Citation Nr: 1751548 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 09-50 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a psychiatric disorder. ORDER Service connection for anxiety and depressive disorders is granted. FINDING OF FACT The Veteran's anxiety and depressive disorders were incurred during military service. CONCLUSION OF LAW The criteria for establishing service connection for anxiety and depressive disorders have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1978 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in June 2014. This case was last before the Board in January 2017, at which time it was remanded for additional development. The case has been returned to the Board at this time for further appellate review. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. On appeal, the Veteran has asserted that his psychiatric disorder began during service as a result of being falsely accused of sexual harassment. Particularly, in his June 2014 hearing, the Veteran testified that he was working in the accounting division near the end of his period of service, when one day his Sergeant Major approached him and told him that he had been accused of sexual harassment. He was informed that he could not return to his work station and that returning to the building would result in his arrest and imprisonment. The Veteran stated that he was assigned to do other, menial jobs such as cutting grass for a few months before eventually being discharged without any court marshal or other trial respecting the sexual harassment charges against him He further stated that at one point his superior officers required him to go see psychiatrists "to see if [he] was crazy." The Veteran's written statements of record, particularly in a July 2009 statement, are substantially similar to the testimony provided during his hearing. In a June 2017 statement, the Veteran's sister indicated that the Veteran would visit during military service and would be the same as before joining the military, but that one day, he came home and he was withdrawn and not washing his body. The Veteran's sister noted that he was still detached from society, although he has slowly become less withdrawn over the years since his discharge from military service. The sole indication of any psychiatric problems during military service was in March 1982; that service treatment record, however, does not detail the substance of the Veteran's psychiatric treatment at that time, but merely indicated that he was seen for a mental health consultation. It does not appear that the Veteran was examined upon his separation from military service. The Veteran's service personnel records do not document any action taken against him during his period of service; there is no mention of any sexual harassment charge brought against the Veteran. Post-service, in December 1995, the Veteran sought psychiatric treatment at VA; the Veteran reported at that time that his social withdrawal and paranoid lifestyle was related "to an incident that occurred while he was in service and was the prime cause that initiated his 'withdrawal from society.' He explained that this was an unsubstantiated sexual harassment charge that was never tried but resulted in his separation from service. He has never been the same since and ha[d] recurring dreams of faceless women accusing him." The Veteran enrolled at VA for treatment in April 2008; on initial intake, the VA physician's assistant indicated that the Veteran was hard to get a history from, although he reported a long history of social anxiety, depression and paranoia. At one point during the initial intake, the Veteran failed to answer the questions, and stated that he preferred to have a male asking him questions instead. He was referred at that time for a psychiatric consultation. The Veteran underwent initial psychiatric consultation at VA in May 2008. At that time, the Veteran indicated that he had mistrust and suspiciousness of others; he reported that "it all started in 1982 when he was in active duty and one day out of the blue he was called by his sergeant and told that he was being investigated for 'sexual harassment' and that he [could] be jailed for that, [and] he was asked not to return to his work otherwise he would be arrested [on] sight." After examination, the Veteran was diagnosed with an anxiety disorder and rule out depressive disorder, along with alcohol abuse. The Veteran was seen for regular psychiatric treatment by VA for approximately 2 years and records reflect he gave a substantially similar account regarding his sexual harassment charge during military service at that time; he was diagnosed with an anxiety disorder. In January 2015, the Veteran underwent a VA psychiatric examination. During that examination, the Veteran was diagnosed with a paranoid personality disorder under the DSM-V. The examiner opined that the Veteran's psychiatric disorder was less likely than not related to military service, noting a long history of paranoid personality disorder with heightened interpersonal sensitivity, significant paranoia and suspiciousness, and marked difficulty in interpersonal functioning. The examiner noted that the service treatment records did not document any psychiatric diagnoses or formal mental health treatment, and his first treatment was in 1995 when presented with a jury duty summons. Based on the foregoing, it was the examiner's opinion that the Veteran's paranoid personality disorder was less likely than not associated with his military service, to include allegations of being accused of sexual harassment. In an April 2016 addendum, a different VA examiner, who did not examine the Veteran, opined that she agreed with the previous