DOCKET NO.  12-18 689	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder.

2.  Entitlement to nonservice-connected pension (NSC pension).


REPRESENTATION

Veteran represented by:	Julie L. Glover, Attorney-at-Law


ATTORNEY FOR THE BOARD

Mike A. Sobiecki, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1999 to February 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The claim of service connection for posttraumatic stress disorder (PTSD) has been recharacterized as a claim of service connection for an acquired psychiatric disorder.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

In February 2016, the Veteran withdrew her request for a hearing before a decision review officer (DRO).

The issue of entitlement to a NSC pension is addressed in the REMAND portion of the decision below and is remanded to the agency of original jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran experienced a military sexual trauma (MST) in service.

2.  The Veteran's PTSD is caused by the MST.

3.  The Veteran's major depressive disorder is caused by the MST.

CONCLUSIONS OF LAW

1.  The criteria for service connection for PTSD have been met.  38 U.S.C.A.        §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2015).

2.  The criteria for service connection for major depressive disorder have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran seeks service connection for an acquired psychiatric disorder.  For the reasons that follow, the Board finds that service connection is warranted for PTSD and for major depressive disorder (MDD).

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015).  "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

The record shows that the Veteran has three current psychiatric diagnoses: PTSD, MDD, and borderline personality disorder.  See February 2016 psychological evaluation by Dr. A.L.; October 2012 VA examination report; September 2011 VA examination report.  The borderline personality disorder is not eligible for service connection.  See 38 C.F.R. § 3.303(c) ("[P]ersonality disorders... are not diseases or injuries within the meaning of applicable legislation.").  The first element of service connection is, however, satisfied by the diagnoses of PTSD and MDD.

The record contains evidence that the PTSD and MDD may have preexisted entrance into service; however, given the February 2016 psychological evaluation by Dr. A.L., as well as the general course of events that transpired in service and the Veteran's in-service psychological reactions to those events, the Board cannot find that there is clear and unmistakable evidence that these mental health disorders preexisted the Veteran's entrance into service.  Therefore, the presumption of soundness is not rebutted.  See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). 

The Veteran alleges that her current psychiatric disorders are the result of a military sexual trauma (MST).  Her service records show that she had some sort of sexual interaction with a petty officer upon arriving on base in October 1999.  Several weeks later she reported the event to the chaplain and characterized it as a non-consensual encounter.  The chaplain referred her to the Family Services Center, and in November 1999 she underwent a mental health consultation.  The evaluation produced a diagnosis of Axis I adjustment disorder with mixed anxiety and depressed mood, as well as Axis II borderline personality disorder.  The evaluation noted that she had been experiencing anhedonia to daily activities for the past few weeks, bulimic symptoms, and posttraumatic distress symptoms.  The evaluation found that the symptoms appeared to be linked to the sexual encounter and that they had been increasing in severity.  Other service treatment records from December 1999 show that she experienced symptoms of depression, anxiety, and suicidal ideation.  The Veteran's diagnosis of borderline personality disorder resulted in her discharge from active service in February 2000.

Naval Criminal Investigative Service (NCIS) investigated the alleged MST but the petty office was not charged.  The Veteran and the petty officer gave different accounts of the sexual encounter, one alleging that it was not consensual and the other alleging that it was consensual.  In her January 2012 notice of disagreement, the Veteran wrote that the MST was also documented by the civilian police department; however, those records could not be obtained.  See December 2011 email response.

The record contains three competent medical opinions that evaluate the etiology of the Veteran's PTSD and MDD.  A September 2011 VA examination report found that the Veteran's mental health disorders were not related to her MST and instead were more likely than not related to mental health problems that preexisted entrance into service.  In reaching this determination, the examiner noted that the Veteran's account of the MST was unsupported by the other evidence of record and there were no police reports documenting the incident.  (The NCIS report would be associated with the claims file at a later date.)  The October 2012 examiner reached the same conclusion, but relied more heavily on the inconsistencies in the Veteran's account of the MST-the examiner found the Veteran to not be credible in her account of the MST.  The February 2016 private evaluation by Dr. A.L. found that both the PTSD and the MDD were caused by the MST and that the MST did occur.

Thus, in evaluating these opinions, the central question is whether the MST did occur.  Despite a lack of a prosecution of the petty officer and the Veteran's inconsistencies in relating the incident during the VA examinations, the record contains evidence that weighs in her favor.  The alleged MST was documented by the NCIS investigation.  The MST was reported to the chaplain and later to the Family Services Center.  The resultant mental health consult noted behavioral changes had arisen and increased in severity since the encounter, to include bulimic symptoms, posttraumatic distress symptoms, and anhedonia to daily activities.  Other symptoms such as anxiety, depression, and suicidal ideation were also noted the following month, and the Veteran was ultimately discharged from active service because of her psychological problems.  All of this secondary evidence lends support to the Veteran's allegation of an MST.  See 38 C.F.R. § 3.304(f)(5).  Accordingly, the Board finds that the evidence relating to the occurrence of an MST is at least in equipoise; limited to the purposes of this appeal only, the Board will resolve all doubt in favor of the Veteran and find that the MST did occur.              38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102.

Accordingly, the Board finds the etiological opinions of the September 2011 and October 2012 VA examiners to be unpersuasive because they were both based, in part, on a determination that the MST did not occur.  The remaining competent etiological evidence of record-the February 2016 psychological evaluation by Dr. A.L.-weighs in favor of a nexus between the PTSD and MDD and the MST.  Thus, the Board finds that the PTSD and MDD were caused by the MST, and the second and third elements of service connection are therefore met.

All three elements of service connection have been met.  Service connection for PTSD and MDD is warranted.


ORDER

Service connection for PTSD is granted.

Service connection for MDD is granted.


REMAND

The claim for NSC pension was originally raised in connection with the Veteran's claim for an acquired psychiatric disorder.  The Board has since granted the Veteran's claim for service connection; however, the medical evidence of record shows that the Veteran has other nonservice-connected disabilities that could potentially warrant an NSC pension, to include migraines, seizures, and pseudomotor cerebri.  Thus, the claim for NSC pension is remanded to the AOJ for re-evaluation.

The Board notes that this claim should be evaluated under 38 C.F.R. § 3.3(a)(3), which provides NSC pensions for veterans of the Persian Gulf War.  The Board recognizes that 38 C.F.R. § 3.12a prescribes a minimum active duty service requirement of 24 months; however, per section 3.12a(d)(3) the Veteran is now excepted from this requirement by way of having a compensable service-connected disability.  Thus, basic eligibility for NSC pension is not impeded by the terms of the Veteran's service, and the decision should rest on whether the Veteran is permanently and totally disabled from nonservice-connected disabilities in accordance with section 3.3(a)(3)(vi)(B).

Accordingly, the issue is REMANDED for the following action:

Readjudicate the appeal.  If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.

The Veteran 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 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.




______________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs