Citation Nr: 21072562 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 15-34 179 DATE: December 3, 2021 ORDER Service connection for an acquired psychiatric disorder, currently manifested by posttraumatic stress disorder (PTSD), major depressive disorder, and anxiety disorder, is granted. The issue involving whether the severance of service connection for treatment purposes only pursuant to 38 U.S.C. § 1702 for personality disorder was proper, is dismissed as moot. FINDINGS OF FACT 1. The Veteran's PTSD is likely due to a personal assault during service with current diagnoses of major depressive disorder and anxiety disorder being a consequence of PTSD. 2. The issue of whether the severance of service connection for treatment purposes only pursuant to 38 U.S.C. § 1702 for personality disorder was proper, is moot as the Veteran is service-connected for her psychiatric condition. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, currently manifested by PTSD, major depressive disorder, and anxiety disorder, have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for dismissal of whether severance of service connection for treatment purposes only pursuant to 38 U.S.C. § 1702 for personality disorder was proper, have been met. 38 U.S.C. § 1702, 5112; 38 C.F.R. § 3.105, 17.30, 17.36, 17.37, 17.38. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to December 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2013 and April 2014 rating decisions issued by the RO. The Veteran testified at a Board videoconference hearing in December 2018 before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been made a part of the record. In April 2019, the Board reopened and remanded the claim of service connection for PTSD. The Board also denied reopening a claim of service connection for personality disorder. Finally, the Board remanded the issue of whether severance of service connection for treatment purposes only pursuant to 38 U.S.C. § 1702 for personality disorder was proper. In August 2020, the Veteran submitted additional evidence. Waiver of RO consideration of the additional evidence is presumed given the date of the substantive appeal. See 38 U.S.C. § 7105(e). Even if a waiver were not presumed, the instant decision represents a complete grant of the benefit sought on appeal. Hence, there is no prejudice to the Veteran in proceeding to a decision in this matter without a waiver of RO consideration. 1. Service connection for an acquired psychiatric disorder, to include PTSD The Veteran contends that she has a current psychiatric condition, to include PTSD, due to military sexual trauma (MST) during service. She testified at her Board hearing that when she was first stationed in Guam, she had fallen asleep in a common room when she woke up with a man's hand over her face. She could not move as he proceeded to sexually assault her. Board Hr'g Tr. 3-4, 10. She reported the incident to the Master Chief at Arms, but nothing was done, and there was no investigation. Board Hr'g Tr. 4. The Board previously denied service connection for a personality disorder, so that issue is not a part of this appeal. However, the claim of service connection for a psychiatric disorder is otherwise shown to be broad in scope. It encompasses any psychiatric condition, including, but not limited, to PTSD. The Board will consider the broadened issue accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). A. Applicable Law Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 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 veteran's 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 posttraumatic stress disorder claim 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. B. Discussion The Board concludes that the Veteran has a current disability that is related to service. There is no material dispute that she has been diagnosed with PTSD. The diagnosis has been confirmed on multiple occasions, including at a May 2013 VA examination and, most recently, in a July 2020 Disability Benefits Questionnaire (DBQ). The evidence also tends to confirm that the personal assault during service did occur. In addition to the Veteran's credible account of the event, the service treatment records (STRs) include contemporaneous documentation of the event. Specifically, she underwent a psychiatric evaluation in October 1990. It recorded her report of a man "touching her body" as she was sleeping in a barracks lounge. As such, the reported stressor is corroborated. There are also other markers in the file indicating that the assault occurred. For example, her service records show she was abruptly discharged from service after seeking treatment for psychiatric symptoms. This corresponds to her current statements indicating that the discharge occurred in retaliation for reporting the assault. Finally, the claims file includes numerous statements from witnesses who knew her prior to service. They all described her as sociable and athletic prior to service, but withdrawn and depressed after returning from service. Several witnesses also recalled the Veteran telling them of the MST at some point in time after service. As there is no reason to doubt the credibility of these witnesses, their statements collectively tend to further support the finding that the in-service assault did occur. Thus, the question becomes whether the current disability is related to the assault. On this question there is some evidence tending to indicate a pre-existing condition. To this end, during service, the Veteran initially sought treatment in June 1990 for gastrointestinal complaints. She attributed her complaints to nervousness for the past year and a half. Later in June 1990, she sought treatment for other somatic complaints, such as extreme weakness and trouble thinking. She was referred for a mental health evaluation, which was conducted in July 1990. She reported a past psychiatric history involving seeing counselors due to difficulty in school and getting along with family, especially due to feeling hurt because she could not do as well as others. The July 1990 evaluation resulted in a diagnosis of adjustment disorder manifested by somatic complaints with no medical findings, and poor frustration tolerance with strong avoidant personality features. On follow-up nine days later, it was noted that she was doing well with the adjustment problems resolving despite the likelihood that further problems may arise with increased stressors of training. Then, as indicated, she underwent a further psychiatric evaluation in October 1990. It indicated symptoms involving difficulties sleeping since childhood due to disturbing dreams of men with red eyes, which reminded her of the devil, evil, and bad things. She had chronic fears and worries; she was always worrying about right and wrong. She also believed someone was watching her, molding her into something, and she sometimes felt a presence in a room by feeling a pressure on her body that she described as unreal. She reported a history of date rape at age 21, plus child sexual abuse at age 6. She also described a stressful childhood due to her father's alcohol use. The diagnosis was personality disorder, not otherwise specified (NOS) (schizotypal and paranoid), severe, existing prior to service. Several years after service, she underwent a psychological evaluation in December 1994 in connection with a claim for VA Vocational Rehabilitation services. The primary focus of the evaluation was to assess her potential for vocational rehabilitation, but the examiner diagnosed rule out bipolar disorder and rule out PTSD. The examiner found that the precipitating trauma may be associated with early childhood sexual molestation, dysfunctional family environment, and/or the reported date MST. The May 2013 VA examiner likewise diagnosed PTSD with "childhood onset" involving sexual abuse numerous times by an adult man when she was only 6 years old. A VA psychologist in July 2013 referred to the May 2013 VA examiner's conclusion and commented that the Veteran had a lengthy and complex history of mental health difficulties which appeared to be at least partially related to chronic childhood sexual abuse (as well as MST). An August 2016 VA admission similarly assessed past trauma leading to PTSD beginning in childhood and adolescence. Collectively, this evidence tends to indicate that her PTSD might have arisen prior to service. To this end, a veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b) (2015); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and aggravation by clear and unmistakable evidence. A "claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong," even if clear and unmistakable evidence establishes that a disease preexisted service. In other words, the "burden is not on the claimant to show that his disability increased in severity." To the contrary, the burden is on VA to "establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease." This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231 (2012). Here, the Veteran's psychiatric condition was not noted at the February 1989 service entrance examination. The Veteran denied all such symptoms, and a clinical psychiatric evaluation was marked as "normal." Hence, the presumption of soundness applies. See 38 U.S.C. § 1111. There is not clear and unmistakable evidence that the condition preexisted service. The medical opinions indicating preexisting PTSD are probative, but they were not couched in degrees of certainty that meet the demand for clear and unmistakable evidence. The clear and unmistakable standard is "very demanding" and requires unconditional (uncontradicted) evidence, which is not satisfied by equivocal medical opinions conditional qualifications such as those in these assessments. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (citing Harris, v. West, 11 Vet. App. 456, 462 (1998)). Even if these medical opinions were clear and unmistakable evidence of preexistence, there is not clear and unmistakable evidence that the condition was not aggravated during service. To the contrary, the May 2013 VA examiner specifically concluded that it is at least as likely as not that the assault in service aggravated the PTSD, particularly in light of her fragile personality structure, namely her diagnosed Schizotypal Personality Disorder. An August 2013 VA psychologist also found that it is likely that the assault in service had a profound negative effect on her self-concept and contributed to her challenges of forming meaningful relationships with others. Otherwise, multiple providers, such as in September 2013, December 2018, July 2020, and August 2020, concluded that her PTSD arose directly from the MST. Because this evidence indicates that her diagnosis was aggravated or directly due to the in-service assault, it cannot be found that there is clear and unmistakable evidence that the condition, even if preexisting service, was not aggravated by service. As such, the presumption of soundness is not rebutted, which entitles her to a finding of in-service incurrence of the condition. See Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2012) (noting that such a finding establishes the second element of service connection), aff'd 749 F.3d 1370 (Fed. Cir. 2014); Horn, 25 Vet. App. at 235. In short, there is credible supporting evidence that the in-service assault occurred. There is probative evidence that the PTSD was either a direct result of the assault or was aggravated by the assault. By operation of the presumption of soundness, as it is not rebutted, service connection is warranted on a direct in-service incurrence basis for PTSD. The Veteran has also been diagnosed with other psychiatric conditions, including major depressive disorder, anxiety, disorder, bipolar disorder, and eating disorder, NOS. Overall, the most recent evidence tends to confirm diagnoses of major depressive disorder and anxiety disorder. A treatment provider in July 2020 completed a VA Disability Benefits Questionnaire (DBQ) addressing this question. The provider explained that PTSD, anxiety, and depression symptoms were "mixed together" with the latter being a consequence of untreated PTSD. Regardless of the exact nature of the diagnostic label assigned to her acquired psychiatric condition, the instant decision is intended to represent a complete grant of service connection for all psychiatric conditions extant, which are related to service or the service-connected PTSD. The Veteran has also been diagnosed with a learning disability. The July 2020 VA provider diagnosed development disorder of scholastic skills, unspecified. A "mental deficiency" for purposes of VA law is not considered a disease for which service connection can be granted. 38 C.F.R. § 3.303(c). As such, this condition is not included within the scope of the service-connected disability. To conclude, upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's psychiatric condition, currently manifested by PTSD, major depressive disorder, and anxiety disorder, is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Whether the severance of service connection for treatment purposes only pursuant to 38 U.S.C. § 1702 for personality disorder was proper A May 2013 rating decision granted service connection for treatment purposes only for personality disorder under 38 U.S.C. § 1702. A July 2013 rating decision proposed to sever service connection for treatment purposes based on clear and unmistakable error. The RO explained that the Veteran was diagnosed with a personality disorder during service, which was not a diagnosis for which service connection can be granted under VA law. An April 2014 rating decision made this decision final, and the instant appeal followed. Pursuant to 38 U.S.C. § 1702, eligibility for VA treatment of an active mental illness (other than psychosis), for any veteran of the Persian Gulf War who developed such mental illness other than psychosis: (1) within 2 years after discharge or release from the active military, naval, or air service; and (2) before the end of the 2-year period beginning on the last day of the Persian Gulf War. 38 C.F.R. § 17.109(b). Herein above, the Board grants service connection for the Veteran's psychiatric condition other than personality disorder based on a finding that the condition is directly related to service. Based on this award, the Veteran is eligible for VA treatment for the service-connected disability. See 38 C.F.R. § 17.30, 17.37(b), 17.38. This renders moot the appeal involving the severance of service connection for treatment purposes. As such, the appeal is dismissed. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.