Citation Nr: 1601974 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 08-28 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for allergic rhinitis. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from June 1976 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2006 and February 2010 rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) located in Houston, Texas. The Veteran appeared at a hearing before a local hearing officer at the RO in December 2011. A transcript of the hearing is of record. The issues of service connection for rhinitis and sinusitis are addressed in the REMAND portion of the decision below and are remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The competent and credible evidence supports the Veteran's claimed in-service stressor-military sexual trauma (MST). 2. The Veteran has been diagnosed with PTSD and depressive disorder as the result of military sexual trauma. (CONTINUED ON NEXT PAGE) CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include PTSD and depressive disorder, have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As it relates to the claim of service connection for a psychiatric disorder, to include PTSD and a depressive disorder, as the Board is granting the full benefit (service connection) sought on appeal, the claim is substantiated, and there are no further VCAA duties or duties to explain compliance with the VCAA. 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). PTSD and Depressive Disorder 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. § 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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). VA amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing in-service stressors. 75 Fed. Reg. 39843 (July 13, 2010). The amendments, which took effect July 13, 2010, redesignated current paragraphs (f)(3) and (f)(4) of 38 C.F.R. § 3.304(f) as paragraphs (f)(4) and (f)(5), and added a new paragraph (f)(3) regarding a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity. The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's fear of hostile military or terrorist activity. Although the Veteran alleges assaults occurred and he was fearful, the amended provisions do not apply to his claim. The plain meaning of 38 C.F.R. § 3.304(f)(3) is that it applies to fear of hostile military or terrorist activities, not fear of other service members, to include any harassment or assaults. Acevedo v. Shinseki, 25 Vet. App. 286 (2012). Under the revised criteria, the specific provision governing PTSD claims based on personal assault has been renumbered from 38 C.F.R. § 3.304(f)(4) to 38 C.F.R. § 3.304(f)(5). However, the substance of that provision has not changed. The regulations governing PTSD provide that where a claim is based on an 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. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5) (redesignated, as of July 13, 2010). The Veteran maintains that he currently has PTSD as a result of being sexually assaulted by his commander. He indicated that this was against his will and that the offender threatened him not to tell anyone or he would be kicked out of the Army. He has indicated that he did not report this incident until recently and that it had bothered him his whole life. He has noted that he would have made a career out of the military but all he wanted to do after this incident was leave the military. He has reported that this incident occurred about one year before he left the military. VA treatment records associated with the record reveal that the Veteran has been diagnosed with PTSD and depressive disorder. In an April 2009 report, the Veteran stated that he had been forced to commit sex acts against his will. The examiner noted that the Veteran's PTSD score fell in the severe range and that he also had depressive symptoms secondary to the trauma. In a July 2009 letter, the Veteran's wife indicated that she had been married to the Veteran for 27 years and that he had had been unhappy and had problems with others for the entire time period. In conjunction with his claim, the Veteran was afforded a VA psychiatric examination in November 2009. Following examination, a diagnosis of depressive disorder, NOS, was rendered. The examiner indicated that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. The examiner opined that the depressive disorder, NOS, was less likely as not due to the Veteran's military service. He noted that the Veteran denied symptoms of depression with VA caregivers over the past 5 years until 2009. He indicated that the Veteran reported that that he had recently developed problems with guilt and depression related to some sexual encounters he had during his military experience. However, his responses on psychological measures suggested that he was exaggerating his problems. The examiner stated that the Veteran's reported symptoms were not consistent with his stable occupational and family functioning. At his December 2011 hearing, the Veteran testified as to the incidents that took place and also stated that he wanted to get out of the service following the incidents. He reported that the incidents took place between September 1978 and March 1979. He stated that there were no police reports or any record of this incident. The Veteran was afforded an additional VA examination in January 2012. Following examination, diagnoses of PTSD and depressive disorder, NOS, were rendered. The examiner stated that the Veteran met the criteria for PTSD. She observed that in the interview the Veteran was very obsessional, which may have resulted in high endorsement of symptoms reported on the MMPI at his first initial PTSD exam, as he likely read too much into the questions. It was felt by the examiner that the likelihood of the trauma happening was high and that it was contributing to some symptoms of PTSD today that were interfering to some degree in his being able to have loving feelings toward his wife and interpersonal relationships with others. She noted that the Veteran did have remarkable coping strategies so his occupational functioning at work was not impaired. In a December 2012 VA examination report, the examiner indicated that he had reviewed the record, including the previous VA examination reports. He noted that the Veteran was claiming a PTSD condition relating to episodes of military sexual trauma that occurred September 1978-March 1979, in which he was coerced by threats of retaliation if he did not participate in sexual acts. He noted that the January 2012 VA examiner evaluation concluded that the Veteran met DSM-IV criteria for PTSD, depressive disorder, NOS, (related to PTSD), and alcohol dependence in remission. It was indicated that the November 2009 VA examiner concluded that the Veteran did not meet criteria for PTSD, and diagnosed Depressive Disorder, NOS, related to the sexual encounters. He also concluded that his responses on psychological measures suggested that he was exaggerating his problems and that his reported symptoms were not consistent with his stable occupational and family functioning. The December 2012 examiner noted that the January 2012 examiner reported the initial VA examiner's conclusions on her evaluation, stating that his high endorsement of symptoms on the first examination were a result of the Veteran likely reading too much into the questions because he was highly obsessional. The December 2012 examiner observed that the medical record did not indicate markers of the alleged sexual assaults. However, he noted that the Veteran reported that these events occurred in September 1978 to March 1979, and that he left the service in June of 1979, so it was plausible there would not be