Citation Nr: 21064652 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-46 600 DATE: October 21, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD), due to military sexual trauma (MST), is granted. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's diagnosed PTSD is at least as likely as not causally related to an in-service MST stressor. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) in the United States Air Force from February 1987 to August 1987 and ACDUTRA in the United States Army from May 1990 to August 1990, with additional periods of service in the Army Reserves and National Guard. By way of background, these matters come before the Board of Veterans' Appeals (Board) on appeal from November and December 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claims were previously before the Board most recently in December 2019, at which time the Board remanded the matters for further development. Following review of the claims file, the Board finds that there has been substantial compliance with the terms of its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Lastly, the Board notes that the Veteran submitted additional evidence subsequent to the issuance of the June 2020 Supplemental Statement of the Case readjudicating the claims on appeal. Although the Veteran has not specifically waived initial review of this newly-submitted evidence by the Agency of Original Jurisdiction (AOJ), such a waiver is presumed, as the Veteran submitted his substantive appeal after February 2, 2013. See, e.g., Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7015(e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of, or subsequent to, the submission of a substantive appeal where such appeal is filed on or after February 2, 2013). As such, the Board may properly consider the evidence at this time. 1. Entitlement to service connection for PTSD Generally, to establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, typically established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a). If a PTSD claim is based on military sexual trauma (MST) or personal assault in service, evidence from sources other than the Veteran's records may corroborate the Veteran's account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to, the following: 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. Id. Evidence of behavioral changes following the claimed assault is also relevant evidence that may be found in the mentioned sources. Id. Examples of behavior changes that may constitute credible evidence of a stressor include, but are not limited to, the following: a request for a transfer to another 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. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). Here, the Veteran contends that he incurred PTSD as a result of a series of incidents involving military sexual trauma (MST) perpetrated by a fellow service-member. He cites the dates of the claimed stressor events as approximately May 1987. See, e.g., Statement in Support of Claim for PTSD, dated August 18, 2016. He has relayed that he did not report the MST events until many years after his separation from service. Service personnel records from the Veteran's Air Force training period reflect a pattern of disciplinary violations, including tardiness and a disrespectful attitude expressed toward superior officers, beginning in May 1987. At the time, the Veteran attributed his poor behavior to family tragedies that had recently transpired. Personnel records from subsequent years, in both the Army and the National Guard, demonstrate increasingly severe behavioral problems, escalating to the Veteran's testing positive for a prohibited substance. As an initial matter, the Board observes that the Veteran has been diagnosed with PTSD (consistent with the requirements of the DSM-5) by multiple clinicians. See VA examinations dated November 7, 2016 and April 17, 2020; see also private psychiatric report dated August 13, 2020. Thus, a current diagnosis of PTSD is supported by the medical evidence of record. Concerning an in-service stressor, the Veteran has outlined a series of events during his military service wherein he experienced MST. The Board notes that a psychiatric evaluation of the Veteran revealed episodes of childhood trauma. To that end, the November 2016 examiner concluded that the Veteran's PTSD is attributable to such stressors and therefore pre-existed his military service. However, the Veteran's entrance examination does not document any formal psychiatric diagnoses; and in the absence of clear and convincing evidence to the contrary, the Veteran is presumed to have been sound upon entry. 38 U.S.C. §§ 1111, 1132, 1137. Significantly, VA obtained a medical opinion addressing whether the Veteran's PTSD clearly and unmistakably pre-existed his military service; and a VA psychologist concluded that the record did not support a finding that the Veteran experienced PTSD prior to his enlistment. See medical opinion dated September 4, 2019. Thus, the Veteran is presumed sound on entry. The question remaining before the Board is whether his diagnosed PTSD is related to service, specifically a claimed MST stressor. In September 2019, a VA psychologist furnished a negative opinion to this point. She reasoned that the Veteran's diagnosis of PTSD was a result of multiple traumatic events, none of which occurred during his military service, concluding that "there is not overwhelming evidence of record" that an inservice stressor occurred. She therefore determined that the Veteran's PTSD is less likely than not related to his service. See medical opinion dated September 4, 2019. In April 2020, another VA psychologist opined that the Veteran's PTSD was less likely than not incurred in service or was otherwise caused by the claimed inservice stressor events. See medical opinion dated April 17, 2020. Similar to the previous VA examiner, he reasoned that the Veteran's PTSD "initially developed in response to traumatic stressors [the Veteran] experienced during his childhood and adolescence" and may have been exacerbated by post-military events. The psychologist found it less likely than not that the claimed inservice MST stressor occurred. However, the Veteran has provided VA with a detailed psychological report from a licensed clinical psychologist who personally reviewed the Veteran's claims file and evaluated the Veteran. Based on this, the private psychologist opined that the Veteran's inservice MST stressor events occurred. See private medical opinion dated August 13, 2020. Accordingly, she determined that the Veteran's PTSD is at least as likely as not related to his military service, specifically, to the reported inservice MST stressors. The Board finds the opinions equally probative as to the occurrence of the inservice MST stressors. Although there are multiple negative opinions of record, such opinions are based primarily on a lack of evidence in the record corroborating the Veteran's account of the inservice MST. Notably, the Veteran has relayed that he did not report the MST during service but, instead, only began to confide in others his traumatic experiences many years after they occurred. The positive opinion provided by the private psychologist, on the other hand, was supported by a well-reasoned rationale for her conclusion that the