examiner's diagnosis of paranoid personality disorder. The April 2016 examiner noted recent VA treatment records documenting a diagnosis of paranoid personality disorder, bereavement issues, depression and anxiety. She further opined that she could not say that the Veteran's psychiatric condition was a result of his military service as there was no evidence that he was diagnosed with or received treatment for a mental health disorder while he was in the military, nor did the evidence since separation from service document an onset of psychiatric difficulties during military service or that his service was a direct cause of his mental health issue. The Board noted several deficiencies with the above VA examination and addendum opinion and remanded for another VA examination in January 2017. The Veteran underwent another VA examination in February 2017, at which time he was diagnosed with generalized anxiety disorder and a major depressive disorder with psychotic features. The February 2017 examiner noted the above evidence, including the March 1982 consultation in service, as well as his VA treatment records, the January 2015 VA examination and April 2016 addendum opinion. The Veteran detailed to that examiner the sexual harassment incident that occurred during service, which was substantially similar to his presentations of that incident above. The examiner additionally noted the treatment in 1995, in which the Veteran reported that the psychiatrist at that time told him he "needed to get over it," in reference to the sexual harassment charge; he reported that he walked out and did not come back to VA until 2009. Based on the examination, the February 2017 examiner noted that this was a diagnostically complex case, but that he did not think a paranoid personality disorder was warranted. The examiner further noted that the DSM-V stated that clinicians should be cautious in diagnosing personality disorders during an episode of depression or anxiety as there were cross-sectional symptom features that mimic personality traits and make it difficult to retrospectively evaluate long-term patterns of functioning; personality changes also emerge and persist after being exposed to extreme stress. After clarifying that the Veteran has anxiety and depressive disorders, the examiner opined that the Veteran's report was that he was in shock, scared and worried the last 2 to 3 months of his service; he also noted that there was a record documenting he was seen by Mental Health around that time frame. However, the examiner noted that he was unable to verify the Veteran's reported incident in service and therefore, although he believed that his allegations were likely, he could not say for certain that his psychiatric problems had their onset during his service without speculating. Therefore, the examiner concluded that it was less likely than not that his psychiatric problems had their onset during service. Based on the 2017 VA examination report, the Board finds that the Veteran has diagnoses of anxiety and depressive disorders throughout the appeal period. Additionally, by resolving reasonable doubt in his favor, the Board finds that the Veteran's statements with regard to his in-service incident of being accused of sexual harassment to be credible. Specifically, the remarkable consistency with which the Veteran has repeatedly-over the course of nearly 25 years-documented that incident with detailed precision lends credibility to the allegation. In fact, the Veteran first reported that this incident occurred in 1995 to VA and only in the context of attempting to get out of going to jury duty, rather than having any pecuniary interest at that time. Furthermore, the details of his statements in 1995 are consistent with the reports in 2008 and throughout the record, and such consistency also lends great credibility to those statements. Moreover, the Board reflects that the February 2017 VA examiner believed that the alleged incident occurred during service, even though he could not strictly verify that it occurred. Finally, the Board notes that such allegations are corroborated by the fact that the Veteran's service treatment records do reflect that he sought psychiatric care during the time period of the alleged incident. The allegations are further corroborated by the Veteran's sister's statement regarding her observations of the Veteran's behavior immediately after release from military service. Thus, the in-service incident and the current disability elements have been established. With respect to a nexus between the two, the Board finds the 2017 VA medical opinion supports the establishment of a nexus in this case. Although the examiner stated that he could not say whether the Veteran's current psychiatric condition was related to service, he explained that this was only because the Veteran's alleged in-service incident of being accused of sexual harassment was not verified in the record. Given that the Board has resolved reasonable doubt in favor of the Veteran and found the allegations of the incident in service are credible, the Board finds the 2017 VA opinion supports a grant of service connection in this case. The January and April 2016 examiners' opinions weigh against the claim; however, no probative value attaches to those opinions as they did not appropriately diagnose the Veteran (as explained by the 2017 VA examiner), and their opinions were based on the fact that the alleged in-service incident was not documented in the record. Accordingly, entitlement to service connection for anxiety and depressive disorders is warranted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel Copy of Decision Sent To: Disabled American Veterans Department of Veterans Affairs