markers documented in his military medical record. The examiner noted that the Veteran reported that there were two soldiers who might be able to corroborate the assaults, but evidence from the men was not available for review. The examiner observed that the Veteran had used alcohol excessively, but he reported to the initial VA examiner that he drank excessively before the sexual trauma. The examiner further observed that it was possible, as the second VA examiner observed, that he used alcohol to cope with the symptoms of the trauma. The examiner noted that it was not clear from the available documentation what problems the Veteran had after military discharge and before he first sought help for depression at the VA in 2009, and that the Veteran maintained that he had been struggling. He further noted the letter from the Veteran's wife where she indicated that he had problems she was concerned about, but the symptoms included only remarks about avoidant behavior by keeping himself extremely busy. He noted that the Veteran began attending school but dropped out. He also observed that the Veteran had been working as a freight-train railroad conductor, which kept him out of town and did not require interaction with people. He further indicated that the Veteran had difficulties with intimacy with his wife which caused marital problems. The examiner noted that the Veteran did not report the sexual trauma until he told a psychologist at the North Central Federal Clinic in April 2009, and that he told his wife of the trauma at about the same time. The examiner observed that the Veteran's providers had diagnosed him with MST-PTSD in June 2009. He also noted that depression associated with extreme guilt about the sexual events had been reported throughout his VA examinations and in mental health documentation. The examiner stated that it was very common for victims of sexual assault not to report the events and that it was also common for the psychiatric sequelae of these events to become evident years later, after a veteran had struggled with the symptoms, guilt, and shame, without success. The examiner indicated that it appeared that the Veteran sought mental health assistance when he was having suicidal thoughts. Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran has a current diagnosis of PTSD, and whether the PTSD is related to service. As noted above, the November 2009VA examiner opined that the Veteran did not meet the criteria for PTSD. However, numerous VA treatment records show diagnoses of PTSD due to MST by VA physicians and psychiatrists. Moreover, the Janaury 2012 VA examiner found that the Veteran met the criteria for PTSD and depressive disorder due to military sexual trauma. Finally, the Board also finds that there is credible supporting evidence that the Veteran's claimed in-service stressor occurred. He has credibly reported the incidents surrounding his MST on multiple occasions. His spouse has indicated that he has had psychiatric problems for the length of time that she has known him, in excess of 30 years. While the Veteran has not been found to have the "markers" to corroborate his claim of MST, the VA treating physicians have diagnosed the Veteran as having PTSD related to his sexual trauma. The January 2012 VA examiner, while noting that there were no reports of sexual trauma in the record, indicated that the Veteran's PTSD symptoms were indicative of having sustained inservice sexual trauma. The December 2012 VA examiner, while noting there were no markers, specifically stated that it was very common for victims of sexual assault to not report the events and that it was also common for the psychiatric sequelae of these events to become evident years later, after a veteran had struggled with the symptoms, guilt, and shame, without success. He also indicated that as these reported events occurred from September 1978 to March 1979, and as the Veteran left the service in June of 1979, it was plausible there would not be markers documented in his military medical record. The December 2012 VA examiner also stated that it was plausible that the Veteran had used alcohol to cope with his inservice sexual trauma. See 38 C.F.R. § 3.304(f)(5). In addition to PTSD, the Veteran is shown to have a current diagnosis of depressive disorder. The scope of a mental health disability claim includes any psychiatric diagnoses that may reasonably be encompassed by the Veteran's reported symptoms. See Clemons, 23 Vet. App. 1. The Board does not need to differentiate the Veteran's current psychiatric symptoms to determine the specific etiology of any residuals that may be associated with PTSD, as all the Veteran's psychiatric impairment and symptomatology are recognized as part of the psychiatric disorders for which service connection is being granted, namely, PTSD, a mood disorder that generally includes depression and anxiety. See Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). For these reasons, the Board finds that an acquired psychiatric disorder, to include PTSD and depressive disorder, are related to service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for PTSD and depressive disorder is granted. REMAND As it relates to the claim of service connection for sinusitis and allergic rhinitis, the Board notes that the Veteran was seen in service on several occasions with running nose and colds. At the time of an October 2006 VA examination, the Veteran reported that he had been suffering from sinusitis and rhinitis and that the condition had existed since 1976. The Veteran noted having sinus problems and stated that sinusitis occurred constantly. The Veteran reported having had allergies and sinus problems since 1976 while in the service. He indicated that he went to the doctor on sick call and was given medication. He noted that since that time he had had problems. The Veteran reported having a runny nose, itchy and watery eyes, nasal congestion, intermittent shortness of breath, and drainage. Following examination, the examiner indicated that for the claimed condition of sinusitis, there was no diagnosis because there was no pathology to render a diagnosis. For the claimed condition of rhinitis, the diagnosis was allergic rhinitis. The examiner did not render an opinion as to the etiology of any sinus problems, to include rhinitis, and their relationship, if any, to his period of service. Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Subsequent VA treatment records associated with the file demonstrate continued treatment for rhinitis. The Veteran and his representative have requested that the Veteran be afforded an additional VA examination to determine the nature and etiology of any current sinus problems, to include sinusitis and rhinitis, and its relationship, if any, to his period of service. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any current sinus disorder, to include sinusitis and rhinitis. The entire record must be made available to the examiner prior to the examination, and the examiner must review the entire file and note such review. All indicated tests and studies should be performed and all findings must be reported in detail. If any of the claimed disorders are found, the examiner must offer an opinion as to whether it is at least as likely as not (e.g. a 50 percent or greater probability) that the diagnosed sinus problems, to include sinusitis and rhinitis, are etiologically related to the Veteran's period of active service. The examiner should provide detailed rationale for these opinions. 2. After completing the above development, readjudicate the remaining claims. If the disposition remains unfavorable, the RO should furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs