Citation Nr: 1815693 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 16-10 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: John P. Dorrity, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1975 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of hepatitis C is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran's PTSD was due to in-service personal assault. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, PTSD was incurred in service. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for PTSD, which represents a complete grant of the benefit sought on appeal. Thus, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159. Service connection is granted for disabilities resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order for a disorder to be service connected, there must be evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Service connection will also be presumed for certain chronic diseases, including a psychosis, if manifest to a compensable degree within one year after discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). At the outset, the Board is mindful that veterans claiming service connection for PTSD due to personal assault face unique problems documenting their claims. Since assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. See Proposed Rule, PTSD Based on Personal Assault, 65 Fed. Reg. 61132 (Oct. 16, 2000) ("Many incidents of in-service personal assault are not officially reported, and veterans may find it difficult to produce evidence to prove the occurrence of this type of stressor"). Accordingly, the regulations governing PTSD provide that where a claim is based on an 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. 38 C.F.R. § 3.304 (f)(5). In cases involving an allegation that PTSD is connected to military sexual assault, the Federal Circuit has held that "the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur." AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). The Veteran appears to have two main sets of stressful incidents in-service to which she contends her PTSD is related. Both of the stressful incidents relate to the alleged in-service military sexual trauma (MST). Turning to the evidence of record, the Veteran's service treatment records (STRs) are silent as to any complaints, symptoms, or treatment for PTSD. Additionally, the Veteran's personnel records are silent for any indicators that may reflect behavior changes. In a September 2015 mental health note, the VA psychiatrist diagnosed the Veteran with "PTSD-MST." In a separate September 2015 mental health outpatient note, the VA psychologist diagnosed the Veteran with PTSD related to MST. In a separate September 2015 VA mental health note, the VA psychologist noted the Veteran's report that she experienced flashbacks to two separate MST events In a December 2015 VA treatment record, the VA psychologist provided the Veteran's Axis I diagnosis to include PTSD. The Axis IV stressor attributed to the Veteran's Axis I diagnosis of PTSD was MST. At the January 2018 Board hearing, the Veteran testified that she was the victim of military sexual trauma twice during her service. The Veteran recalled the first incident occurred while she was in her barracks and another soldier came with a bottle of alcohol and forced himself on the Veteran after a few drinks. The Veteran stated that she was raped by this soldier and recalled that the soldier was a higher rank than her. The Veteran described the second incident where she went on a date to a club with a soldier. The Veteran described that he bought her a drink and next thing she recalled was waking up in bed next to him. In a February 2018 lay statement from the Veteran's friend, she stated that she spoke with the Veteran many times about the Veteran's in-service personal assaults and sexual trauma while the Veteran was still stationed abroad in Germany. The Veteran's friend recalled the Veteran telling her that she went on a date to a club with another soldier and after one round of drinks, the Veteran recalled waking up with the soldier next to her. The Veteran's friend stated that the Veteran described to her that she woke up feeling groggy, lightheaded, and disoriented. For the following reasons, the Board finds that the Veteran experienced an in-service personal assault that caused her currently diagnosed PTSD. First, the Veteran's VA treatment records show that she has current PTSD based on DSM-V criteria. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (finding that mental health professionals making a PTSD diagnosis "are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis"). Although the Veteran's STRs do not document any reported sexual assault allegation, the Board finds that the Veteran's reported in-service stressor due to MST is credible. As noted above, the current PTSD regulation relating to personal assault reflects VA's judgment that unreported personal assaults occur frequently in the military. The record does not include any contemporaneous corroborating evidence, such as police reports or medical examinations, however, the Veteran explained she did not report the sexual assault at the time, and this is consistent with the nature of personal assaults as indicated in VA regulations. In addition, the Board finds the lay statements from the Veteran, including reports to treatment providers, and the Veteran's friend, are significant competent and credible evidence in support of the Veteran's reported MST event. As such, the Board finds that there is sufficient evidence in the record to establish that the Veteran experienced a personal assault during service. With regard to the nexus opinions of record, the record contains several positive opinions, specifically, the diagnoses of PTSD based on the Veteran's report of the in-service MST. While the Board recognizes that the positive opinions contain little rationale provided by the VA psychologists and psychiatrists, this does not render the opinions inadequate. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record); Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant's psychological disorder must be considered as "evidence" of whether the disorder was incurred in service). Consequently, the Board finds that another remand would constitute the undertaking of development of evidence when the evidence present is sufficient to make a determination on the service connection claims, in violation of Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's PTSD is related to an in-service MST. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for PTSD is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. REMAND A November 2012 treatment record documents that the Veteran has a current diagnosis of hepatitis C. In the January 2018 Board hearing, the Veteran testified that she was diagnosed with the hepatitis C by a private physician in 2010. The Veteran is competent to do so. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis). The Veteran's representative stated that the Veteran received a blood transfusion during child birth while the Veteran was stationed abroad. The Veteran's representative indicated that prior to 1992, the donated blood was not tested for pathogens. The Veteran's representative also indicated that the Veteran could have been transmitted hepatitis C during one of her MST incidents during service. As such, the evidence of record suggests that the Veteran's hepatitis C may be related to in-service events or injuries; however, she has not been afforded a VA examination and the evidence of record is insufficient to decide the claim. Therefore, the Board finds that upon remand the Veteran should be afforded a VA examination to determine the nature and etiology of her hepatitis C. See 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2017); McLendon, 20 Vet. App. 79, 81 (2006). Accordingly, the claim for service connection for hepatitis C is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain records of treatment that the Veteran may have received at any VA health care facility since March 2017. All such available documents should be associated with the claims file. 2. After obtaining necessary authorization, obtain outstanding private treatment records pertaining to the Veteran's hepatitis C. 3. Schedule the Veteran for VA examination with appropriate health care professional to determine the nature and etiology of hepatitis C. The claims file, including a copy of this remand, must be made available to the examiner for review on conjunction with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms. The examiner should indicate whether the Veteran has had hepatitis C at any time since approximately 2012 when she filed the claim for service connection in this case. If so, the examiner should indicate whether it is at least as likely as not that the Veteran's hepatitis C had its onset during the Veteran's service or is otherwise related to service. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that her reports must be taken into account in formulating the requested opinions. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs