Citation Nr: 18147919 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 13-02 424 DATE: November 6, 2018 ORDER Entitlement to service connection for an acquired psychiatric disability is granted. FINDING OF FACT The weight of the evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disability is at least as likely as not related to in-service stressors. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board notes that the Veteran submitted a March 2018 correspondence in which she requested to testify before the Board via a videoconference hearing. The Veteran has already been afforded a hearing, which took place in February 2016. She has been afforded an opportunity to submit additional written evidence and documentation. The Board finds that no additional hearing is necessary. The Veteran is seeking service connection for posttraumatic stress disorder (PTSD). The United States Court of Appeals for Veterans Claims (the Court) indicated that the VA cannot unduly limit its consideration of claims for service connection for specific mental disorders under circumstances in which other diagnosed psychiatric disabilities may be present. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) [holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled]. In light of Clemons, and in view of the diagnosis of major depressive disorder and bipolar disorder, the Board has expanded the issue to include any acquired psychiatric disability. The issue is as stated on the title page. Entitlement to service connection for an acquired psychiatric disability Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). At the Veteran’s February 2016 Board hearing, she reported two stressors to which an acquired psychiatric disability could be related. First, she related that while serving in Saudi Arabia, she was subject to SCUD missile attacks. Second, she stated that in October 1990, she was sexually assaulted. Service treatment records related to the Veteran’s reserve duty in 1980, 1981 and 1986 are negative for complaint, treatment or diagnosis of an acquired psychiatric disorder. Service medical records covering her period of active duty from August 1990 to July 1991 are also negative for treatment or diagnosis of an acquired psychiatric disorder. However, in a May 1991 Desert Storm/ Desert Shield deployment questionnaire, she did respond affirmatively to symptoms of nightmares, sleeping difficulty and recurring thoughts. On her separation examination, dated in May 1991, she also complained of “depression or excessive worry.” She also noted a history of treatment for “manic depression” at Hillcrest Hospital in Birmingham, Alabama in 1987. Nonetheless, psychiatric examination indicated a “normal” clinical evaluation of her psychiatric status. Private clinical records from Dr. G.A.G., dated from November 1991 to November 1992, are negative for complaint, treatment or diagnosis of an acquired psychiatric disorder. At a VA mental disorders examination, dated in May 1993, the Veteran complained of problems related to the normal stresses of daily living, but denied any mental or emotional problems. Her primary complaints concerned her physical ailments. Mental status examination found no objective evidence of any mental or emotional disorder. A June 1993 Persian Gulf Examination first records a “possible” diagnosis of PTSD. A VA outpatient treatment record, dated in July 1993, recorded a diagnosis of dysthymic disorder. At that time, she reported that, in approximately May of 1991, her brother had stolen money from her bank account and her fiancé was killed in a motor vehicle accident. Since that time, she reported problems with decreased social activities, increased consumption of alcohol, arguments, sleeping difficulties, fatigue and crying spells. She further reported problems with her supervisors during her tour of duty in the Persian Gulf, and a previous history of hospitalization for an overdose in 1988. At a VA PTSD examination, dated December 1994, the Veteran further reported symptoms of dreaming and crying spells during her tour of duty in the Persian Gulf. She indicated that her boyfriend had left her while overseas, and that he was killed in a motor vehicle accident shortly after his return. She had not dated or held steady employment since her return. Her complaints included depression since 1991, decreased memory, alienation, being misunderstood, short temper, worrying and poor functioning. On mental status examination, she manifested a sad effect with pessimistic outlook at future, very poor self- esteem, easy irritability, markedly diminished interest in pleasurable and other activities, anxious over eating with guilt and feelings of worthlessness. Mental status examination indicated a diagnosis of chronic, major depression. A December 1994 VA general medical examination indicated a diagnosis of PTSD with depression; and possible Persian Gulf War Syndrome. An April 1995 VA Persian Gulf War Clinic Consultation indicated a diagnosis of depression. A May 2005 VA examination report includes diagnoses of (1) major depressive