Veteran's account of MST is credible, including a comparison of the Veteran's behavior before and after the reported stressor events. Thus, as the evidence both for and against the claimed inservice stressor event is in relative equipoise, the Board finds that, resolving all reasonable doubt in favor of the Veteran, the record contains sufficient evidence to establish that the Veteran's reported in-service stressor occurred. See 38 U.S.C. § 5107(b). Finally, with respect to a nexus between the Veteran's PTSD and the inservice MST, the Board finds that, affording the Veteran the benefit of the doubt, the evidentiary record demonstrates it is at least as likely as not that the Veteran's PTSD is causally related to the inservice stressor events. In reaching this determination, the Board observes that the negative nexus opinions rely on the examiners' determination that the reported inservice MST did not occur, which is contrary to the Board's above finding. Because the positive private nexus opinion is bolstered by a thorough and well-reasoned rationale, as noted above, including the conclusion that the inservice stressor events occurred, the Board finds that the evidence is in equipoise as to whether the Veteran's PTSD is related to his military service, including inservice stressors involving MST. Accordingly, resolving reasonable doubt in favor of the Veteran, entitlement to service connection for PTSD based on inservice MST is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS FOR REMAND 1. Entitlement to service connection for hepatitis C is remanded. The Veteran contends that his diagnosis of hepatitis C is etiologically related to his military service, specifically, to intravenous drug use employed as a coping mechanism for his claimed in-service PTSD. In light of the grant of service connection for PTSD above, the Board finds that additional development is warranted. For claims filed after October 31, 1990, service connection on a direct incurrence basis cannot be granted for disabilities resulting from abuse of alcohol or drugs. See 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301. Further, compensation cannot be awarded pursuant to 38 U.S.C. §1110 and 38C.F.R. §105(a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). However, service connection for compensation may be established for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. In addition, veterans may recover only if they can adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder. Id. at 1381. Given his contention that he contracted hepatitis C from drug use, which he asserts was a coping mechanism for his PTSD, a medical opinion addressing this assertion must be obtained before the Board can render a well-informed decision on the merits of the appeal. 2. Entitlement to service connection for OSA is remanded. The Veteran seeks service connection for OSA, which he contends is caused or aggravated by his PTSD. In light of the grant of service connection for PTSD above, the Board finds that an addendum medical opinion should be procured, addressing whether the Veteran's service-connected PTSD caused or aggravated his OSA, to include obesity as an intermediate step. See VA Gen. Coun. Prec. 1-2017 (Jan. 6, 2017); 38 U.S.C. §§ 1110, 1131; Walsh v. Wilkie, 32 Vet. App. 300 (2020) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis). 3. Entitlement to service connection for hypertension is remanded. The Veteran seeks service connection for hypertension, which he maintains was caused by his PTSD. In light of the award of service connection for PTSD granted herein, and considering the Veteran's statements in a November 2016 VA examination, the Board finds that further evidentiary development is necessary before the claim can be properly adjudicated on its merits. To that end, the Veteran should be afforded a new VA examination for his hypertension; and a new medical opinion addressing whether the Veteran's service-connected PTSD caused or aggravated his hypertension, to include obesity as an intermediate step, should be procured. Accordingly, the matters are REMANDED for the following actions: 1. Schedule the Veteran for VA examinations with physicians (M.D.s) of appropriate expertise, to assess the nature and etiology of his claimed disabilities, including: (i) hepatitis C; (ii) obstructive sleep apnea; and (iii) hypertension. The respective examiner(s) must review the Veteran's entire claims file, to include a copy of this REMAND, and such review must be noted in the report. A complete history of symptoms should be elicited from the Veteran. Thereafter, the respective examiner(s) is requested to provide an opinion addressing the following: Hepatitis C: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hepatitis C was caused or aggravated by his PTSD, to include intravenous drug use as a means of coping with PTSD symptoms? Obstructive Sleep Apnea: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's OSA was caused or aggravated by his PTSD? In providing this opinion, the examiner's attention is directed to the chronic sleep impairment and restlessness the Veteran's PTSD has been observed to cause. (b.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran's PTSD caused him to become obese? In responding to this question, the examiner is reminded of the Veteran's contention that the symptoms of his PTSD led to a dramatically decreased interest in exercising and eating healthy. i. If yes, was the obesity a substantial factor in causing or aggravating the Veteran's sleep apnea? ii. If yes, would sleep apnea not have occurred but for the obesity caused by the Veteran's PTSD? Hypertension: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused or aggravated by his PTSD? (b.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran's PTSD caused him to become obese? In responding to this question, the examiner is reminded of the Veteran's contention that the symptoms of his PTSD led to a dramatically decreased interest in exercising and eating healthy. i. If yes, was the obesity a substantial factor in causing or aggravating the Veteran's hypertension? ii. If yes, would hypertension not have developed but for the obesity caused by the Veteran's PTSD? The examiner is reminded that the phrase "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it denotes that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and the Veteran's military service or whether the claimed disability was caused or aggravated by a service-connected disability. It should be noted that a lack of documented treatment during service, or following service, for a given disability, while probative, cannot serve as the sole basis for a negative finding. The examiner must provide a complete rationale for any opinion expressed, citing to the examiner's clinical experience, medical expertise, and established medical principles, as necessary. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so and note what, if any, additional evidence would be necessary before an opinion could be rendered. The Board reminds the examiner that failure to comply with the directives outlined herein renders an examination report inadequate and will subsequently result in further remand of the Veteran's claims. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Tolbert, 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.