Citation Nr: 21002665 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-39 779A DATE: January 14, 2021 ORDER Service connection for a psychiatric disability is granted. Service connection for a low back disability is granted. REMANDED Service connection for sinusitis or allergies is remanded. Service connection for headaches is remanded. FINDINGS OF FACT 1. The Veteran’s account of an in-service stressor is credible and consistent with the evidence of record. 2. The probative evidence of record demonstrates that the Veteran has a current diagnosis of a psychiatric disability, which as likely as not had its onset during or is otherwise related to a stressor in her active duty service. 3. The probative evidence of record is at least in equipoise as to whether the Veteran’s low back disability was caused by her service-connected right knee disability. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for a psychiatric disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1984 to November 1990.  These matters are on appeal from November 2015, December 2015, and June 2016 rating decisions.  In March 2020, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. Unfortunately, a written transcript is not available due to an audio malfunction on the hearing recording. The Veteran was informed of the malfunction in an October 2020 letter and provided an opportunity to request a new hearing in accordance with 38 C.F.R. § 20.715 (2020). Because the Veteran did not respond to this letter, the Board will assume that the Veteran does not desire another hearing. The Veteran’s claims for service connection for posttraumatic stress disorder (PTSD), bipolar disorder, and manic depression have been recharacterized as a psychiatric disability, to include PTSD, bipolar disorder, and manic depression.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Psychiatric Disability The Veteran contends that she has a psychiatric disability as a result of sexual assault during her active duty service. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128 (1997). There are special considerations for PTSD claims predicated on personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than a veteran’s service records which may corroborate his or her 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. 38 C.F.R. § 3.304(f)(5). 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). VA will not deny a PTSD 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. In addition, 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)(5). In a February 2016 statement, the Veteran reported that she was raped by another service member in January 1985, while en route to Korea. She also reported that, one to two weeks after her arrival in Korea, she sought treatment “and found out he had given me an STD.” A February 1985 service treatment record notes the Veteran’s report of vaginal discharge, with a diagnosis of vaginitis. At the time, she reported her last sexual experience as in July 1984. In her July 2016 Notice of Disagreement (NOD), the Veteran clarified that she said this because rape does not fit within that definition. Although the Veteran requested a separation examination in November 1990, there is nothing in the record to indicate that she was afforded one. The Veteran has submitted a February 2016 statement from a friend who met her approximately eight months after her separation from active duty service and who reported that she “shared with me about a rape that happened to her just 6 months into the military when she was on her way to Korea.” In March 2016, the Veteran submitted an undated statement from her aunt, who reported that she noticed significant changes in the Veteran’s behavior when she returned from Korea and that, due to her own experience as a rape survivor, she recognized the similarity of the behavioral changes to those in her own past and asked what had happened. She reported that the Veteran told her about the rape at that time. The Veteran was afforded a VA examination in June 2016. The clinician found that there were “no markers to substantiate MST.” The clinician later added that there was no evidence of MST “based on STR’s.” This is not the correct standard for evidence of military sexual trauma; VA regulations specifically allow for evidence “from sources other than the veteran’s service records,” including statements from family members. 38 C.F.R. § 3.304(f)(5). The clinician did not address Veteran’s aunt’s statement. For these reasons, the June 2016 clinician’s opinion is inadequate. The Veteran has also submitted a June 2016 statement by a different aunt regarding changes in her behavior after her active duty service. The Veteran has also submitted a June 2016 statement by a private treatment provider who diagnosed bipolar disorder and opined that it was more than 51% likely due to her active duty service because “[b]efore the service she didn’t have any problems.” The Veteran was afforded an additional VA examination in June 2017. This clinician also found that there were “no markers” of military sexual trauma but did not discuss the Veteran’s aunt’s statement. For this reason, the June 2017 clinician’s opinion is also inadequate. An August 2017 VA treatment record notes diagnoses of major depressive disorder and PTSD, both “exacerbated by MST.” A September 2017 VA treatment record notes a psychiatrist’s diagnoses of major depressive disorder and generalized anxiety disorder, “[b]oth exacerbated by MST.” The Veteran has also submitted a June 2019 medical opinion by her VA treatment provider, who described in detail how the Veteran’s symptoms met each of the diagnostic criteria for PTSD and identified the stressor as her military sexual trauma. Although the diagnoses vary, the record contains multiple medical opinions attributing the Veteran’s psychiatric disability to her military sexual trauma and no adequate medical opinions to the contrary. The Veteran’s testimony regarding the circumstances of her military sexual trauma is credible and her aunt’s statement is credible supporting evidence that the in-service stressor occurred. In light of the totality of the circumstances, and giving the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that sexual trauma occurred during the Veteran’s active duty service and that the Veteran has a psychiatric disability as a result. As the reasonable doubt created by the evidence must be resolved in favor of the Veteran, entitlement to service connection for a psychiatric disability is warranted. 2. Low Back Disability The Veteran contends that her low back disability is etiologically related to her active duty service. Specifically, she contends that her service-connected right knee disability caused or aggravated her low back disability. The Veteran was afforded a VA examination in December 2015. The clinician opined that it was less likely than not that the Veteran’s low back disability was proximately due to or the result of her service-connected right knee disability, but did not provide an opinion with regard to aggravation. The December 2015 opinion is therefore inadequate. The Veteran has submitted an April 2018 medical opinion by a private clinician, who noted treatment records discussing an antalgic gait and use of a cane due to the Veteran’s right knee condition. The clinician found that walking with an altered gait “puts an increased amount of stress and added pressure on the spine” and that the “altered gait caused the condition.” The April 2018 private clinician’s opinion is favorable to the Veteran’s claim and contains a thorough rationale. The record contains no adequate medical opinion to the contrary. In light of the totality of the circumstances, and after resolving all reasonable doubt in her favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s low back disability was caused by her service-connected right knee disability. Accordingly, the Board finds that granting service connection for a low back disability is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). REASONS FOR REMAND 1. Service connection for sinusitis or allergies is remanded. VA must provide an examination with regard to a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury or event, but there is insufficient information to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). In her August 2017 substantive appeal (VA Form 9), the Veteran reported that her sinusitis symptoms were exacerbated during her service in Germany and that they have continued and worsened since then. 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. Id., at 83. This evidence meets that threshold, and an examination is necessary. In addition, every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111 (2012). Only such conditions as are recorded in examination reports are to be considered as “noted.” 38 C.F.R. § 3.304. A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). At the time of the Veteran’s January 1984 entrance examination, the examining clinician found the Veteran’s nose and sinuses to be normal, but she reported a history of sinusitis. The presumption of soundness therefore attaches with respect to this issue. The question before the Board, then, is whether clear and unmistakable evidence demonstrates that the Veteran’s sinusitis or allergies existed before entry and were not aggravated by such service, so as to rebut the presumption of soundness. The examination on remand should include opinions with regard to this question. 2. Service connection for headaches is remanded. In a December 2015 statement, the Veteran reported that her headaches resumed during her active duty service. In her August 2017 substantive appeal (VA Form 9), the Veteran reported that her headaches were exacerbated by stress during her active duty service and continued to the present. Because this evidence meets the low 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, an examination is necessary. McClendon, 20 Vet. App. at 83. In addition, at the time of the Veteran’s January 1984 entrance examination, the Veteran reported a history of frequent or severe headaches but the examining clinician found “no more headaches at present.” The presumption of soundness therefore attaches with respect to this issue. The question before the Board, then, is whether clear and unmistakable evidence demonstrates that the Veteran’s headaches existed before entry and were not aggravated by such service, so as to rebut the presumption of soundness. The examination on remand should include opinions with regard to this question. The matters are REMANDED for the following action: 1. Schedule the Veteran for a physical or telehealth examination with an appropriate clinician for her sinusitis or allergies. The entire claims file and a copy of this remand must be made available to the clinician for review. The clinician must provide opinions as to the following: a) Whether the Veteran’s sinusitis or allergies clearly and unmistakably existed prior to her active duty service. b) If the answer to a) is yes, whether the Veteran’s sinusitis or allergies were clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. c) If the answer to a) or b) is no, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sinusitis or allergies began during active service or are related to an incident of service. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The Veteran’s January 1984 entrance examination, during which she reported a history of sinusitis but the examining clinician found her nose and sinuses to be normal. b. A July 1985 service treatment record noting a congested sinus wall. c. A VA examination from March 1991, four months after the Veteran’s separation from active duty service, in which the examining clinician noted that the Veteran had hay fever. d. A March 2015 statement by the Veteran’s private treatment provider regarding her history of multiple allergies. e. The Veteran’s December 2015 statement regarding the onset of her allergy symptoms. f. A November 2016 private examination report (using a VA disability benefits questionnaire) diagnosing chronic sinusitis, allergic rhinitis, and turbinate hypertrophy. g. The Veteran’s statement in her October 2016 Notice of Disagreement (NOD) regarding the onset and continuity of her symptoms. h. The Veteran’s statement in her August 2017 substantive appeal (VA Form 9) regarding the onset and continuity of her symptoms. The clinician is advised that, although the Veteran requested a separation examination in November 1990, there is nothing in the record to indicate that she was afforded a separation examination. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Schedule the Veteran for a physical or telehealth examination with an appropriate clinician for her headaches. The entire claims file and a copy of this remand must be made available to the clinician for review. The clinician must provide opinions as to the following: a) Whether the Veteran’s headaches clearly and unmistakably existed prior to her active duty service. b) If the answer to a) is yes, whether the Veteran’s headaches were clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. c) If the answer to a) or b) is no, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headaches began during active service or are related to an incident of service. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The Veteran’s January 1984 entrance examination, during which she reported a history of frequent or severe headaches but the examining clinician found “no more headaches at present.” b. A July 1985 service treatment record noting the Veteran’s report of a headache. c. An August 1987 service treatment record noting the Veteran’s report of a headache. d. The Veteran’s December 2015 statement regarding the resumption of her headaches. e. The Veteran’s statement in her August 2017 substantive appeal (VA Form 9) regarding the onset and continuity of her symptoms. The clinician is advised that, although the Veteran requested a separation examination in November 1990, there is nothing in the record to indicate that she was afforded a separation examination. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Ensure that the directives specified in this remand have been implemented.  If they have not, appropriate corrective action must be undertaken before readjudication.  Stegall v. West, 11 Vet. App. 268 (1998).   4. Then, readjudicate the claims.  If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, Counsel 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.