Citation Nr: 18147238 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 14-30 945 DATE: November 5, 2018 ORDER Entitlement to service connection for PTSD is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT The competent evidence of record is at least in equipoise as to whether the Veteran’s diagnosed PTSD is related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) 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. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a current 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To be entitled to service connection for PTSD, as opposed to another mental health disorder, the record must include (1) medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The law provides that if a PTSD claim is based on an in-service personal assault, evidence from sources other than a veteran’s service records may corroborate the veteran’s account of the stressor incident. Gallegos v. Peake, 22 Vet. App. 329 (2008); 38 C.F.R. § 3.304(f)(5). 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; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these alternate sources. Examples of behavioral changes that may constitute credible evidence of a stressor include, but are not limited to: request for 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 behavioral changes. 38 C.F.R. § 3.304(f)(5). The existence of a stressor in service does not have to be proven by the “preponderance of the evidence” because this would be inconsistent with the benefit-of-the-doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b). Patton v. West, 12 Vet. App. 272, 279-80 (1999). Additionally, under 38 C.F.R. § 3.304(f), VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for interpretation. Bradford v. Nicholson, 20 Vet. App. 200 (2006). Most significantly, for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. Id.; Patton, 12 Vet. App. at 279-80. The Veteran claims entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Specifically, the Veteran states in his September 2017 substantive appeal that his PTSD is secondary to military sexual trauma, which was ultimately the reason behind his subsequent discharge. See VA Form 9. The Board notes that the Veteran has a current diagnosis of PTSD. See August 2016 and July 2018 VA examinations. Therefore, the first Shedden element is conceded. The Board also finds that the Veteran’s claimed stressor of military sexual trauma is conceded. Indeed, in its May 2018 decision, the Board found the Veteran’s contentions regarding his military sexual trauma to be credible, and corroborated by the evidence of record. In this regard, the Board notes the VA examinations of record, both of which acknowledge the Veteran’s military sexual trauma as a stressor which meets the criteria supportive of a diagnosis of PTSD. See August 2016 and July 2018 VA examinations. Indeed, the 2018 VA examiner indicates that the Veteran’s stressor is related to in-service personal assault. Thus, the final element remaining to be discussed is the third Shedden element of nexus. In September 2016, the Veteran was afforded a VA mental health examination. The examiner identified a single stressor, that of military sexual trauma, and determined it to be adequate to support the diagnosis of PTSD. Yet, the examiner diagnosed the Veteran with unspecified anxiety disorder, unspecified depressive disorder, and unspecified personality disorder. The examiner opined that these diagnoses are less likely than not related to service, as the Veteran’s separation examination was silent as to mental health diagnosis or treatment, and because the examiner found the first record of mental health treatment to be in 2011. Pertinently, the examiner stated that the Veteran did not report sufficient symptoms to warrant a diagnosis of PTSD. Yet, the examiner acknowledged that the Veteran had a diagnosis of PTSD in his VA treatment record. However, the examiner dismissed the diagnosis of PTSD previously provided as based on self-reporting. Pursuant to the Board’s May 2018 remand, which found the 2016 VA examination to be inadequate, the Veteran was afforded an additional VA examination in July 2018. At that time, the VA examiner reviewed the Veteran’s entire claims file, and confirmed that he has a current diagnosis of PTSD, which conforms to the DSM-5 criteria. The Veteran reported that after military sexual trauma in service, he started drinking heavily, and received multiple Article 15 reprimands, including due to underage drinking and being late for work. The Veteran stated that his substance abuse after the incident was to help him cope. The examiner indicated that the Veteran’s stressor meets Criterion A, and as such, is adequate to support the diagnosis of PTSD. Indeed, the Veteran reported the sexual assault he suffered at the hands of his supervisor in 1994, and described the incident in detail. This was the only stressor noted on examination. While the examiner noted symptoms to include depressed mood, suspiciousness, flattened affect, disturbances of motivation or mood, and difficulty establishing or maintaining effective work and social relationships, he also noted multiple additional symptoms attributed to Criteria A through E, supportive of a PTSD diagnosis. The examiner opined that the Veteran’s PTSD is less likely than not related to military sexual trauma in service, and is more likely related to 2012 events where his mother and wife passed away. In support of this opinion, the examiner pointed to the Veteran’s multiple instances of misconduct in service, resulting in reductions in grade and reprimands. The examiner also points to several service records and VA treatment notes reflecting that a PTSD diagnosis was not indicated. In addition, the examiner stated that the Veteran had a negative military sexual trauma screening in August 2010. Nevertheless, the same examiner acknowledges that the Veteran was exposed to a traumatic event in