Citation Nr: 21071168 Decision Date: 11/30/21 Archive Date: 11/29/21 DOCKET NO. 20-23 276 DATE: November 30, 2021 ORDER Entitlement to service connection for a psychiatric disability is granted. FINDING OF FACT A psychiatric disability is etiologically related to the Veteran's active service. CONCLUSION OF LAW A psychiatric disability was incurred in active service. 38 U.S.C. §§1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May to August 2011, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in April 2021, and remanded, in part, for additional development. In a September 2021 rating decision, the RO granted entitlement to service connection for residuals, traumatic brain injury (TBI). This constitutes a full grant of the benefit previously sought on appeal and hence, the matter is no longer in appellate status. The issue currently on appeal has been returned to the Board for further appellate action. The Veteran has contended that her psychiatric disability is related to her active service. Specifically, she reported that she was physically assaulted with punches to her face/head during basic combat training (BCT). She recalled that she had nightmares and stress from hearing loss after a grenade went off near her right ear during training. She described experiencing panic attacks and flashbacks after she choked out her battle buddy during a clench drill. Further, she stated that she was repeatedly raped by her platoon members. In additional lay statements, the Veteran's parents and siblings noticed that the Veteran had symptoms of a psychiatric disability shortly after her release from BCT. The Board finds that laypersons are competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). Further, the Veteran's parents and siblings are deemed credible in this regard. The Board notes that the Veteran has been service-connected for residuals, TBI, and right ear hearing loss. To this extent, the Board concedes the Veteran's claimed stressors as consistent with the facts and circumstances of her service. Service treatment records (STRs) are silent for any complaints, treatment, or diagnosis for a psychiatric disability. Regardless, the Veteran reported that she first experienced symptoms associated with a psychiatric disability during her active service and that those symptoms have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. A review of VA medical center (VAMC) records revealed that the Veteran presented with symptoms of posttraumatic stress disorder (PTSD) in November 2014. She was diagnosed with depressive disorder, anxiety disorder, and PTSD. In January 2017, the Veteran was afforded a VA psychological examination. The examiner diagnosed the Veteran with unspecified anxiety disorder, gender dysphoria, and borderline personality disorder. The examiner determined that the Veteran did not meet the diagnostic criteria for PTSD. The examiner did not find sufficient evidence of markers to substantiate the Veteran's reported military sexual trauma. Further, the examiner alluded that the Veteran's psychiatric disability was likely present prior to her active service. The Veteran was provided an additional VA psychological examination in July 2021. The examiner diagnosed the Veteran with PTSD, unspecified anxiety disorder, and unspecified depressive disorder. Additionally, the examiner indicated that the Veteran's TBI and PTSD symptoms were interrelated and overlapped. The examiner opined that the Veteran's psychiatric disability did not clearly and unmistakably preexist her active service. Further, the examiner opined that the Veteran's psychiatric disability was less likely than not incurred in or caused by her active service. In this regard, the examiner observed the Veteran's overall tendency to make inconsistent and contradicting reports regarding her personal history. The examiner stated that there were no circumstantial markers substantiating the Veteran's reported sexual and physical assault. The examiner added that there was no evidence that the Veteran's psychiatric disability, to include PTSD, originated during or was etiologically related to her active service. The examiner found no records of psychiatric complaints, diagnoses, or treatment until late 2014, more than two years post-service. The Board finds that the VA psychological examinations are inadequate for adjudication purposes. In this regard, the January 2017 VA examiner did not apply the correct standard to rebut by clear and unmistakable evidence the presumption of soundness. The July 2021 VA examiner did not address each of the Veteran's reported stressors, to include those conceded herein. Furthermore, both examiners did not consider the additional lay statements of record supporting a continuity of the Veteran's symptoms since BCT. As the opinions are inadequate, they cannot serve as the basis of a denial of entitlement to service connection. In January 2018, a private clinical psychologist diagnosed the Veteran with a psychiatric disability, to include PTSD. The clinical psychologist opined that the Veteran's psychiatric disability was more likely than not due to the Veteran's TBI/traumas incurred during her active service. Further, a behavioral healthcare provider concurred with the January 2018 private clinical psychologist in February 2021, stating that the Veteran's physical assault, in part, led to her PTSD. The Board finds the private psychological evaluations probative in that they considered the Veteran's reported physical assault that led to her TBI. The Board notes that 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify symptoms related to a psychiatric disability, and report on the chronicity of symptomatology since active service. Moreover, her statements have been found credible. (Continued on the next page) Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a psychiatric disability is warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.