Citation Nr: 21003147 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-11 710 DATE: January 19, 2021 ORDER Entitlement to service connection for lumbosacral strain (low back disability) is granted. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for right knee strain (right knee disability), to include as secondary to service-connected left knee disability, is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's low back disability is related to a period of ACDUTRA. 2. There is credible supporting evidence that the Veteran experienced military sexual trauma (MST) during a period of ACDUTRA. 3. The evidence is at least evenly balanced as to whether the diagnosed PTSD is related to the military MST stressor. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for low back disability are met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for PTSD due to MST stressor are met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f)(5). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was a member of an Army National Guard unit from June 2005 to October 2010. The Veteran’s DD Form 214 reflects active duty training (ACDUTRA) from August 1, 2006, to February 10, 2007. These matters initially came before the Board of Veterans’ Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for low back pain, right knee torn ligament, and bipolar disorder. In April 2012 the Veteran filed a notice of disagreement (NOD) and in December 2013 the RO issued a statement of the case (SOC). In February 2014 the Veteran filed a substantive appeal (via VA Form 9). In January 2018 the Board remanded the Veteran’s claim for further evidentiary development, specifically, to provide the Veteran with a medical examination to determine if the Veteran is entitled to PTSD/bipolar disorder, right knee disability, and low back disability. As will be discussed below, the RO did not substantially comply with the January 2018 remand instructions with regard to the Veteran’s right knee disability. See Stegall v. West, 11 Vet. App. 268 (1998). In Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), the Court held that a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Although the Veteran originally filed a claim for bipolar disorder, the Board will broaden the Veteran’s claim and consider all psychiatric diagnoses raised by the record. The Board notes that the RO had previously denied a separate claim for PTSD in an August 2016 rating decision which the Veteran did not appeal. Generally, where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. As the Veteran’s claim for bipolar disorder was ongoing during this time and as the Board had previously remanded the issue of PTSD, there is no harm adjudicating this issue on the merits. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in 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) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in 1. Low back disability Under 38 U.S.C. § 101(2), a "veteran" is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and; (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). For periods of ACDUTRA, service connection may be granted for disability resulting from injuries or diseases incurred or aggravated during such periods. For periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases. 38 U.S.C. § 101(22), (24); McManaway v. West, 13 Vet. App. 60, 67 (1999) (stating that the law "permits service connection for persons on inactive duty (training) only for injuries, not diseases, incurred or aggravated in line of duty"). Moreover, the advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on active duty for training and had not established any service-connected disabilities from that period). However, "once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, that status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA." Hill v. McDonald, 28 Vet. App. 243, 252 (2016). Thus, in order to establish veteran status with respect to a period of ACDUTRA or INACDUTRA, and therefore eligibility for service connection, the record must establish that a claimant was disabled or died due to a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA, or that he or she was disabled or died from an injury (or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident) incurred or aggravated in the line of duty during a period of INACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2),(24). The Veteran has achieved "veteran" status by showing she has disabilities due to disease or injury during her August 1, 2006, to February 10, 2007 period of ACDUTRA. Thus, the Veteran's period of service from August 1, 2006, to February 10, 2007, is considered to be active military, naval, or air service and she has therefore achieved "veteran" status by virtue of this period of service. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Moreover, this status applies to all disabilities claimed to have been incurred or aggravated during this period of service. Hill v. McDonald, 28 Vet. App. at 252 ("once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, that status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA"). At a February 2020 VA examination the Veteran was diagnosed with lumbosacral strain. Thus, a current low back disability has been demonstrated. The Veteran’s service treatment records (STRs) indicate that the Veteran received treatment for her back in October 2007. The physician noted that her lower back pain had lasted for 9 months after running. Although the Veteran was not on ACUDTRA in October 2007, this note indicates that the Veteran’s lower back began during a period of ACDUTRA. Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran’s current low back disability and the back injury during a period of ACDUTRA. A February 2020 VA examiner opined that the Veteran’s low back disability was at least as likely as not incurred in or caused by the claimed in-service injury, event, or disease. The VA examiner explained that the claimant had exam findings consistent with low back strain and lumbar radiculopathy in 2007 and 2010. As the February 2020 VA examiner explained the reasons for his conclusion based on an accurate characterization of the evidence of record. Therefore, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, there is no contrary medical opinion in the evidence of record. The evidence is thus at least evenly balanced as to whether the Veteran's diagnosed low back disability is related to an injury during a period of ACDUTRA. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for low back disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. PTSD There are particular requirements for establishing service connection for 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 generally requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (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). The Veteran identifies her PTSD stressor as a single MST episode which occurred in January 2007. The Veteran did not report the assault because she feared this incident would get her in trouble. Based on this report, the VA examiner diagnosed the Veteran with PTSD. Thus, the current medical diagnosis criteria for service connection has been established. The remaining question concerns whether there is credible supporting evidence for the military sexual trauma (MST) stressor and if so, whether there is a valid current PTSD diagnosis attributable to the MST stressor. Although there is nothing in the Veteran's service personnel and treatment records that specifically documents a sexual assault at any point during his active service, 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 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). The February 2020 VA examiner opined that the Veteran’s PTSD was at least likely as not related to an in-service stressor. The VA examiner explained that the Veteran lacked a mental health history prior to February 2007 and there was not an alternate cause in her record. In Menegassi v. Shinseki, 628 F.3d 1379 (Fed. Cir. 2011), the Federal Circuit held that under 38 C.F.R. § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether a claimed stressor occurred, and such opinion evidence should be weighed along with the other evidence of record in making this determination. Id. at 1382 & n. 1. As the February 2020 VA examiner diagnosed the Veteran with PTSD based upon the Veteran’s self-reported MST stressor there is some credible supporting evidence for MST under the relaxed PTSD stressor criteria for in-service personal assault. 38 C.F.R. § 3.304(f)(5). Additionally, shortly following the Veteran’s ACDUTRA the Veteran was diagnosed with bipolar disorder and borderline personality disorder, as indicated by a July 2008 STR. Although not dispositive, the fact that the Veteran sought psychiatric care following her in-service military sexual assault serves as competent medical evidence linking the Veteran's diagnosed PTSD to an in-service stressor. Given the circumstantial evidence of record that tends to corroborate the reported assault, the Board finds that the in-service stressor identified by the Veteran have been verified. See 38 C.F.R. § 3.304(f)(5). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's PTSD is related to 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. A February 2020 VA examiner diagnosed the Veteran with PTSD. Although the Veteran originally submitted a claim for bipolar disorder, the Board will broaden the initial claim and consider all psychiatric diagnoses raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). The Board notes that the benefit granted herein is service connection for an acquired psychiatric disorder diagnosed as PTSD and not bipolar disorder as claimed by the Veteran. Although the Federal Circuit "recognize[d] that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability," Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009), that is not the situation here with regard to the Veteran's psychiatric diagnoses. See id. (considering the possibility that bipolar disorder and PTSD did not constitute the same disability, but rejecting this argument based on the facts of that case). Rather, the evidence above does not reflect that the Veteran's psychiatric symptoms can be separated or clearly attributed to one or another of his psychiatric disorders, and they must be considered as a single psychiatric disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998)(when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities). Consequently, the Board need not remand any portion of the claim in order to separately address the issues of entitlement to service connection for PTSD. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). REASONS FOR REMAND Entitlement to service connection for right knee disability is remanded. The Veteran contends that her right knee disability is due to her military service. In an alternative theory, she contends that her right knee disability is secondary to her service-connected left knee disability. A February 2020 VA examiner opined that the Veteran's right knee disability was at least as likely as not incurred in or caused by the claimed injury, event, or illness. However, this opinion was based entirely on an injury that took place after the Veteran’s ACDUTRA. Additionally, the February 2020 VA examiner failed to provide an opinion addressing whether the Veteran's right knee disability was caused or aggravated by her service-connected left knee disability. 38 C.F.R. § 3.310(b); El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In light of the above, the Board finds the examiner's opinion is inadequate and another VA medical opinion is warranted. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: Request an opinion from an appropriate physician to determine the nature and etiology of the Veteran’s right knee disability. If an examination is deemed necessary, one should be conducted. The physician should opine: (a) Whether the right knee disability is related to or had its onset during the Veteran’s period of ACDUTRA (August 1, 2006 – October 2, 2007) and (b) Whether the right knee disability is either (i) caused or (ii) aggravated by service-connected left knee disability or any other service-connected disability. The physician should review the claims file prior to rendering the opinion and a complete rationale should accompany each opinion provided. The physician 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 opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, Associate 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.