Citation Nr: 18151458 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-15 144 DATE: November 20, 2018 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as due to military sexual trauma, is remanded. Entitlement to service connection for an acquired psychiatric disability, other than PTSD, is remanded. Entitlement to service connection for bilateral knee arthritis (claimed as degenerating knee joints), is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) (claimed as stomach bleeding and nervous stomach), to include as secondary to an acquired psychiatric disability, is remanded. Entitlement to service connection for chest pain, to include as secondary to an acquired psychiatric disability or GERD, is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from October 1979 to August 1993 and in the United States Army Reserve from August 1993 to August 2000. As an initial matter, the Veteran requested a hearing at a local VA office on her April 2015 appeal to the Board. In April 2018, the Veteran was sent notice that her hearing was scheduled for May 2018. She failed to report for this hearing without providing good cause. Thus, the Board considers the request for a hearing withdrawn. See 38 C.F.R. § 20.704 (d). With respect to all issues on appeal, remand is necessary to verify the Veteran’s periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). Service connection may be granted for a disability or injury incurred in or aggravated by “active military service.” 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The term “active military, naval, or air service” includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty. This term also includes any period of INACDUTRA during which the individual was disabled from an injury incurred or aggravated in line of duty. Thus, the Veteran may be service connected for a disorder if it is shown that this disorder had its onset during a period of ACDUTRA or is related to an injury incurred during a period of ACDUTRA or INACDUTRA. In this case, the Veteran reports that her psychiatric disability, knee impairment, chest pain, and GERD began during service. On remand, the RO should take steps to verify the Veteran’s periods of ACDUTRA and INACDUTRA. 1. Entitlement to service connection for PTSD and for an acquired psychiatric disorder other than PTSD The Veteran seeks service connection for an acquired psychiatric disorder, including PTSD, that is reportedly due to physical assault and mental abuse she suffered during service. In a March 2015 statement, she reports sexual assault from a Navy recruiter. She also reports being harassed by her boss at Fort Bragg, while serving in Korea, and while stationed at the Presidio in San Francisco. There are special rules regarding claims involving PTSD based upon personal assault. See 38 C.F.R. § 3.304 (f)(5). First, when a veteran’s claim is based, at least in part, on a reported in-service personal assault, VA has a heightened notification obligation whereby it must (1) notify him or her of alternative forms of evidence that may serve to corroborate his or her account, to include the opinion of a medical professional, (2) suggest other potential sources of evidence, and (3) assist the Veteran in submitting evidence from alternative sources by providing additional time for such submission after an adequate notice letter has been provided. See 38 C.F.R. § 3.304(f)(5); see also Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011); Gallegos v. Peake, 22 Vet. App. 329 (2008). Here, the notification letters sent to the Veteran in connection with her PTSD claim did not specifically discuss evidence that may be submitted in support of claims of PTSD based upon personal assault. Thus, on remand, the Veteran should be provided with additional notification and opportunity to provide information regarding the reported in-service assault. Additionally, steps should be taken to assist her in corroborating her reported stressors in accordance with the VA Adjudication Manual. In February 2015, the Veteran underwent a VA PTSD examination. The examiner found the Veteran’s psychiatric symptoms did not meet the criteria for PTSD under the requirements for stressors per the Diagnostic and Statistical Manual of Mental Disorders (DSM–5). However, the examiner diagnosed the Veteran with generalized anxiety disorder, panic disorder with agoraphobia, and major depressive disorder. The examiner did not provide a nexus opinion for any of the diagnosed psychiatric disabilities. Further, the examiner failed to address the relevant service treatment records (STRs), which show the Veteran was treated for chest palpitations that may have been due to stress and anxiety in February 199,3 and for depression and anxiety in February 1998. Accordingly, another examination is necessary to consider the relation of the Veteran’s acquired psychiatric disorder to service including periods of ACDUTRA. 2. Entitlement to service connection for bilateral knee arthritis (claimed as degenerating knee joints) is remanded. The Board finds that a medical examination is warranted. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. The Veteran alleges her bilateral knee arthritis is due to her military service. Medical records from the Veteran’s Army Reserve service show that the Veteran complained of a “trick” or locked knee upon examination in August 1997. Further, current VAMC treatment records indicate the Veteran has been treated for degenerative joint disease of the bilateral knees. See e.g. May 2013 treatment notes. Considering the Veteran has demonstrated both a current impairment and at least one in-service complaint of knee pain, the Board believes that a medical examination with opinions based on full consideration of the Veteran’s documented medical history and assertions, and supported by clearly stated rationale, would be helpful in resolving the service-connection claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 79. 