Citation Nr: A20007333 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 191015-37818 DATE: April 30, 2020 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) secondary to personal trauma is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from March 2006 to September 2006. The Veteran has service-connected disabilities based on her period of ACDUTRA, and therefore, has “veteran status” for this period of ACDUTRA. See Hill v. McDonald, 28 Vet. App. 243 (2016) (providing that "once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, veteran status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA."). The Board of Veterans’ Appeals (Board) notes that the rating decision on appeal was issued in September 2019. The Veteran timely appealed the September 2019 rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). Although the Veteran's claim has been brought before the Board under AMA, the Board finds that there is a pre-decisional duty to assist error. One of the effects of the AMA is to narrow the set of circumstances in which the Board must remand appeals to the AOJ for further development instead of immediately deciding them directly. Nevertheless, even under the AMA, the Board still has the duty to remand issues when necessary to correct a pre-decisional duty-to-assist error. See Pub L. No. 115-55 section (2)(d); 38 C.F.R. § 20.802 (a). 1. Service connection for posttraumatic stress disorder secondary to personal trauma. The Veteran contends that she was the victim of military sexual trauma (MST). More specifically, the Veteran alleges that she was assaulted which led to her current PTSD. The Veteran contends that she was assaulted by a recruiter from her unit in the locker room of a recruiting event and forcefully touched. The Veteran’s service treatment records (STRs) include a 2006 treatment note indicating an examination of the Veteran’s systems did not show psychological symptoms. Further, the treatment record indicates the Veteran’s depression was diagnosed as bipolar disorder in 2005, per the Veteran’s report. A March 2008 treatment note shows the Veteran reported a history of depression and possibly bipolar disorder diagnosed in her teens. A July 2008 treatment note shows the Veteran received treatment for adjustment disorder with depressed mood. The Veteran’s STRs do not indicate the Veteran was diagnosed with PTSD while in service or reported MST. A November 2017 intake assessment shows the Veteran identified several traumatic experiences growing up and repeated sexual harassment while in the military. In addition, in a November 2017 VA treatment note, the Veteran reported acute onset of chronic PTSD since childhood. The Veteran alleges she was repeatedly sexually harassed by a sergeant working with her in recruiting who would grab her buttocks. An April 2018 VA treatment note shows that she denied experiencing military sexual trauma in the past. In a September 2018 mental health note, authored by social worker J. H., LMSW, shows the Veteran reported experiencing unwanted sexual attention in the military by military personnel. The Veteran also reported PTSD symptoms related to domestic violence and experiencing anxiety her entire life. Additionally, she reported receiving outpatient mental health treatment. The social worker reported the Veteran’s diagnoses as PTSD, childhood trauma exacerbated by MST, and recurrent major depressive disorder. In a May 2019 statement in support of claim for PTSD, the Veteran stated that she told her husband, R.D. about the incident and requested a transfer to Georgia. The Veteran identified her ex-husband, fellow Veteran, R.D., as someone who can provide information regarding the incident but is now deceased. In a July 2019 Report of General Information, the Veteran reported she has had a hard time adjusting to life after the incident and it changed her life plans dramatically. Additionally, the Veteran reported suffering from depression, anxiety, social issues, and relationship issues, including trusting men and specifically military men. It was noted the Veteran was very emotional in discussing the assault/MST and said it happened so fast, it put her in shock. The Veteran stated she would forward more information on her claim, that she attended counseling in Clearwater Florida at the Clearwater Veteran Center, and that she had to go to Bay Pines emergency room for support due to stress from this incident. In September 2019 the Veteran was afforded a VA examination. The examiner indicated the Veteran had diagnoses of PTSD, polysubstance use, and attention deficit hyperactivity disorder (ADHD). The examiner noted the Veteran reported childhood trauma and attachment issues. In addition, the examiner noted the Veteran reported experiencing nightmares a few times a week related to sexual assault in service. The examiner reported one of the Veteran’s reported stressors is MST but there are no markers available to verify the Veteran’s self-report. However, the examiner reported this stressor meets criterion A to support a diagnosis of PTSD. Further, the examiner reported a diagnosis of PTSD was confirmed based on the Veteran's self-report and a review of records. The