Citation Nr: 1727294 Decision Date: 07/13/17 Archive Date: 07/25/17 DOCKET NO. 09-34 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for alcohol abuse (related to Hepatitis C). 3. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney-at-Law ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from August 1984 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2007 and July 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In the November 2007 rating decision, the RO denied service connection for PTSD. Further, in the July 2014 rating decision, the RO denied service connection for alcohol abuse and entitlement to a TDIU. In December 2013, the Board broadened the issue on appeal to include any acquired psychiatric disorder, to include PTSD, and remanded the matter for further development. Additional evidence was submitted by the Veteran, through his representative, in October 2016 along with a waiver of such evidence. As such, the Board may properly consider this evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for an acquired psychiatric disorder, to include PTSD. The Veteran has attributed his psychiatric problems to trauma experienced from various different in-service incidents. First, he cited the death of a friend who served aboard a naval vessel different from the naval vessel on which the Veteran served (the USS America (CV-66)). Second, he cited an incident during basic training - a swim test - in which he almost drowned. He asserts that the experience caused him a chronic fear of drowning while he served at sea. Third, the Veteran also reported that he experienced stress aboard the USS America while serving off the coast of Libya in the Mediterranean Sea. Fourth, he has reported being raped near the end of boot camp. Service treatment records are silent with respect to any treatment, findings or diagnosis pertaining to a mental health disorder. However, the record does confirm that a navy sailor from the Veteran's hometown died in May 1987 while serving onboard the USS Stark (FFG-31). The Board also takes judicial notice that the USS America was deployed to the Mediterranean in early 1986 due to escalating tensions with Libya. Moreover, the Veteran's reported drowning is consistent with the circumstances and places of his service. Nevertheless, service records are silent with respect to the Veteran's reported sexual assault. Post service, the first medical evidence of a mental health disorder is a May 2010 VA psychiatry consult, which showed a diagnosis of mood disorder, PTSD related to sexual trauma, polysubstance dependence primarily alcohol/cocaine and tobacco, and inability to tolerate pain secondary to physical and psychological factors. The Board previously remanded this matter to afford the Veteran a VA examination, which was done in May 2014. The examiner noted the in-service stressors of the claimed rape in 1984 and his friend being killed onboard the USS Stark, but did not address the Veteran's reported fear of drowning or stress while deployed to Libya. The examiner also noted childhood physical abuse. He indicated that there were no markers to substantiate the Veteran's reported rape stressor. The record was silent for any treatment. On his discharge physical, he denied any depression, anxiety, nervousness or sleep problems. The examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD. Rather, the examiner diagnosed alcohol use disorder, cocaine use disorder and substance induced depressive disorder. The examiner determined that it appears that all of the Veteran's symptoms were related to substance use, including past use and, thus, it was difficult to distinguish which symptoms were attributable to each diagnosis. The examiner opined that the Veteran's substance induced depressive disorder is not caused or aggravated by the Veteran's reported in-service stressors or any other aspect of his military service. The examiner rationalized that in the absence of documented evidence that the Veteran experienced a mental disorder during military service, and in the presence of his documented denial of mental health symptoms at the time of his discharge, and in the presence of reported symptoms of depression that started long after military service that appear secondary to substance use, it appears that his substance induced depressive disorder is not caused or aggravated by the Veteran's reported in-service stressors or any other aspect of his military service. Subsequently, in support of his claim, the Veteran submitted lay statements in October 2016 from two friends and his mother. In sum, the statements indicated that the Veteran's behavior began to change while in service. Moreover, he continued to exhibit psychiatric symptoms, including isolation, anxiety, suicidal ideation and depression upon his discharge until the present. An October 2016 Mental Disorders Disability Benefits Questionnaire (DBQ), which was completed by a private psychologist, was also submitted. The claims file was reviewed. Significantly, at the time of the examination, the Veteran denied a substance use history. The examiner noted that his mom and friends endorsed that the Veteran's depressive disorder symptoms were a result of military service and exacerbated in military service. The examiner also noted a body of literature detailing the emergence of mental health symptoms within active duty servicemen. The examiner opined that the Veteran suffered from unspecified depressive disorder more likely than not began in military service, continued uninterrupted to the present and prevented him from maintaining substantially gainful employment. However, the examiner did not provide sufficient rationale to support her opinion as she did not address the pertinent evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). In this regard, she simply referred to lay statements and generic publications with no further explanation and failed to discuss relevant evidence of record, including service treatment records showing no psychiatric symptoms, the Veteran's alleged in-service stressors, his alleged childhood trauma, his ongoing substance abuse for many years, and the fact that there was 12 years between discharge and his first psychiatric treatment. As such, this opinion is inadequate to support an award of service connection. Regardless, given the additional lay statements and October 2016 medical opinion, the Board finds that the May 2014 VA examination is also inadequate as additional relevant evidence has been associated with the record that was not considered by the examiner. Moreover, although the examiner did not find any markers for rape, the examiner did not consider the Veteran's alcohol use that he alleged began in service. She also did not address the VA clinical records documenting a diagnosis of PTSD due to military sexual trauma (MST). There is also evidence of sexually transmitted diseases in service that was not discussed. In this regard, the Board notes that, according to the special provisions of 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives concerning the alleged MST to an appropriate medical or mental health professional for an opinion as to whether the evidence indicates that a personal assault occurred. That is to say, in these types of cases there is an exception to the general rule announced in Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996), that after-the-fact medical nexus evidence cannot, as a matter of law, corroborate the occurrence of a noncombat stressor in service. Indeed it can when, as here, the claim is predicated, in part, on MST. See Patton v. West, 12 Vet. App. 272, 277 (1999); YR v. West, 11 Vet. App. 393, 398-99 (1998). Moreover, VA clinical records and the VA examiner also appear to indicate that the Veteran has a psychiatric disorder that preexisted service as both document childhood trauma. In this regard, the Veteran's entrance examination dated in August 1984 shows that he was evaluated as psychiatrically normal. Thus, the Veteran is presumed to have been in sound condition with respect to any psychiatric disorders upon entrance into service. See 38 U.S.C.A. § 1111. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3-2003. A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). However, the VA examiner did not clearly offer an opinion as to whether the Veteran had a psychiatric disorder that clearly and unmistakably preexisted service, and if so, whether it was clearly and unmistakably not aggravated in service. The examiner also did not adequately explain why the Veteran did not meet the criteria for PTSD based on his other in-service stressors, including the corroborated stressor of his friend dying onboard another ship, his service off the coast of Libya and his reported fear of drowning. Significantly, the examiner also relied on the fact that the Veteran denied mental symptoms upon discharge; however, as the only Report of Medical History in the Veteran's service treatment records is dated in August 1984 upon entrance into service, it appears that the examiner erroneously relied on this report as showing no symptoms upon discharge. In light of the above, the Board finds that this matter should be returned to the AOJ to afford the Veteran another VA examination to determine whether he currently suffers from an acquired psychiatric disorder, to include PTSD, that was either incurred in or aggravated during his active service. Moreover, as the Veteran's substance abuse disorder appears to be either part and parcel of, or associated with the Veteran's psychiatric disorder, this issue must also be returned for a VA examination. Further, the issue of entitlement to a TDIU is inextricably intertwined with the remaining claims on appeal. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, this issue must also be returned to the AOJ for further consideration. As a final matter, the record indicates that the Veteran receives continuing treatment at the VA for his psychiatric disorder. The most recent VA treatment records associated with the Veteran's electronic record are dated from May 2016. As VA medical records are constructively of record and must be obtained, the AOJ should obtain VA treatment records from May 2016 to the present. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from May 2016 to the present. 2. Afford a VA examination to the Veteran conducted by a psychologist or psychiatrist in order to determine the current nature and etiology of his acquired psychiatric disorder. The record should be made available. The examiner should respond to the following: A) Clearly delineate all currently diagnosed psychiatric disorders. B) With respect to each diagnosed psychiatric disorder, is there clear and unmistakable evidence that the disorder pre-existed service? If there is clear and unmistakable evidence that the disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran's disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. C) If the Veteran's PTSD did not preexist service, whether such PTSD is the result of his claimed in-service stressors, to include a friend who died in May 1987 while serving onboard the USS STARK, service off the coast of Libya, almost drowning during basic training and the reported rape. D) For each currently diagnosed acquired psychiatric disorder other than PTSD that did not preexist service, whether it is at least as likely as not that any such disorder is related to the Veteran's service. A rationale for all opinions expressed should be provided. The examiner much address the service treatment and personnel records, post-service medical records, statements from the Veteran, statements from his friends and mom, the May 2014 VA examination and the October 2016 private DBQ with associated publications. 3. Readjudicate the appeal. 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). _________________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).