3. Entitlement to service connection for GERD The Veteran has claimed service connection for GERD (claimed as stomach bleeding and a nervous stomach). The Board has recharacterized the issue pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 4 (2009). The service treatment records do not show any treatment for GERD. However, there are several notations of stomach problems during service, including diagnoses of gastroenteritis. See STRs dated May 1980, July 1981, September 1982, and February 1993. However, the Veteran did not endorse any stomach or intestinal problems on her exit examination in June 1993. Upon VA examination in June 2010, the examiner opined the Veteran’s in-service abdominal pain and acute gastritis had no relationship to the current GERD diagnosis and noted that there were no stomach problems noted upon separation. The examiner concluded the Veteran’s current GERD was not caused by military service. However, the Board finds this opinion is inadequate because the examiner did not consider all of the relevant STRs documenting treatment for stomach conditions as noted above. Further, an opinion is needed regarding the relationship between the Veteran’s GERD and the claimed acquired psychiatric disability. 4. Entitlement to service connection for chest pains The Veteran claims her current chest pains are related to service. A review of the STRs show upon separation from active service in June 1993 the Veteran endorsed chest pain. The examiner noted a history of shortness of breath with palpitations with symptoms of anxiety. Additionally, the Veteran was seen for pain and pressure in her chest during August 1997, during her period of reserve service. The Veteran was seen for a VA examination in June 2010. The examiner concluded that the current chest pains were most likely related to the GERD diagnosis, which is not currently service related. The examiner stated there was no evidence of a chronic cardiac problem or chronic cardiac symptoms. However, the examiner failed to consider the STRs documenting chest pain and failed to address a possible relationship between the Veteran’s chest pain and the claimed psychiatric disability. According, a remand is required to obtain an adequate opinion. The matters are REMANDED for the following actions: 1. Verify the Veteran’s periods of ACDUTRA and INACDUTRA. Please note that reports of retirement points do not contain the necessary information in this regard. 2. Send the Veteran a notification letter informing her of the information and evidence required to substantiate PTSD claims based on in-service personal assault or harassment in accordance with 38 U.S.C. § 5103 (a), 38 C.F.R. § 3.159 (b) and 38 C.F.R. § 3.304 (f)(5). Inclusion of VA Form 21-0781a, without any further explanation in the body of the notice letter as requested above, will not suffice. Further, notify the Veteran that she may submit lay statements from herself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of her in-service and post-service psychiatric symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Attempt to verify the Veteran’s reported stressors in accordance with the procedures set forth in the VA Adjudication Procedures Manual. 4. After the above development has been completed, obtain a new VA examination that addresses the nature and etiology of any currently diagnosed psychiatric disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion. The examiner should address the STRs documenting psychological treatment in June 1993 and February 1998. The examination report must include a discussion of the Veteran’s documented medical history and lay statements, including the Veteran’s March 2015 statement outlining her history of assault. The examiner should offer comments, an opinion, and a supporting rationale for the following: (a.) Identify all currently diagnosed psychiatric disabilities. In rendering each diagnosis, the examiner must state the consideration given to the Veteran’s account of the nature and etiology of her psychiatric symptoms and provide rationale if the examiner finds the Veteran’s description to be unreliable. (b.) For each diagnosed disability, opine as to whether it is at least as likely as not (50 percent probability or greater) that such disability was incurred in or aggravated by the Veteran’s active service, to include periods of ACDUTRA and INACUDTRA, including the Veteran’s reported personal assault. 5. After the above development has been completed, schedule an appropriate VA examination to determine the nature, extent, onset, and etiology of her bilateral knee conditions. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should address the complaints of knee pain during the August 1997 examination during reserve service. The examiner is requested to provide the following information: (a.) The examiner should identify all currently diagnosed knee impairments. (b.) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s knee conditions are due to or otherwise causally or etiologically related to her active service, to include periods of ACDUTRA 6. After the above development has been completed, schedule an appropriate VA examination to determine the nature and etiology of any currently diagnosed gastrointestinal condition. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should address the treatment for stomach issues during service to include treatment in May 1980, July 1981, September 1982, and February 1993. The examiner is requested to provide the following information: (a.) The examiner should identify all currently diagnosed gastrointestinal conditions. (b.) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that any currently diagnosed gastrointestinal condition is due to or otherwise causally or etiologically related to her military service, to include periods of ACDUTRA. (c.) If service connection for a psychiatric disability is warranted, the examiner should state whether it is at least as likely as not that the Veteran’s GERD is caused or aggravated by any currently diagnosed psychiatric disability. In this regard, the examiner should note that a rationale is required for both causation and aggravation. 7. The Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of her chest pain. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should address the treatment for chest pains during service, to include treatment in June 1993 and August 1997. The examiner is requested to provide the following information: (a.) The examiner should identify all currently diagnosed impairments manifested by chest pain. (b.) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s chest pain is due to or otherwise causally or etiologically related to her military service, to include periods of ACDUTRA. (c.) If service connection for a gastrointestinal condition or a psychiatric disability is warranted, the examiner should state whether it is at least as likely as not that the Veteran’s chest pain is caused or aggravated by the gastrointestinal condition or psychiatric disability. In this regard, the examiner should note that a rationale is required for both causation and aggravation. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel