Citation Nr: 18121420 Decision Date: 07/26/18 Archive Date: 07/25/18 DOCKET NO. 15-02 634 DATE: July 26, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to service connection for hepatitis C is remanded. FINDINGS OF FACT 1. A psychiatric disorder was not noted in the medical examination report at the time the Veteran entered active duty service. 2. There is not clear and unmistakable evidence showing that the Veteran’s current psychiatric disorder preexisted service; nor is there clear and unmistakable evidence that this disability was not aggravated by service. 3. The evidence is at least evenly balanced as to whether the Veteran experienced symptoms of his current psychiatric disorder in service. CONCLUSIONS OF LAW 1. The Veteran is presumed to have been in sound condition when he was examined, accepted, and enrolled for service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 2. The record does not include clear and unmistakable evidence rebutting the presumption of soundness. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 3. With reasonable doubt resolved in the Veteran’s favor, his current psychiatric disorder was incurred in service. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.304(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1965 to June 1965. Entitlement to service connection for an acquired psychiatric disorder Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection “basically . . . means that . . . a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces . . . . This may be accomplished by affirmatively showing inception or aggravation during service . . .” 38 C.F.R. § 3.303(a). Although mental health professionals have disagreed on the nature of the Veteran’s specific diagnosis, it is clear from the medical evidence that a psychiatric disorder has been present during the relevant appeal period. According to a VA examination report, dated May 2018, the diagnoses were unspecified trauma and stressor related disorder and adjustment disorder with mixed anxiety and depression. According to a disability benefits questionnaire, dated July 2015, the Veteran had major depression and posttraumatic stress disorder (PTSD). This medical evidence satisfies the current disability requirement. The Veteran suggests that he is eligible for benefits because his current mental illness was caused by an in-service sexual assault, which he says occurred shortly before his discharge from the Navy. The Veteran’s treating mental health professionals have attributed current psychiatric symptoms to the in-service sexual assault and also to earlier sexual abuse which apparently occurred during his childhood and adolescence. The medical evidence that a current psychiatric disability may be the result of events which took place before the Veteran joined the Navy implicates the presumption of soundness. See Gilbert v. Shinseki, 26 Vet. App. 48, 54 (2012). Under this statutory presumption, except for defects, infirmities or disorders noted on an entrance examination, every veteran is generally presumed to have been in sound condition when examined, accepted and enrolled for service. 38 U.S.C. § 1111. “When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Because no psychiatric abnormalities were noted on this Veteran’s entrance examination report, the presumption of soundness applies to this case. In May 2017, the Board remanded this case with instructions to the Agency of Jurisdiction (AOJ) to arrange a new psychiatric examination. The examiner was asked to clarify the Veteran’s psychiatric diagnosis and to provide an opinion on certain questions which are relevant to whether the evidence in this case is sufficient to rebut the presumption of soundness. The requested examination took place in May 2018. The psychiatric history section of the report includes a description of the claimed in-service sexual assault as well as multiple incidents of sexual abuse in childhood. As noted, the examiner diagnosed unspecified trauma and stressor related disorder and adjustment disorder with mixed anxiety and depression. In a separate document, also dated May 2018, the examiner attempted to answer the questions concerning the presumption of soundness. In her opinion, the evidence did not clearly and unmistakably demonstrate that the Veteran’s psychiatric disorder existed before he joined the Navy. She explained that, without pre-service psychiatric records, she could not find that there was “unequivocal” evidence of a pre-existing psychiatric disorder. In the May 2018 opinion, the examiner addressed the post-service VA treatment records attributing PTSD both to a sexual assault during naval service and to sexual abuse during the Veteran’s childhood and adolescence. The examiner acknowledged mental health treatment records showing PTSD testing in September 2014. According to the examiner, this “valid testing offers some support to the Veteran’s reported trauma history, but it would be beyond mere speculation for the examiner to differentiate if this is related to his reports of childhood traumas and/or any alleged [military sexual trauma].” Nevertheless, the examiner gave an unfavorable answer to the following question: “Does the Veteran have a diagnosis of (a) acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the) illness during service?” According to her report, the reason for her negative answer was that she “cannot opine whether his current condition of unspecified trauma and stressor related disorder is the result of the alleged in-service stressor event and/or the historical accounts he has given to multiple providers of childhood traumas without resorting to mere speculation again as there are no markers found for the reported [military sexual trauma] and no prior records from childhood reported psychiatric treatment.” The examiner’s reference to “markers” apparently refers to 38 C.F.R. § 304(f). When a claimed stressor is not related to combat, a veteran’s lay testimony alone is not enough to support a finding that the claimed stressor actually occurred. See Moreau v. Brown, 9 Vet. App. 378, 395 (1996). The “markers” identified in the regulation are examples of the kind of evidence which, depending on the circumstances, may corroborate the occurrence of an in-service personal assault for the purposes of a claim for service connection for a psychiatric disorder. “Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for 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 social behavior changes.” 38 C.F.R. § 304(f)(5). The Veteran has submitted a letter from his brother, dated January 2015, which does describe personality changes shortly after the claimed assault. Before joining the Navy, the Veteran’s brother wrote that the Veteran enjoyed shopping and attending concerts: “When he came home from Boot Camp,” the letter continues, “he was so drifferent [sic], he never liked going to the Mall or concerts anymore. When I asked him why he did not like going any where any more, he would say it is none of your business.” Although the rationale for the May 2018 examiner’s unfavorable opinion stressed the absence of “markers” in the available service treatment and personnel records, “statements from family members” are specifically mentioned in 38 C.F.R. § 304(f)(5) as a potential source of evidence concerning post-assault behavioral changes. It is true that the letter from the Veteran’s brother might be entitled to more probative weight if the letter itself were contemporaneous with the date of the claimed assault or the Veteran’s discharge from active duty. But, under the circumstances of this case, it would not be reasonable to expect “markers” to appear in these records. In his hearing testimony, the Veteran explained that the reason for the brevity of his naval service was that, shortly after his enlistment, naval authorities decided that he did not meet he physical requirements for continued service because of a pre-service injury to his wrists. According to the Veteran, he was told that, because of the condition of his wrists, it had been a mistake to accept him into the Navy, and he would be honorably discharged at the earliest opportunity. He also said he was given three days of leave while the arrangements were made for his discharge and that it was during this period of leave that he was assaulted. This testimony is consistent with medical board findings dated June 1965. According to a statement from the Veteran, he reported the assault to a superior, but was told to “forget it [you’re] leaving in 3 days . . . .” Given the Veteran’s wrist injury, the brevity of his service, and the quickly approaching date of his discharge at the time of the assault, it would not be reasonable to expect the naval authorities to document personality or behavioral changes. Because he was on leave, it would likewise be unreasonable to expect any record of deteriorating work performance. Under these circumstances, the suggestion that a superior officer used the Veteran’s approaching discharge as an excuse to avoid the need for a potentially difficult and troubling investigation into his allegations is plausible. The Board has considered the possibility of remanding this claim for a new medical opinion based on the examiner’s statement that, without speculating, she could not offer an opinion as to whether the most likely cause of the Veteran’s current psychiatric symptoms was the in-service sexual assault or similar abuse in childhood. For at least three reasons, it is appropriate to grant the claim without further development. First, the examiner explained the reason she believed she could not answer the question without speculation. According to her, she would require pre-service psychiatric treatment records. Given the age of these records and the absence of any current information concerning the identity or location of their current custodian, further development is unlikely to be useful. The second reason for granting the claim now concerns the role of the presumption of soundness. Significantly, the examiner concluded that the evidence did not clearly and unmistakably prove that the current psychiatric disorder preexisted service – i.e., the evidence is insufficient to rebut the presumption of soundness. “[I]f the government fails to rebut the presumption of soundness under section [38 U.S.C. §] 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded.” Wagner, 370 F.3d at 1096. In this context, the examiner’s opinion that it is impossible to say whether a current disability is the result of childhood sexual abuse or the claimed in-service sexual assault essentially amounts to a conclusion that each of these potential causes is just as likely as the other. In other words, there is a 50 percent probability that current psychiatric symptoms are related to an in-service event and also a 50 percent probability that they are unrelated. Finally, the Board has a duty to avoid development which can have no purpose but to obtain evidence against the Veteran. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). For these reasons, the Board finds that the evidence is at least evenly balanced on the issue of whether the Veteran’s current psychiatric disorder is the result of traumatic events during active duty service. By law, the doubt resulting from this relative equipoise in the evidence is resolved in The Veteran's favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ . . ., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding . . . benefits.”). REASONS FOR REMAND Entitlement to service connection for hepatitis C is remanded. In May 2017, the Board decided that it needed a new medical opinion before deciding the claim for service connection for hepatitis C. The Board therefore ordered the AOJ to obtain a new opinion on the nature and etiology of this condition. On remand, the examiner was asked to specifically address the Veteran’s suggestion that he developed hepatitis C because an “air gun” was used to administer vaccinations to several recruits during service and to further address the possibility that the Veteran developed hepatitis C because of a tattoo he received shortly before his discharge from active duty. The requested opinion was received in April 2018. In the opinion of the examiner, post-service drug use, post-service tattoos, and post-service sexual activity were the most likely causes of the Veteran’s hepatitis C. According to the report, injection drug use with shared needles or other paraphernalia was the most common source of hepatitis C infection. The Veteran’s post-service VA treatment records describe a history of polysubstance abuse –marijuana, cocaine, alcohol, and tobacco. But it is unclear whether the Veteran’s drug use involved injection drug use with shared needles. Because the April 2018 medical opinion relied on this risk factor, the adequacy of the opinion remains unclear. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion may be inadequate if it rests on an inaccurate factual premise). For this reason, the AOJ must obtain an appropriate addendum opinion. The April 2018 opinion includes a thorough analysis of the potential role of tattoos and air gun vaccinations on the transmission of hepatitis C. But the record indicates another potential service-connected source of infection which has not yet been addressed in any medical opinion relevant to the hepatitis C claim. The April 2018 VA examiner wrote that hepatitis C can be transmitted through sexual activity and that “sex with trauma” is a factor associated with transmission of the disease. The Veteran has testified that he was raped by two men during his active duty service. Although he has not specifically claimed that this event caused him to develop hepatitis C, he is potentially eligible for service connection for this condition if hepatitis C is the result of any in-service event, including in-service sexual assault. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran’s VA treatment after March 2018. 2. Write to the Veteran and invite him to submit any information in his possession concerning the possibility that his post-service hepatitis C is related to post-service drug use. The AOJ should advise the Veteran that injection drug use with shared needles is among the leading causes of hepatitis C transmission and that his post-service medical records describe polysubstance abuse, but do not indicate whether or not this drug use involved injections or shared needles. The AOJ should further advise the Veteran that he is welcome to submit written statements or other evidence as to whether or not his post-service drug use included the use of injection drugs or shared needles. 3. After completing the development described above, to the extent possible, refer the claims file to the examiner who provided the April 2018 medical opinion for preparation of an addendum opinion on the nature and etiology of the Veteran’s hepatitis C. If the April 2018 examiner is unavailable for any reason, the requested opinion should be obtained from another qualified person. If the examiner cannot provide the requested opinion without a new examination, a new examination should be arranged. The examiner must then opine whether it is at least as likely as not (50 percent or more probability) that the Veteran’s hepatitis C was incurred in service or is the result of any disease, injury or event, including the use of an “air gun” on multiple recruits to administer vaccinations, the Veteran’s statement that he received a tattoo shortly before his discharge from active duty, and the Veteran’s statement that he was raped by two men shortly before his discharge from active duty. The examiner should fully explain the medical reasons for his or her opinion. If the examiner concludes that it is less likely than not that hepatitis C is related to service because of the Veteran’s post-service drug use is a more likely cause, the examiner should identify the source of his or her belief that the Veteran’s post-service drug use included the use of injection drugs and/or shared needles. The examiner should specifically address any statements submitted by the Veteran in response to the development described in part two of these instructions. The examiner should also address the timing of the Veteran’s initial diagnosis with hepatitis C which, according to the Veteran’s hearing testimony, occurred thirteen years prior to his Board hearing – i.e., in approximately 2004 –his statement that he was not tested for hepatitis C between June 1965 and 2004, and his suggestion that the disease was present, but undiagnosed, throughout this time period. The examiner is advised that the Veteran is competent to describe factual matters of which he has first-hand knowledge, and that the absence of service treatment records, standing alone, is insufficient to justify an unfavorable opinion. If there is a medical reason to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. The AOJ must ensure that the requested examination reports and/or medical opinions are in compliance with the directives of this remand. If any report is deficient in   any manner, the AOJ must implement corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs