Citation Nr: A21019010 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 191003-35599 DATE: November 30, 2021 REMANDED Service connection for psychiatric disability, claimed as posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND In January 2019, the RO denied the Veteran's claim of service connection for a psychiatric disability, which he asserted was due to military sexual trauma (MST). The Veteran filed a Legacy NOD that same day; prior to a Statement of the Case (SOC) being issued, the Veteran opted into RAMP and selected Higher Level Review (HLR). As such, the record closed on that date. In a March 2019 rating decision, the RO noted the Veteran's RAMP HLR election and confirmed and continued the denial of service connection for PTSD. In October 2019, the Veteran filed a VA Form 10182 and appealed the March 2019 rating decision to the Board. The Veteran selected the Board's Hearing docket. The Veteran failed to report for his June 10, 2021, Board hearing. Thus, the record opened on that date and remained open for 90 days thereafter. 38 C.F.R. § 20.302(c). The Veteran did not provide additional evidence while the record remained open. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Veteran is competent to report military sexual trauma and psychiatric symptoms that began in service. 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 470 (1994). If a posttraumatic stress disorder claim is based on in-service personal assault, evidence of behavior changes that are consistent with an in-service personal assault may be used to corroborate the claim. "Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to . . . deterioration in work performance[.]" 38 C.F.R. § 3.304(f)(5). In this case, the Veteran served in the United States Army from January 14, 1980 to February 14, 1980. While in basic training, he left his unit at Fort Dix, New Jersey, without authority. He was in an "absence without leave" (AWOL) status during January 18-29, 1980. He was administratively separated from the Army with an Honorable discharge. Per the Veteran's DD 214, he was separated for "marginal or nonproductive performance." Since being discharged, the Veteran has been treated by the Asheville VAMC. He has been diagnosed by E.L.M., Ph.D., Psychologist/MST Coordinator, with PTSD, chronic, secondary to MST. This diagnosis is repeated several times in the Veteran's Asheville VAMC medical records. On February 8, 2018, during outpatient psychotherapy, the Veteran further explained the sexual assault: He said that the MST occurred when he was in basic training at Ft. Dix in early1980. He said that there were two men who were also new recruits in basic, but had ROTC training so they were given positions of leadership. He said that one of the men, [REDACTED], asked for volunteers for KP. Mr. [REDACTED] said that he was in the kitchen that evening with [REDACTED] and another guy, who was [REDACTED] friend. He said that the two of them sexually assaulted him. On September 6, 2018, the Veteran was evaluated in-person by a psychologist for a VA Compensation and Pension (C&P) Exam. On September 11, 2018, the report was completed. The psychologist confirmed the Veteran's PTSD diagnosis, applying the DSM-5. However, regarding service connection, the psychologist concluded it was less likely than not (i.e., less than 50 percent probability) that the PTSD was incurred or caused by in-service injury, event, or illness. The psychologist provided the following explanation: Per PTSD Intake on 02/24/09, Vet denied MST. He did report the following incident that reportedly led to him going AWOL. "They treated me bad. They picked on me, made fun of me, I don't know why. They should have told me what was going to happen." It is documented on 02/24/09, that his symptoms of PTSD are due to childhood sexual trauma and /or perceived abuse from basic training. On the current evaluation, Vet reported "I was sodomized and forced to give oral sex" while working in KP in mid January 1980. He stated that the next day, he went AWOL. He reported feeling so embarrassed and did not tell anyone. It is unclear what led to his inconsistency in report. He could have been reluctant to report the MST in 2009 or may be exaggerating the events that led to his AWOL and later discharge. C&P Exam, dated September 11, 2018. The Board notes that the C&P Exam does not discuss Dr. E.L.M.'s diagnosis that the Veteran has PTSD secondary to MST. Additionally, the C&P Exam does not discuss the Veteran's 1980 AWOL as deterioration in work performance that may be used to corroborate MST. The Board finds that the current C&P Exam is incomplete because it does not address the existing diagnosis by the Veteran's treating psychologist. The Board finds the examination is inadequate and amounts to a pre-decisional duty to assist error. As a result, remand is necessary. The matters are REMANDED for the following action: Schedule a VA examination (or telehealth interview, review of the record etc. if an in-person examination is not feasible). The examiner should provide a full description of his psychiatric impairment and report all signs and symptoms necessary for evaluating the Veteran's disability. A diagnosis of PTSD must be ruled in or excluded. All psychiatric disabilities found to be present should be identified. Thereafter, the examiner must opine as to whether it is at least as likely as not that the Veteran has a psychiatric disability that is related to or had its onset in service. If the examiner determines it is less likely than not that military sexual trauma occurred, the examiner will address Dr. E.L.M.'s diagnosis (of PTSD secondary to MST) and explain why it is insufficient to corroborate the Veteran's claim; the examiner should also address the 1980 AWOL as possible "deterioration in work performance" for corroboration purposes. In offering this opinion, the examiner must acknowledge and discuss the Veteran's competent medical and lay statements of his condition and any lay evidence regarding the onset of the disability. S. CHARLES NEILL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Neill, S. Charles 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.