Citation Nr: 21003150 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 20-12 140 DATE: January 19, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for insomnia is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The competent and credible evidence supports the Veteran’s claimed in-service stressor, military sexual trauma (MST). 2. The Veteran is diagnosed with PTSD as the result of MST. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, the appellant in this case, served on active duty from October 1969 to October 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). Procedural Background In a December 2017 rating decision, the RO, as pertinent here, denied service connection for sleep apnea and deferred its decision as to whether service connection for PTSD was warranted, but then denied service connection for PTSD in a January 2018 rating decision. See Rating Decisions dated December 28, 2017 and January 12, 2018. In September 2018, the RO construed the Veteran’s August 2018 supplemental claim seeking service connection for PTSD, insomnia, and sleep apnea as a “request for reconsideration” of the PTSD claim. In its January 2019 rating decision, the RO denied service connection for insomnia on the merits, and concluded that new and material evidence had not been submitted in support of the PTSD and sleep apnea claims, yet denied both claims on the merits. The Board notes that the November 2018 VA PTSD examination report addresses the etiology of the Veteran’s psychiatric disorders and sleep apnea. Therefore, new and material evidence was associated with the electronic claims file within one year of the December 2017 rating decision notice issued on January 2, 2018 and the January 2018 rating decision notice issued on January 16, 2018, and as acknowledged by the RO in correspondence dated August 2018, the January 2019 rating decision was issued on reconsideration of the Veteran’s PTSD claim. As such, the December 2017 and January 2018 rating decisions were not final, and the Veteran is not required to submit new and material evidence to reopen these claims. As such, the Board has adjudicated the PTSD claim as one for entitlement to service connection on the merits. Waiver In December 2020, the Veteran’s representative submitted additional evidence, including a privately obtained etiology opinion and medical articles indicating a medical link between PTSD and sleep disorders. As this evidence was received after the January 2020 Statement of the Case, the RO has not had the opportunity to consider it in adjudicating the Veteran’s claims. However, because the evidence was submitted after the filing of the March 2020 substantive appeal (VA Form 9), initial RO consideration of the evidence is automatically waived unless the Veteran or her representative requests in writing that the RO initially review such evidence. 38 U.S.C. § 7105(e) (2012). As the Veteran’s representative has expressly waived RO consideration of the additional evidence, see Correspondence from R. Chisholm dated December 31, 2020 at pg. 12, the Board may consider the additional evidence on appeal. Service Connection Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). PTSD requires the following three elements: (1) a current medical diagnosis of a psychiatric disorder, to include PTSD, (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). As the instant case was certified to the Board after August 4, 2014 diagnosis of PTSD must be made in accordance with the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.125 (2013). See 80 Fed. Reg. 14, 308 (March 19, 2015). In adjudicating a claim for service connection for a psychiatric disorder, to include PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran’s military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran “engaged in combat with the enemy.” Id. The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of a psychiatric disorder, to include PTSD, is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. The law provides that if a PTSD claim is based on an in-service personal assault, which includes military sexual trauma (MST), a veteran is required to provide corroborating evidence to substantiate the occurrence of the stressor. 38 C.F.R. § 3.304 (f)(5); Gallegos v. Peake, 22 Vet. App. 329 (2008). Examples of such corroborating evidence include, but are not limited to, records from law enforcement authorities, rape crises centers, mental health counseling centers, hospitals, or physicians; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these alternate sources. Examples of behavioral changes, or markers, that may constitute credible evidence of a stressor include, but are not limited to: 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 economic or social behavioral changes. 38 C.F.R. § 3.304(f)(5). In cases involving personal assault, the existence of a stressor in service does not have to be proven by the “preponderance of the evidence” because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b). YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). Additionally, under 38 C.F.R. § 3.304(f), VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for interpretation. Bradford v. Nicholson, 20 Vet. App. 200 (2006). Most significantly, for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. See id; Patton, 12 Vet. App. at 278. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran maintains that she currently has PTSD as a result of being sexually assaulted and harassed during service. See, e.g., Veteran’s statement received September 29, 2017. At the outset, the Board finds that the Veteran is currently diagnosed with unspecified depression with anxious distress, alcohol use disorder, and PTSD due to MST. Although a November 2018 VA examination was negative as to a PTSD diagnosis, the weight of the probative evidence establishes that the Veteran has a current PTSD diagnosis. The Veteran’s service treatment records (STRs) show that her pre-entrance examination in September 1969 was negative for psychiatric problems. In May 1984, the Veteran was seen at an Air Force base mental health clinic, at which time a physician noted that the Veteran had “unresolved feelings about an incident that occurred several years ago” that she refused to discuss, but found that her mental status was within normal limits, she had a “life circumstances problem,” and that she had no psychiatric difficulties. See Chronological Record of Medical Care entry dated May 23, 1984. Periodic examinations as well as her August 1989 retirement examination reflected no psychiatric abnormalities. Notably, the Veteran’s service personnel records, while generally indicating exemplary performance evaluations, reflect deteriorating performance in 1987 and 1988. See, e.g., Enlisted Evaluation Reports dated December 9, 1987 and February 9, 1988. In a statement submitted in September 2017, the Veteran submitted a statement describing how she was sexually during service. See Statement in Support of Claim for Service Connection for PTSD Secondary to Sexual Assault received September 29, 2017. A statement from the Veteran’s mother described how the Veteran’s demeanor changed after an assault during service, specifically that she became withdrawn, paranoid, untrusting, constantly angry, and sad. See Statement from R.H. received September 29, 2017. In conjunction with his claim, the Veteran was afforded a VA PTSD examination in 2018. The VA psychologist rendered two diagnoses: (1) Unspecified depression with anxious distress; and (2) Alcohol use disorder. The psychologist concluded that while the Veteran’s claimed stressors, sexual assault during service while on leave, and two molestations by a superiors during service were adequate to support a diagnosis of PTSD, she did not meet other criteria sufficient to render a diagnosis of PTSD pursuant to DSM-5 criterion. The psychologist concluded that the Veteran’s psychiatric disorders caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The psychologist opined that the Veteran’s unspecified depression with anxious distress and alcohol use disorder are less likely than not related to service, apparently offering the explanation that the Veteran’s service separation examination reflected that she was in excellent health and endorsed no mental health symptoms. See VA PTSD examination report dated November 6, 2018. The Board finds the November 2018 VA medical opinion inadequate for adjudication purposes. In this regard, the examiner failed to adequately consider the lay statements of record regarding the onset and continuity of the Veteran’s symptoms of a psychiatric disorder. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding that examination was inadequate where the examiner did not comment on the appellant’s report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). As the opinion is not adequate, it is not sufficient to serve as the basis of denial of entitlement to service connection and is of limited probative value. A statement by the Veteran dated August 2020 details assaults and harassment during service, specifically being assaulted while on leave in 1969, molestation by a superior in 1979, and sexual harassment in 1987. See Declaration of Veteran dated August 27, 2020. A second medical opinion, dated October 2020, was provided by private clinical psychologist, J.S., Ph.D. This psychologist disclosed that he has not provided psychiatric treatment services for the Veteran, but that he interviewed the Veteran by telephone and administered diagnostic testing during the interview. The psychologist reviewed the Veteran’s claims file, which includes his STRs, service personnel records, and private and VA treatment records in forming his medical opinion. Notably, the psychologist stated that he diagnosed the Veteran with PTSD using DSM-5 criteria, as well as Bulimia Nervosa and Alcohol Use Disorder, and opined that “it is at least as likely than not that [the Veteran]’s chronic PTSD is due to her in-service stressor(s) involving military sexual trauma (MST), with the Veteran’s MST(s) satisfying Criterion A for PTSD as a qualifying stressor.” See Opinion dated October 10, 2020 at pg. 9. As evidence of the in-service personal assault stressors, J.S. emphasized the Veteran’s May 1984 STR reflect that she refused to discuss unresolved feelings about an incident that occurred several years earlier, and service personnel records reflecting that her performance evaluations reflect a deterioration in the otherwise exemplary performance of her duties beginning in 1987. Id. at pg. 10. Additionally, J.S. opined that the Veteran’s Bulimia Nervosa likely is secondary to her chronic PTSD. Id. at pg. 16. The October 2020 medical opinion is competent, credible and probative: It was authored by a licensed psychologist who reviewed the Veteran’s claims file and was therefore familiar with the Veteran’s symptoms, diagnoses, and treatment of his mental disorders; the opinion was based on a review of the evidence of record as well as lay statements of the late Veteran. The opinion is consistent with the medical evidence of record, and contains clear conclusions with supporting data connected by a reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). While the probative value of the opinion is undermined to some degree because J.S. did not examine the Veteran in person; instead, conducting an interview by telephone and thus being unable to observe the Veteran’s demeanor, body language, facial reactions, etc., it is otherwise probative. Notably, there are no medical opinions or other competent medical evidence of record that weighs against the opinion of J.S. Accordingly, the Board finds the October 2020 medical opinion probative, competent and persuasive medical evidence in this case. Furthermore, the issues of whether the in-service stressors occurred and whether the Veteran’s PTSD is related to the stressor are in equipoise. The Veteran has, on multiple occasions, credibly and consistently, reported the incidents surrounding the personal assaults, including her written statements submitted in support of this claim. Notably, there is evidence of PTSD markers that corroborate the in-service stressor in the form of behavioral changes: deterioration in work performance as shown by the Veteran’s service personnel records, and the May 1984 STR reflecting “unresolved feelings about an incident that occurred several years ago.” Even assuming, as did the November 2018 VA examiner, that the Veteran’s service separation examination reflected no mental health symptoms, it cannot be denied that the STRs and service personnel records reflect the aforementioned markers. See 38 C.F.R. § 3.304(f)(5). Accordingly, the Board resolves any doubt in favor of the Veteran, and finds that the in-service stressors occurred, and that the Veteran’s PTSD is related to the stressors. 38 U.S.C. § 5107(b); Gilbert, supra. For the foregoing reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD, is warranted. 38 C.F.R. § 3.102. REASONS FOR REMAND VA is obligated to provide an examination and obtain a medical opinion in an initial claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service or with another service-connected disability, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). Here, while the post-service VA treatment records reflect a diagnosis of insomnia and medications prescribed for insomnia, and obstructive sleep apnea is identified as a recurrent medical problem, the treatment records include no objective diagnosis of sleep apnea as in, e.g., a sleep study or reflect the etiology of either disorder. Private psychologist J.S., who diagnosed PTSD in August 2020, also described sleep impairment symptoms that may be secondary to the service-connected PTSD. See Opinion dated October 10, 2020 at pg. 15. Attached to the opinion are articles and references thereto indicating a medical relationship between certain psychiatric disorders such as PTSD and sleep disorders. Although the Veteran’s representative suggests that the Board should grant service connection for insomnia and sleep apnea secondary to the Veteran’s service-connected PTSD, the Board may consider only independent medical evidence to support its findings, and may not substitute its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the claims are remanded to afford the Veteran a VA examination to determine the nature and etiology of any sleep disorders, including as due to the service-connected PTSD. See McLendon, supra. The matters are REMANDED for the following action: 1. Implement the Board’s decision herein granting service connection for an acquired psychiatric disorder, to include PTSD. 2. Ensure that all outstanding VA treatment records are associated with the claims file. 3. Thereafter, schedule the Veteran for a VA sleep disorders examination to determine the nature and etiology of her currently diagnosed sleep apnea and insomnia. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All clinical findings should be reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Confirm whether the Veteran has a current diagnosis of insomnia separate from the PTSD symptom of chronic sleep impairment, since the commencement of the claim period in September 2017. (b) If the Veteran does have a separate insomnia diagnosis, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s insomnia was CAUSED or AGGRAVATED by the service-connected acquired psychiatric disorders, to include PTSD. (c) If the answer to (b) is negative, but the Veteran does have a current diagnosis of insomnia, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the insomnia onset during active service or is otherwise related to it. (d) Confirm whether the Veteran has a current diagnosis of sleep apnea since the commencement of the claim period. (e) If the Veteran does have a current diagnosis of sleep apnea, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was CAUSED or AGGRAVATED by the service-connected acquired psychiatric disorders, to include PTSD. (f) If the answer to (e) is negative, but the Veteran does have a current diagnosis of sleep apnea, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the sleep apnea onset during active service or is otherwise related to it. *Regarding secondary service connection, any increase/aggravation is sufficient, permanent aggravation is NOT required. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) (permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease). *Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence, which is identified by VBMS labels and receipt dates in parenthesis: *The Board’s reference to this evidence in this context should not be construed as a determination of its credibility. (i) October 2020 medical opinion of private clinical psychologist J.S. (see VBMS entry with document type “Third Party Correspondence,” receipt date 12/31/2020, at PDF pages 13-30 of 98); and (ii) Articles indicating a medical relationship between certain psychiatric disorders and sleep disorders (see VBMS entry with document type “Third Party Correspondence,” receipt date 12/31/2020, at PDF pages 47-98 of 98). 4. Thereafter, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell, Associate Attorney 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.