Citation Nr: 21069336 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-26 572 DATE: November 18, 2021 REMANDED Service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and unspecified anxiety disorder. REASONS FOR REMAND The Veteran served on active duty from December 1987 to February 1990. The case is on appeal from a December 2017 rating decision. In November 2021, the Veteran testified at a Board hearing. Service connection for a psychiatric disorder, to include PTSD, MDD, and unspecified anxiety disorder. The Board has recharacterized the Veteran's claim more broadly as one of service connection for a psychiatric disorder, to include PTSD, MDD, and unspecified anxiety disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran seeks service connection for a psychiatric disorder. She maintains that her psychiatric condition is a result of military sexual trauma (MST) during service. The Veteran asserts that the first incident involving MST occurred on September 16, 1988. She alleges that a group of senior officers violently assaulted her for several hours in the barracks, after which she was threatened with dire consequences if she reported the incident. See August 2017 VA 21-4138; January 2018 notice of disagreement (NOD). She noted a resulting pregnancy with required surgical removal of HPV vaginal and anal warts prior to delivery, adding that she placed the child for adoption. The Board notes that, although the Veteran's service treatment records (STRs) in July 1989 reflect she had recently delivered a baby, the medical records associated with the birth/surgery are not associated with claims file. See September 2017 STRs. In view of the remand for the reasons below, on remand, an attempt should be made to obtain STRs in that respect, particularly in view of an October 1989 record reflecting an intrauterine pregnancy and noting her history of having delivered one child that was placed for adoption, together her history of having delivered a child at service entrance. Further, the Veteran maintains that a second incident of MST occurred on August 11, 1989, shortly after she returned from maternity leave. She alleges that she was sexually assaulted in a bathroom by one of the senior officers who had participated in the previous assault, and who reiterated the previous threats if she reported the incident. The Board notes that the Veteran's service personnel records (SPRs) reflect the Veteran was counseled on deficiencies in the form of an unauthorized absence in November 1989. See September 2017 SPRs. Although the Veteran stated that she did not report the incident due to fear of reprisal, in view of the absence of any leave status reflected in her SPRs, to include in a CHRONOLOGICAL RECORD of service, see September 2017 SPRs, on remand, an attempt should be made to obtain SPRs reflecting that she was in leave status in May and/or June of 1989. The Board notes that although some of the Veteran's service records are illegible, the records are stamped "Best Copy" and thus, the Board finds that further efforts to obtain a new scan of the service records currently associated with the file would be futile. As indicated above, the Veteran was afforded a VA examination in November 2017. Although the opinion notes that the Veteran did not meet PTSD criterion D, the examination report notes persistent and exaggerated negative beliefs or expectations about oneself, others, or the world under criterion D. The Board notes that internal inconsistency diminishes the probative value of an opinion. Further, and although the examiner indicated that the Veteran did not meet criterion G, the examiner may not have completely considered the Veteran's lay statements as to onset of symptoms and functional impairment during service. In that respect, the Veteran reported onset of sleep difficulty and nightmares after the alleged MST incidents, as well as having developed low self-esteem, noting failed relationships ever since. In addition, and although the examiner stated that "[w]hile the Veteran is taken for her word that the MST took place," noting in-service MST markers equally supported both non-consensual and consensual sexual activity not enough evidence to support a direct link between her reported MST and her current unspecified anxiety disorder was noted. Based on the foregoing, together with the Veteran's assertions with respect to the attitude of the examiner, the VA opinion is not completely adequate. Thus, the Board finds that remand is also warranted for a new VA examination. Additionally, the Veteran reported treatment at the Fayetteville VA Medical Center (VAMC) beginning in 2001. In that respect, March 2003 VA records indicating treatment in the previous year note that the Veteran received treatment exclusively through VA. As such, remand is also warranted for an attempt to obtain outstanding VA treatment records from the Fayetteville VAMC from January 2001 to March 2003. Thereafter, as indicated above, the Veteran should be afforded a new VA examination to determine the nature and etiology of any diagnosed psychiatric condition. A new VA examination following review of any newly obtained and associated evidence may constitute evidence that the claimed in-service MST or a psychiatric condition occurred during service. See 38 C.F.R. § 3.304(f)(5); Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). In light of the remand, updated VA treatment records since the issuance of the April 2018 statement of the case (SOC) should also be obtained. The matter is REMANDED for the following action: 1. Attempt to obtain STRs/SPRs associated with the child birth in 1989 and associated maternity leave, to include from Fort Belvoir, Virginia. Any records located should be associated with the claims file. If such records are unavailable, the claims file must be documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain VA treatment records from the Fayetteville VAMC for the period 2001 to March 2003, as well as updated VA treatment records since April 2018. 3. Thereafter, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate medical professional, other than the November 2017 examiner. The entire claims file must be reviewed by the examiner. The examiner should then respond to the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that a personal assault occurred during service based on the evidence, including the lay statements and testimony provided by and on behalf of the Veteran, the Veteran's service records, VA treatment records, behavioral changes, etc., and if not, the examiner should indicate whether he/she otherwise believes a personal assault occurred given the Veteran's psychological presentation. In this regard, the examiner is advised that VA regulations provide that evidence other than service records may be used to corroborate that an alleged assault occurred, such as evidence of behavior changes including deterioration in work performance and episodes of depression, panic attacks, or anxiety without an identifiable cause. (b) If the examiner finds that evidence indicates that a personal assault occurred during service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed PTSD is related to the in-service personal assault/MST. (c) For any psychiatric disability other than PTSD identified on examination or diagnosed during the pendency of the claim, including MDD and unspecified anxiety disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such condition had its clinical onset during active service or is related to any in-service disease, event, or injury, to include the claimed MST. Rationale for all opinions expressed should be provided. If the reviewing clinician is unable to provide the requested opinions without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.