disorder, (2) PTSD, and (3) crack dependence, which appeared to be in remission, but only for a brief while. An August 2009 report reflects that the Veteran was hospitalized for PTSD. A March 2010 report reflects that she was hospitalized for PTSD and substance abuse. A February 2011 correspondence from Lieutenant Colonel B.S.S. acknowledged the Veteran’s exposure to missile attacks and the fact that she was raped. His assessment of the Veteran was that she had PTSD, military sexual trauma, major depression, and mixed substance abuse (in partial remission). A November 2012 VA examination report reflects that the Veteran did not meet the DSM-IV criteria for PTSD. Instead, the examiner diagnosed bipolar disorder. The examiner found that there was no evidence that the Veteran’s current symptoms are related to service. An April 2016 report from Dr. O. A-S. includes an opinion that the Veteran has PTSD and that it is more likely than not due to military stressors. The examiner noted that there was no evidence that the Veteran’s current symptoms existed prior to service. She noted that the Veteran had a history of a mood disorder prior to service; but that her depression is more likely worsened beyond its normal course due to military service. A July 2017 VA examination report includes an opinion that the Veteran does not meet the DSM-V criteria for a diagnosis of PTSD. The examiner noted that the Veteran had an anxiety disorder with posttraumatic features. The examiner diagnosed the Veteran with an unspecified depressive disorder and cocaine use disorder that is less likely than not due to military service. She stated that the Veteran was hospitalized for psychiatric reasons prior to service; and that there are no mental health treatment records during active duty. She noted that the Veteran reported substance abuse approximately four years after discharge from service. A November 2017 correspondence from J.H.B. reflects that he was a fellow soldier who served with the Veteran in Saudi Arabia. He attested to the fact that the Veteran was a “strong, dedicated, and mission oriented soldier.” He stated that after being subjected to several SCUD missile attacks, the Veteran “never wavered in the face of danger!” However, he stated that shortly before the unit was to leave country, there was a coming home party that the Veteran did not attend. When J.H.B. asked her why she did not attend, she began crying uncontrollably. She said that this place had taken a toll on her, that she wanted to be left alone, and she became very standoff-ish. Immediately upon returning home, the Veteran was pulled aside and informed that her fiancé had been killed in a motor vehicle accident only a few days earlier. J.H.B. stated that he saw the Veteran again at a June 2017 reunion. She was not the same person he knew. She was angry, had turned to alcohol, and could not deal with day to day life. A December 2017 correspondence from Dr. S.C. reflects that he is a licensed psychologist working at the Gulf Coast Veterans Health Care System. He stated that he and other providers who have treated the Veteran since 2008 list PTSD as her diagnosis. He referenced the Veteran’s alleged sexual assault in which she was sodomized at knifepoint. He stated that since he began treating her, she has reported symptoms consistent with PTSD and consistent with someone who was raped. It was his impression that the Veteran suffers from PTSD with co-occurring substance abuse/dependency, likely secondary to her PTSD. It was his opinion that her PTSD resulted from and/or was worsened by her military sexual trauma experience during service. A December 2017 correspondence from Dr. E.H. reflects that he has been treating the Veteran at the Biloxi VA Mental Hygiene Clinic. He stated that he has diagnosed the Veteran with PTSD stemming from a military sexual assault. He believed that the Veteran was sincere in her presentation of symptoms. Analysis The Board notes that the Veteran’s reports of being subjected to SCUD missile attacks have been verified. The RO conceded this stressor in a December 2012 statement of the case. The Veteran’s second stressor (alleged military sexual assault) is not noted in the service treatment records. However, the Board notes that evidence of military sexual assault frequently does not appear in service treatment records insofar as victims often do not report the assault. Evidence of behavioral changes is not found in the Veteran’s NCO Evaluation Reports of December 1990, May 1991, December 1991, and December 1993 which show her to be a fully successful overall performer. However, the Board notes that she completed reports of medical history in February 1986 and September 1990, in which she stated that she was in good health. In May 1991, immediately after completing her deployment to Saudi Arabia, she completed another Report of Medical History in which she stated “POOR HEALTH. I am in poor health! Headaches, shoulders hurt, back hurts, bloody bowel movements, etc.” She reported suffering from frequent trouble sleeping and depression or excessive worry as well as numerous physical symptoms. Finally, the Board notes the November 2017 correspondence from J.H.B. who stated that the Veteran “never wavered in the face of danger!” during SCUD attacks, but who “broke down and started crying uncontrollably” upon leaving Saudi Arabia. Consequently, the Board finds that there is some evidence of behavioral changes during her deployment to Saudi Arabia. That, in conjunction with her credible testimony, and supportive correspondences from her treating doctors, is sufficient to verify her alleged military sexual assault. That the Veteran has a current psychiatric disability is not in dispute. Moreover, the RO conceded the Veteran’s first stressor, and the Board has found sufficient evidence of the Veteran’s second stressor. Consequently, the only issue remaining is whether there is a causal nexus between either of the Veteran’s in-service stressors, and her current disability. The Board notes that there are numerous conflicting opinions with regards to this issue. The Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional’s opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Adequate reasons and bases, in short, must be presented if the Board adopts one medical opinion over another. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-9 (2000). In some cases, the physician’s special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. In this case, the Board does not find adequate reasons or bases to find the positive nexus opinions or the negative nexus opinions to be more probative than the other. The November 2012 and July 2017 VA examiners concluded that the Veteran did not meet the DSM-IV or DSM-V criteria for PTSD. However, neither examiner stated which criteria the Veteran failed to meet. The November 2012 VA examiner left blank the entire section of the report dealing with PTSD Diagnostic Criteria. Likewise, the July 2017 VA examiner’s determination regarding PTSD appeared to be solely based on her conclusion that the Veteran provided invalid responses to the Trauma Symptoms Inventory-2 test; and that her responses were suggestive of exaggeration or feigning of symptoms. Moreover, even if the Veteran does not meet the DSM-V criteria for PTSD, the Veteran has been diagnosed with major depressive disorder; and the July 2017 examiner found that the Veteran “appeared to have an anxiety disorder with posttraumatic features.” The examiners that found that the Veteran’s current psychiatric disability is not related to service have based the opinion on a couple of factors. For example, the July 2017 VA examiner pointed out that the Veteran was hospitalized for psychiatric reasons prior to service. While the Veteran acknowledged, in a May 1991 Report of Medical History that she was treated for manic depression in 1987, her September 1990 enlistment examination yielded normal findings. Therefore, she is presumed to have been in sound condition. Moreover, as noted above, military personnel records reflect that the Veteran’s NCO Evaluation Reports of December 1990, May 1991, December 1991, and December 1993 reflect that she was a fully successful overall performer. To the extent that the examiner attributes the Veteran’s current psychiatric disability to a preexisting disability that was asymptomatic for several years, she does not explain her reasoning for such conclusion. The July 2017 VA examiner also appears to attribute the Veteran’s psychiatric disability to substance abuse. There is little doubt that the Veteran’s substance abuse contributed to her psychiatric disability. However, there is no evidence that the Veteran was engaged in substance abuse immediately following her separation from service in July 1991. To the contrary, the July 2017 acknowledged that the Veteran reported substance abuse approximately four years after discharge from service. However, the Veteran was being diagnosed with “possible” PTSD and a dysthymic disorder in 1993 (a mere two years after discharge from service). Finally, the Board notes that the July 2017 examination report is lacking in that it did not make any mention of the Veteran’s confirmed stressor involving being subjected to SCUD missile attacks. The Board notes that the service treatment records fail to reflect any indications of a psychiatric disability until the Veteran completed her deployment to Saudi Arabia, at which time she stated that “I am in poor health! Headaches, shoulders hurt, back hurts, bloody bowel movements, etc.” She reported suffering from frequent trouble sleeping and depression or excessive worry as well as numerous physical symptoms. (Continued on the next page)   In resolving the benefit of the doubt in favor of the Veteran, the Board finds that as to the issue of whether her current psychiatric disability began during or is causally related to service, the evidence is at least in equipoise. Consequently, service connection is warranted for an acquired psychiatric disability manifested by depression and anxiety with posttraumatic features. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Prem, Counsel