Citation Nr: 18158259 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 14-35 294 DATE: December 14, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, depression, and insomnia, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDING OF FACT An acquired psychiatric disorder is related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.125 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from May 1978 to July 1980. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2017, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2017). The Veteran was informed of the basis for the RO’s denial of her claims and she was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103 (2017). A transcript of the hearing is associated with the claims file. This matter was previously before the Board in June 2018, at which time the appeal was remanded to allow for AOJ consideration of additional evidence, as requested by the Veteran. The Veteran submitted additional medical evidence after the most recent Supplemental Statement of the Case and did not specify whether she wished to have the claim remanded to the RO for initial consideration of this evidence. An amendment to governing law (38 U.S.C. § 7105) stipulates that, with respect to claims for which a substantive appeal is filed on or after the date that is 180 days after the Aug. 6, 2012, date of the enactment of the amendment, i.e., February 2, 2013, such evidence shall be subject to initial review by the Board unless the claimant or the claimant’s representative, as the case may be, requests in writing that the agency of original jurisdiction initially review such evidence. As the current appeal was perfected by a substantive appeal received on September 25, 2014, the Board will consider this evidence in the first instance. Entitlement to service connection for an acquired psychiatric disorder. VA law provides that, for disability resulting from personal 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, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a),(b); Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection for posttraumatic stress disorder requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. 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; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a 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 behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(1)(5). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran testified that she experienced a personal assault while in the service, and that she did not report the assault officially, or describe the assault to anyone at the time. She attributes the onset of PTSD to this assault (Record 10/23/2017). Service treatment records reveal that the Veteran was treated for various pelvic/gynecologic issues during her time in service. Consistent with her testimony, the service treatment records do not provide details of the alleged assault. At service separation in July 1980, the Veteran reported that she had a history of, or current, nervous trouble, depression, or excessive worry. The report of medical examination performed on the same date reveals a normal psychiatric examination (Record 07/28/2010 at 94). Subsequently, she was discharged under honorable conditions for failure to maintain acceptable standards for retention. The Veteran was hospitalized in September 2011 for, among other things, treatment of PTSD symptoms (Record 10/28/2011). A December 15, 2010, VA Mental Health Note reveals the Veteran’s report of nightmares and intrusive thoughts, including about a childhood trauma. While, the report does not discuss the service stressor, the examiner listed military sexual trauma in a list of active psychiatric issues. Diagnoses included depression NOS, anxiety NOS, and PTSD (Record 12/30/2010). The report of a January 2011 VA PTSD Examination reveals the Veteran’s description of multiple stressors, before, during, and after service. She described a sexual assault during service. The examiner did not provide an Axis I diagnosis. The examiner explained that the Structured Inventory of Malingered Symptomatology was administered to the Veteran, which is a measure used for the detection of malingering across variety of clinical and forensic settings. The Veteran’s total score was elevated above the recommended cutoff score for the identification of suspected malingering. The Veteran endorsed a high frequency of symptoms that are highly atypical in patients with genuine psychiatric or cognitive disorders, raising the suspicion of malingering. As well, portions of the Veteran’s self-report were inconsistent with information available from her medical records. The examiner recommended further testing. She noted that she had no expertise in clinical interpretation of sexual trauma markers (Record 01/28/2011). The report of a November 2011 VA PTSD Examination reveals a diagnosis of PTSD based on DSM criteria and a finding that the Veteran’s depression and anxiety were part of the diagnosis of PTSD rather than separate diagnoses. The examiner declined to provide an opinion regarding the etiology of PTSD. She reasoned that the Veteran had reported that she was sexually abused in childhood and it was not clear whether she met criteria for PTSD in childhood or afterward. The Veteran stated that she had been physically abused repeatedly by first husband while she was in the military. It was not clear whether she may have developed PTSD from that experience. The examiner noted that the Veteran reported military sexual trauma for the first time only recently. She reported a strong family history of mental illness, suggesting that she may have genetic predisposition to psychiatric disorder. She has a history of using pain medications that are associated with psychiatric side-effects. The examiner noted the previous findings for malingering and found that the Veteran’s reliability as a historian was in question (Record 11/14/2011). The Veteran was admitted to the VA Domiciliary in September 2011. She attended therapy sessions for victims of military sexual trauma and PTSD (Record 02/25/2012). A November 2017 letter from the Veteran’s VA primary care provider notes that he had cared for the Veteran since January 2012. In that capacity, he had become familiar with her active duty medical history. He had reviewed her service treatment records and post-service treatment records. He stated “I am aware that the Veteran was assaulted during her active duty military service.” The physician stated that he believed her disability, diagnosed as PTSD/military sexual trauma, was caused/aggravated by these events during her military service. The primary condition the Veteran suffers from is PTSD from military sexual trauma. The physician stated that, in his opinion, the sexual trauma she experienced during her military service and noted in her record, caused or contributed to her diagnosis of PTSD/military sexual trauma (Record 12/13/2017). The Veteran submitted a Mental Health DBQ in October 2018, which was completed by a VA psychiatrist or psychologist. The report lists an Axis I diagnosis of PTSD based on the reported stressors of a personal assault in the military and having been given a hysterectomy in the military without her consent (Record 10/31/2018). After a review of all of the evidence, the Board finds that the existence of a current diagnosis of PTSD, and evidence relating that diagnosis to service are not in doubt. The question remaining for resolution is whether the Veteran’s in-service stressor can be corroborated. The Board finds that there is an approximate balance of the evidence regarding this question. While two VA examinations failed to provide an etiology opinion, and one also failed to provide a diagnosis, there is ample evidence since those examinations which establishes a current diagnosis of PTSD. Moreover, the November 2017 letter from the Veteran’s primary care provider clearly relates the diagnosis of PTSD to the Veteran’s military service, as do VA outpatient therapy records. Under VA law, a stressor involving personal assault can be confirmed by medical opinion evidence which considers and interprets a claimed stressor in light of evidence such as behavior changes in relation to the diagnosis. 38 C.F.R. § 3.304(f)(1)(5); Patton v. West, 12 Vet. App. 272 (1999). In this case, while the November 2017 letter opinion does not contain an explicit statement that the alleged stressor is consistent with military record, it is based on a review of the Veteran’s service records; and, that physician, who is familiar with the Veteran’s care, appears to endorse not only a role of causation/aggravation of PTSD by service, but also the occurrence of the stressor described by the Veteran. Consistent with this, the Veteran’s VA outpatient records reveal that her psychiatric care and counseling have been under programs for military sexual trauma victims. In addition to the claimed personal assault, the November 2011 VA examiner also identified spousal abuse during the Veteran’s service as a potential cause of, or contributor to, the development of PTSD. The Board notes that, although there has been some discussion of the Veteran being a poor historian and exaggerating symptoms, her account of the in-service personal assault has been consistent over the period since she first reported it in 2010. The number of individuals involved, the general timeframe, and the location have been consistently described. There was also a clear decrease in her performance in service with the result that she was discharged early for failure to maintain acceptable standards for retention. It remains unclear why she was unable to meet retention standards. Nevertheless, this evidence is consistent with her stressor account and does not contradict her account. While the Board could follow the guidance of the January 2011 VA examiner and order additional development to have the issue reviewed by someone with expertise in the clinical interpretation of sexual trauma markers, the Board finds that this is not necessary, as there is an approximate balance of the evidence regarding verification of an in-service stressor. With resolution of all reasonable doubt in favor of the claim, the Board finds that the Veteran’s PTSD stressor is substantiated. In sum, the Board finds that the Veteran has an acquired psychiatric disorder that is related to service. In light of these findings, the Board concludes that service connection for the claimed acquired psychiatric is warranted. As this represents the complete benefit sought on appeal with respect to this claim, the Board finds that there is no prejudice resulting from any deficiency in the duties to notify and assist. REASONS FOR REMAND Entitlement to TDIU is remanded. The Board has granted service connection for an acquired psychiatric disorder. After implementation of the Board’s decision and assignment of an initial disability rating, the issue of TDIU entitlement must be re-adjudicated. The matter is REMANDED for the following action: After implementing the Board’s decision to grant service connection for an acquired psychiatric disorder, re-adjudicated the issue of TDIU entitlement. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cramp