Citation Nr: 21067665 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-41 312 DATE: November 5, 2021 REMANDED Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) due to military sexual trauma, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a skin disorder (claimed as grand melanoma), to include as due to radiation exposure is remanded. Entitlement to service connection for cancer (claimed as myeloma), to include as due to radiation exposure is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from December 1973 to December 1976 and in the United States Navy from December 1978 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In March 2020, the Board remanded the issues for further development. 1. Entitlement to service connection for a psychiatric disorder, to include PTSD due to military sexual trauma, to include as secondary to service-connected disabilities is remanded. In June 2020, the Veteran was afforded a VA examination for PTSD. The VA examiner concluded that the Veteran did not have a diagnosis of PTSD under DSM-5 criteria. However, the examiner diagnosed the Veteran with unspecified anxiety disorder. The VA examiner opined that the Veteran's unspecified anxiety disorder was less likely than not (less than a 50 percent probability) incurred in or caused by the Veteran's military service. The examiner noted that the opinion was based on the Veteran's military records, review of the claims file, treatment records, clinical evaluation, review of recent research, DSM-5 diagnostic criteria. The Veteran's report/endorsement of symptoms did not satisfy the DSM-5 criteria for PTSD. The Veteran's report/description of the distressing experiences did not satisfy criteria A (trauma). The stressor identified by the Veteran was not reported, and there were no significant markers in the Veteran's service treatment records or his post discharge history that would corroborate the stressor impacted him in a traumatic way, consistent with Criterion A of PTSD. This was not to say that the Veteran did not experience sexual assault, but that the currently available evidence was insufficient to establish the Veteran was traumatized or to corroborate the reported stressor. The Veteran's report/endorsement of symptoms did not include a Criteria C (avoidance) symptoms closely associated with the traumatic event. However, the Veteran's reported/endorsement of symptoms satisfied the DSM-5 diagnostic criteria for unspecified anxiety disorder with chronic symptoms resulting in 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 June 2020 VA examiner further explained that a review of the Veteran's medical records, service treatment records, and his reported post discharge history did not show any evidence to document a mental health treatment history until October 19, 2013. The Veteran stated when he described his stressor, "I was fine until the altar boy incidents, thinking I was the only one with problems...." While an experience such as the stressor the Veteran described might be traumatic for some individuals, the Veteran appeared to cope effectively for years, and only after hearing about similar experiences of others, turned his attention to a dystonic experience and experienced regret. This was a very different experience of having been traumatized by a stressor. Therefore, there was no identifiable nexus to relate his current condition to the identified stressor, nor was it incurred in or caused by the incident during service. No history of a mental health condition was documented during service. There were a number of issues related to military sexual trauma claims that had been taken into consideration in formulating the opinion. Although the Veteran had been diagnosed with PTSD and noted to have experienced military sexual trauma, the VBA was not bound to accept a veteran's uncorroborated account of military sexual trauma regardless of whether a mental health provider believed him or her. Although a number of mental health professionals have diagnosed the Veteran with PTSD secondary to military sexual trauma, none of those professionals reviewed the Veteran's claims file, service treatment records, or military personnel records. Their diagnosis and opinions were based on the Veteran's self-reported history without third party verification of the stressor. In June 2021, a VA addendum medical opinion was obtained. The VA examiner opined that the Veteran's unspecified anxiety disorder was less likely than not incurred in or caused by his military service. The examiner explained that a review of the Veteran's medical record, service treatment record, and his reported post discharge history did not document a mental health treatment history until October 18, 2013. There was no evidence that the current unspecified anxiety condition was proximately due to, the result of, or aggravated by the Veteran's service-connected disabilities (to include tinnitus, right ankle strain, left ankle strain, bilateral hearing loss, residual fracture right 5th finger, residual fracture middle finger with osteoarthritis of the left hand and residual laceration of the left index finger with osteoarthritis and scars). A remand is warranted for a new VA examination and addendum medical opinion. The medical opinions of record are inadequate because the VA examiner erroneously discredits the Veteran's lay statements about his in-service stressors because it is uncorroborated and relies on the absence of medical evidence to support a negative conclusion. Establishing service connection for posttraumatic stress disorder requires: (1) medical evidence diagnosing posttraumatic stress disorder in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the 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. VA will not deny a claim for posttraumatic stress disorder 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. 