service, and that the current symptoms are related to personal assault during military service. The Board acknowledges the 2018 VA examiner’s negative etiological opinion. However, the Board also takes note of the diagnosis of PTSD and the confirmed in-service stressor. The Board further notes, consistent with the examiner’s own review of the claims file, that the military reprimands and corrective action taken against the Veteran, as well as the reported behavioral problems, all came after the 1994 military sexual assault. In addition, while the Veteran’s clinical diagnosis has not always been PTSD, he has consistently reported the symptoms outlined in this examination. Such corrective action and behavioral change is precisely in line with VA regulations regarding evidence of PTSD due to military sexual trauma. See 38 C.F.R. § 3.304(f)(5). Furthermore, while the examiner attributes the Veteran’s PTSD to the 2012 loss of his mother and wife, this event is neither noted nor discussed in the “stressor” section of the examination. Moreover, the Board notes that VA medical records reflect that in April 2016, a VA physician diagnosed the Veteran with PTSD secondary to military sexual trauma. After a review of the record, the Board finds that the evidence in this case is at least in equipoise with regard to whether the Veteran’s diagnosed PTSD is related to his service. There is no dispute that the Veteran is competent to report symptoms of anxiety, depression, avoidance, and re-experiencing traumatic events, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. The Board finds the Veteran’s statements about his in-service trauma and current symptoms to be credible, as there is internal consistency, facial plausibility, and consistency with other evidence of record. The Veteran’s assertions appear to be genuine, credible and consistent. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Furthermore, while there are two VA examinations of record which offer a negative etiological opinion, both acknowledge the Veteran’s in-service military sexual trauma as a stressor. In addition, the Veteran has a current PTSD diagnosis pursuant to DSM-5. Moreover, while the 2018 VA examiner opined that the PTSD resulted from an alternate stressor in 2012, this stressor was not discussed or assessed under Criterion A. Finally, the Board notes that pursuant to VA regulations, when an in-service personal assault and a current diagnosis of PTSD, as here, are conceded, a link need only be established by medical evidence between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). As the record contains a VA diagnosis of PTSD secondary to military sexual trauma by a licensed psychologist, all elements of service connection for PTSD are met. Weighing the positive findings of the April 2016 VA treating physician against those of the VA examiner, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s PTSD is related to service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. Unfortunately, there has not been substantial compliance with the Board’s May 2018 remand directives regarding the issue of entitlement to service connection for hypertension. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board instructed that a VA etiological opinion be obtained regarding the Veteran’s claimed hypertension disability. The Board further instructed that the examiner specifically discuss the Veteran’s service treatment records containing treatment for nose bleeds, headaches and dizziness, a March 1998 medical report showing high blood pressure of 160/90, and the Veteran’s statements of record. The examination report failed to include a discussion of the relevant medical evidence of record and the Veteran’s assertions, and there is no adequate rationale for the negative etiological opinion. Here, the examiner did not discuss the Veteran’s reports of symptoms in service in rendering her opinion that his hypertension was less likely than not incurred in or caused by service. In support of this conclusion, the examiner states only that there is no evidence of complaints or treatment of hypertension in service, and that the medical evidence fails to show the condition developed in service. The examiner’s rationale is not only contradictory, it fails to discuss all of the relevant medical evidence of record as well as the Board’s May 2018 instructions. Specifically, the examiner’s statement that service treatment records are silent as to evidence of hypertension does not take into account the reports of nosebleeds, headaches and dizziness documented in service. Further, the examiner’s rationale is conclusory. A blanket statement that the medical evidence fails to show that hypertension developed in service is insufficient to support a negative etiological opinion. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). Thus, an addendum medical opinion is necessary. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the record. 2. Provide the Veteran’s claims file to a qualified medical professional for an addendum opinion regarding his hypertension. The examiner must be provided with access to the Veteran’s claims file, including this remand. The examiner must note in the examination report that the record and the remand have been reviewed. The need for a physical examination is left to the examiner’s discretion. The examiner must offer an opinion as to whether it is at least as likely as not that the Veteran’s hypertension is etiologically related to his service. In so doing, the examiner must specifically discuss the Veteran’s service treatment records containing treatment for nose bleeds, headaches and dizziness, the March 1998 medical report showing high blood pressure of 160/90, and the statements of record from the Veteran. The examiner must provide clear supporting rationale for any opinion provided, with specific references to relevant evidence. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel