Citation Nr: 18147605 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 17-42 603 DATE: November 6, 2018 ORDER Service connection for an acquired psychiatric disorder, to include anxiety disorder NOS (anxiety) and major depressive disorder, recurrent (depression), is granted. REMANDED Service connection for a disability manifested by symptoms of throat pain and irritation, to include gastroesophageal reflux disease (GERD), and to include as secondary to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded.   FINDING OF FACT The Veteran’s acquired psychiatric disorder, to include anxiety and depression, is related to his active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include anxiety and depression, are met. 38 U.S.C. §§ 1110, 1131, 1154; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1961 to April 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and March 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran withdrew his September 2016 Board hearing request. See 38 C.F.R. § 20.704. In October 2018, the Board advanced the Veteran’s appeal on the docket due to the Veteran’s age. See 38 U.S.C. § 7107; 38 C.F.R. § 20.900. The Board has recharacterized the issues on appeal as reflected above to reflect the diagnoses of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).   1. Service connection for an acquired psychiatric disorder, to include anxiety disorder NOS and recurrent major depressive disorder, The Veteran asserts that his depression is related his military service. He states that he is depressed due to a false accusation of rape against him by a fellow Marine, and that he was fired upon by the Shore Patrol while stationed at Guantanamo Bay. See May 2011 VA Form 21-526. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Along with his claim, the Veteran submitted a letter signed by P.L. dated March 2010. In the letter, P.L. stated that she hoped she had reached the R.T. that she had served with in the Marine Corps at Cherry Point, North Carolina in 1966. She stated that she had wanted to contact R.T. for many years to say that she was sorry for what happened “back then,” and hopefully he had a family and had forgiven her. See March 2010 P.L. Letter. The Veteran’s service treatment records (STRs) are silent for psychiatric complaints. His service records show that he was stationed at Guantanamo Bay from September 1964 to September 1965, and at Cherry Point from September 1965 until his April 1966 discharge. The Veteran’s service records also show that in May 1965, he was punished for an April 1965 assault against a military policeman. See Personnel Records. The Veteran presented for a VA psychiatric examination in December 2012. The Veteran report that he was falsely accused of rape during his military service, and that after learning of the Criminal Investigative Division (CID) investigation caused the Veteran months of anxiety due to his fear of being sent to prison by a military court for a crime he did not commit. He also reported being reprimanded after punching a Shore Patrol MP after the MP shot at him. The Veteran stated that he had been depressed most of his adult life since leaving the military, and that he was very sensitive to environmental stressors. The examiner noted that the Veteran’s records show that he sought VA treatment for psychiatric symptoms beginning in 2002, and at that time “[complained of] panic attacks like he had in the late [19]80’s.” The Veteran also stated that he had his tonsils removed at a VA hospital in 1969 or 1970 in an unsuccessful attempt to relieve throat pain and irritation, and that he was told by a VA physician that his throat symptoms were psychosomatic. The examiner explained that “psychosomatic illness” is now classified as Somatization Disorder, that this condition is manifested by physical symptoms with no medical cause, and that individuals exposed to abuse or trauma are more susceptible to somatization. See December 2012 VA Examination Report. The examiner opined that the Veteran did not meet the criteria for a diagnosis of posttraumatic stress disorder (PTSD), because even though he experienced symptomatology similar to PTSD, his reported stressor did not qualify. In this regard, there is no other competent evidence of a current diagnosis of PTSD. However, the examiner opined that the Veteran met the criteria for anxiety disorder NOS, as well as major depressive disorder, recurrent, in partial remission due to medication. The examiner further opined that it was at least as likely as not that both the Veteran’s anxiety and depression were caused by or the result of the rape allegation and investigation during the Veteran’s active service. The examiner explained that “the diagnosis of depression or psychosomatic disorder that was reportedly made in 1969-70 is corrected to be Anxiety Disorder NOS[,] and Anxiety Disorder NOS is a continuation of this depression or psychosomatic disorder made in 1969-70.” See id. Following the December 2012 examination, the RO attempted to verify the Veteran’s reported stressors. The RO sought records evidencing the Veteran’s reported investigation by CID in early 1966, as well as evidence of the Veteran’s “reported gunshot wound.” See August 2014 Deferred Rating Decision. The RO also sought the Veteran’s medical records from the late 1960’s or early 1970s. However, the RO ultimately concluded that no records could be found. See January 2015 Navy NCIS Report; February 2017 VAMC Records Memorandum. In September 2016, the Veteran submitted an opinion from his physician, Dr. K.B., who opined that based on his review of the Veteran’s medical files, the Veteran’s current depression was at least as likely as not caused by the false rape accusation during the Veteran’s active service. See September 2016 Dr. K.B. Opinion. Based on the evidence of record, the Board finds that the Veteran’s acquired psychiatric disorder, to include anxiety and depression, is related to his active service. Initially, the Board notes that the Veteran has current diagnoses of anxiety and depression, and that all the competent medical evidence of record supports a relationship between the Veteran’s active duty service and those disorders. Thus, the