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). Based on a review of the Veteran's service treatment records, military personnel records, and lay statements and testimony, the Board finds that the Veteran's lay statements regarding his in-service sexual assault incident to be credible. Therefore, a new VA examination and medical opinion should be obtained in order for the VA examiner to present findings and an opinion while considering the Veteran's lay statements regarding the in-service incident as be credible. Thus, a remand is warranted. 2. Entitlement to service connection for a skin disorder (claimed as grand melanoma), to include as due to radiation exposure is remanded. In May 2021, the Veteran was afforded a VA examination for his skin condition. The Veteran was diagnosed with tumors and neoplasms of the skin (including malignant melanoma), basal cell carcinoma (nodular right cheek), invasive squamous cell carcinoma of the right forearm and scalp, and residual malignant melanoma in situ completely excised. The VA examiner opined that it was less likely than not that the Veteran's skin condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that his opinion was based on a review of the available medical records, medical literature, and clinical experience with evaluation of the Veteran. All three service treatment records folders showed no evidence of complaint, treatment, or diagnosis of a disease process involving the Veteran's claimed skin conditions. A May 1987 separation examination did not show any skin conditions either. There was no objective evidence to support that the claimed skin conditions were chronic and ongoing during or soon after active duty service. The Veteran's skin conditions were diagnosed at VA many years after discharge from military service as reported by the Veteran. The VA examiner concluded that all current and prior diagnosis of a skin disability during the pendency of the claim were less likely than not related to the Veteran's active duty service. In June 2021, a VA addendum medical opinion was obtained. The VA examiner opined that it was less likely than not that the Veteran's melanoma was incurred in or caused by the radiation exposure during service. The RO was asked to research the Veteran's exposure to radiation during service. The examiner noted that the dose level of exposure was far below the dose needed for development of any form of cancer. The literature review did not support such a nexus. A linear no-threshold (LNT) dose-response relationship was used to describe the relationship between radiation dose and occurrence of cancer. This dose-response models suggested that any increase in dose, no matter how small, resulted in an incremental increase in risk. The U.S. Nuclear Regulatory Commission (NRC) accepted the LNT hypothesis as a conservative model for estimating radiation risk. A remand is warranted for a new VA addendum medical opinion. These medical opinions are inadequate. The examiner noted that any increase in dose exposure to radiation, no matter how small, resulted in an incremental increase in risk. The VA examiner gave a negative conclusion but failed to fully consider the contributory risk that any amount of exposure to radiation potentially increased the risk for his skin disorders. A remand is warranted for a new VA addendum medical opinion to address this. 3. Entitlement to service connection for cancer (claimed as myeloma), to include as due to radiation exposure is remanded. In May 2021, the Veteran was afforded a VA examination for hematologic and lymphatic conditions, including leukemia. The Veteran was diagnosed with anemia and ampullary adenoma status post ampullectomy. The VA examiner opined that the Veteran's ampullary adenoma was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. This opinion was based on a review of all available medical records, medical literature, and clinical experience with evaluation of the Veteran. All of the Veteran's service treatment records did not show any evidence of complaints, treatment, or diagnosis of a disease process involving the Veteran's claimed condition of ampullary lesions. The May 1987 separation examination did not show that the condition was ongoing. There was no objective evidence of support that this claimed condition had a chronic ongoing treated condition during or soon after active duty. The exact etiology of the Veteran's condition was unknown. All current and prior diagnosis of ampullary lesions during the pendency of the claim were less likely than not related to the Veteran's active duty service. In July 2021, a VA addendum medical opinion was obtained. The VA examiner opined that the Veteran's ampullary adenoma status post ampullectomy was less likely than not incurred in or caused by radiation exposure during service. The RO was asked to research the Veteran's exposure to radiation during service. The examiner noted that the dose level of exposure was far below the dose needed for development of any form of cancer. The literature review did not support such a nexus. A linear no-threshold (LNT) dose-response relationship was used to describe the relationship between radiation dose and occurrence of cancer. This dose-response models suggested that any increase in dose, no matter how small, resulted in an incremental increase in risk. The U.S. Nuclear Regulatory Commission (NRC) accepted the LNT hypothesis as a conservative model for estimating radiation risk. A remand is warranted for a new VA addendum medical opinion. These medical opinions are inadequate. First, the examiner did not take into account the January 2020 private medical opinion in which the physician stated that the Veteran's ampullary lesion might suggest the possible role of his prior exposure to radiation as an etiological or at least as a contributory factor. Additionally, the examiner noted that any increase in dose exposure to radiation, no matter how small, resulted in an incremental increase in risk. The VA examiner gave a negative conclusion but failed to fully consider the contributory risk that any amount of exposure to radiation potentially increased the risk for his ampullary lesion. A remand is warranted for a new VA addendum medical opinion to address this. The matters are REMANDED for the following action: 1. Schedule a VA examination to determine the nature and etiology of the Veteran's psychiatric disorder(s). All necessary tests must be performed. The VA examiner must review the claims file and a copy of this remand. The VA examiner should consider the following: (a.) The Board notes that the Veteran's in-service stressor regarding his personal assault has been conceded. (b.) Does the Veteran have a diagnosis of PTSD in accordance with the DSM-V criteria? (c.) Is it at least as likely as not that the Veteran's psychiatric disorder(s), to include PTSD (if diagnosed with such), unspecified depressive disorder, unspecified anxiety disorder is related to his military service, to include military sexual trauma? (d.) Is it at least as likely as not that the Veteran's psychiatric disorder (s) is caused by, proximately due to, and/or aggravated by his service-connected disabilities? Currently, the Veteran is service-connected for: (1) tinnitus, (2) right ankle strain; (3) left ankle strain; (4) bilateral hearing loss; (5) residual fracture right fifth finger; (6) residual fracture middle finger with osteoarthritis left hand; and (7) residual laceration index finger left with arthritis and scars. All opinions must be supported by a sufficient rationale. A negative opinion cannot be solely based on the absence of medical evidence. 2. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's current skin disability. If an opinion cannot be rendered without conducting a VA examination, then an examination should be scheduled and performed. The VA examiner should review the claims file and a copy of this remand. The VA examiner must consider the following: (a.) Is it at least as likely as not that the Veteran's skin disability is related to his exposure to radiation during service? The VA examiner should consider the July 2021 medical opinion that stated that the dose-response models suggested that any increase in dose, no matter how small, resulted in an incremental increase in risk. All opinions must be supported by a sufficient rationale. A negative opinion cannot be solely based on the absence of medical evidence. 3. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's ampullary adenoma/lesions. If an opinion cannot be rendered without conducting a VA examination, then an examination should be scheduled and performed. The VA examiner should review the claims file and a copy of this remand. The VA examiner must consider the following: (a.) Is it at least as likely as not that the Veteran's ampullary adenoma/lesions are related to his exposure to radiation during service? The VA examiner should consider the July 2021 medical opinion that stated that the dose-response models suggested that any increase in dose, no matter how small, resulted in an incremental increase in risk. The VA examiner should also consider the January 2020 private medical opinion in which the physician stated that the Veteran's ampullary lesion might suggest the possible role of his prior exposure to radiation as an etiological or at least as a contributory factor. (Continued on next page) All opinions must be supported by a sufficient rationale. A negative opinion cannot be solely based on the absence of medical evidence. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.