Veteran has a history of mental health concerns, including substance abuse and suicidal ideation and hospitalization, prior to service based on her self-report in records. Furthermore, the examiner stated based on the Veteran's self-report and review of records it appears she has a chronic pattern of mental health concerns including aggression, substance abuse and interpersonal difficulties since childhood. The examiner maintained that it would be speculative to create a nexus between the Veteran's PTSD and reported in-service MST due to lack of markers to support, and the presence of prior mental health concerns. The Board observes that the Veteran’s military personnel records show that she was transferred to Georgia in June 2007. In addition, the Veteran’s military personnel records submitted in October 2019, show the Veteran was discharged from the Georgia National Guard due to multiple unexcused absences during the period of October 2008 to December 2008. They further note that the Veteran was given an opportunity for rehabilitation and still did not report to drill. The RO denied the Veteran’s claim due to the absence of evidence supporting a conclusion of harassment or assault. The Veteran selected the Direct Review option when she opted into the Appeals Modernization Act (AMA) review system by timely submitting a VA Form 10182 (Decision Review Request: Board (Notice of Disagreement)) following the issuance of the September 2019 rating decision denying service connection. Accordingly, the Board's current review is limited to the evidence of record at the time of the September 2019 rating decision. Here, the evidence of record at the time the rating decision was issued did not include service personnel records documenting the Veteran’s unit transfer and dismissal from the National Guard due to unexcused absences. While the service personnel records were incorporated into the Veteran’s record after the close of the evidentiary period, the Veteran stated in her May 2019 statement in support of claim for PTSD prior to the close of the evidentiary period that she put in a transfer to the Georgia Guard following the incident. Thus, the Veteran’s statement put the AOJ on notice that there were additional service records available to assist the Veteran in corroborating her claim. Other evidence that could lead to the reasonable conclusion that the incident occurred would generally include military or civilian documentation of behavioral changes after the incident which could reasonably be expected from a person who had undergone a personal assault. Such changes include but are not limited to sudden requests for other duty assignments without justification, obsessive behavior (such as over, or under, eating), increased disrespect for military or civilian authority, etc. 38 C.F.R. § 3.304(f)(5). Thus, the claim must be remanded due to a pre-decisional duty to assist error. The examiner did not offer a nexus opinion because in her rationale, the Veteran did not have any markers of MST in her available records and due to the presence of prior mental health concerns it would be mere speculation to offer a nexus opinion. The Veteran’s service personnel records include corroboration of her transfer to the Georgia Guard and report multiple unexcused absences as documentation of behavioral changes. Accordingly, a remand is necessary to obtain another VA opinion. The matters are REMANDED for the following action: 1. Ask the September 2019 VA examiner to provide an addendum opinion in light of service personnel records added to the record since the prior opinion showing a transfer to the Georgia Guard and report of multiple unexcused absences. a. The examiner must opine whether any of the Veteran’s psychiatric diagnoses noted in her treatment records (bipolar disorder, adjustment disorder with depressed mood, PTSD, major depressive disorder, and attention deficit hyperactivity disorder) clearly and unmistakably preexisted the Veteran’s period of active duty for training from March 2006 to September 2006. b. If any of the Veteran’s psychiatric diagnoses noted in her treatment records (bipolar disorder, adjustment disorder with depressed mood, PTSD, major depressive disorder, and attention deficit hyperactivity disorder) did clearly and unmistakably preexist service, the examiner must opine whether such psychiatric condition clearly and unmistakably WAS NOT aggravated by service, including as due to military sexual trauma during her period of active duty for training from March 2006 to September 2006. c. If any of the Veteran’s psychiatric diagnoses noted in her treatment records (bipolar disorder, adjustment disorder with depressed mood, PTSD, major depressive disorder, and attention deficit hyperactivity disorder) DID NOT clearly and unmistakably preexist service, the examiner must opine whether such psychiatric condition is at least as likely as not related to an in-service injury, event, or disease, including military sexual trauma during her period of active duty for training from March 2006 to September 2006. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Daley, Law Clerk The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.