remaining question is whether there was an in-service event related to his psychiatric disorder. The Board observes that the Veteran’s assertions are consistent with the types, places, and circumstances of his service as evidenced in official service records, as there is no evidence of record that contradicts his account. See 38 U.S.C. §§ 1154. The Board finds that all the probative evidence of record supports the Veteran’s claim of an event in service. Both the VA examiner and Dr. K.B. opined that it is at least as likely as not that the Veteran’s acquired psychiatric disorder is related to the in-service accusation of rape against the Veteran, and the VA examiner’s opinion explicitly referenced P.L.’s letter alluding to past events between her and the Veteran during his active service. The Board finds that these medical opinions include an implicit opinion that it is at least as likely as not that this event actually occurred. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (stating it is “the responsibility of the trier of fact fairly to... draw reasonable inferences from basic facts to ultimate facts”); Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.”). Indeed, the United States Court of Appeals for the Federal Circuit has held that a medical opinion can serve as evidence that an in-service event occurred, even in the absence of corroborating service records. See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272 (1999) (rejecting the requirement that “something more than medical nexus evidence is required for ‘credible supporting evidence’” in personal assault cases). The Board emphasizes that VA regulations do not impose higher or additional evidentiary requirements when adjudicating claims for service connection for anxiety or depression as opposed to PTSD. Cf. 38 C.F.R. § 3.304(f) (requiring “credible supporting evidence” that a claimed in-service stressor occurred to establish service connection for PTSD). While a negative inference may be drawn from the absence of evidence after laying a proper foundation, the Board declines to do so here. Indeed, the Board observes that, in view of the totality of the evidence of record, it does not appear that such a foundation could be properly established, as the Veteran’s credibility has been bolstered by evidence corroborating other statements that he made. Notably, while neither medical opinion relates the Veteran’s current anxiety or depression to the instance where the Veteran punched a Shore Patrol MP after that MP shot at him, that incident is corroborated by service records, as the Veteran was disciplined for punching a military policeman at Guantanamo Bay. Likewise, the Veteran’s report that he was diagnosed with psychosomatic illness in connection with a tonsillectomy around 1970 is corroborated by contemporaneous evidence of record. See April 1970 VA Form 10-7131 (information request in connection with VA hospital admission); August 1973 VA Examination Report (Veteran reports October 1969 tonsillectomy at VA hospital). Thus, as all the elements of service connection are met, the Board concludes that the Veteran is entitled to service connection for an acquired psychiatric disorder, to include anxiety and depression. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS FOR REMAND 2. Service connection for a disability manifested by symptoms of throat pain and irritation, to include GERD, and to include as secondary to exposure to contaminated water at Camp Lejeune, is remanded. The Veteran reports symptoms of throat pain and irritation since his military service, which he attributes to exposure related to his service at Camp Lejeune. He has a current diagnosis of GERD, his exposure to contaminated water while serving at Camp Lejeune is conceded, and he also reported throat symptoms during active duty. See September 1962 and October 1965 STRs; VA Treatment Notes (GERD as an active problem); 38 C.F.R. § 3.307(a)(7)(iii). Given the Veteran’s in-service exposures and the presence of a current disability, the Board finds that a VA examination and medical nexus opinions on direct and secondary service connection are warranted and should be obtained on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Updated VA treatment records should also be secured. 3. Entitlement to a TDIU is remanded. The Veteran’s TDIU claim is intertwined with his remanded service connection claim and implementation of the award of service connection for an acquired psychiatric disorder. Thus, the Board will also remand the issue of entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Then schedule the Veteran for a VA examination to determine the nature and etiology of any current disability productive of his reported symptoms of chronic throat pain and irritation, to include GERD. The claims file should be made available to and should be reviewed by the examiner. For each disability productive of his reported symptoms of chronic throat pain and irritation diagnosed, to include GERD, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder: (a) had its onset during active duty or is otherwise related to the Veteran’s service, to include as a result of upper respiratory symptoms and conceded exposure to contaminated water at Camp Lejeune therein; (b) is proximately due to the Veteran’s service-connected acquired psychiatric disorder; or (c) has been aggravated (worsened beyond natural progression) by the Veteran’s service-connected acquired psychiatric disorder. In addressing these questions, the examiner should discuss: (1) the Veteran’s STRs, to include his reports of throat symptoms in September 1962 and October 1965; (2) the Veteran’s tonsillectomy in 1969 or 1970, that his symptoms persisted and that his VA physician at the time informed him that his symptoms were psychosomatic. Please also note that in addressing secondary service connection, the primary disability (acquired psychiatric disorder) need not be service-connected or even diagnosed at the time the secondary disability (here, the disorder productive of throat symptoms) is incurred, and reliance on this fact in support of a negative opinion will render it inadequate. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel