Citation Nr: 21074644 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-46 347 DATE: December 15, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and dysthymia is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1992 to February 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2014 by a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2021, the Veteran was advised that her requested Board hearing before a Veterans Law Judge was scheduled for October 14, 2021; however, she failed to appear for the hearing. The hearing notice was sent to the address of record and was not returned. The regularity of the mail is presumed. The Veteran has not requested that such be rescheduled based on good cause. Therefore, her request for a hearing is considered withdrawn. 38 C.F.R. § 20.603 (d). The Board has recharacterized the issue on appeal as it appears on the cover page of the instant decision. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the Veteran's prior claim of entitlement to service connection for depression and dysthymia was denied in a May 1997 rating decision. However, since such decision was issued, relevant service department records in the form of service treatment records (STRs) were subsequently associated with the record. Therefore, the Board is not precluded from reconsidering the Veteran's psychiatric symptomatology characterized as depression and dysthymia in the adjudication of the current claim. 38 C.F.R. § 3.156 (c). Entitlement to service connection for an acquired psychiatric disorder. The Veteran has argued that she is entitled to service connection for PTSD based on sexual and physical assault during her time on active duty. She further claims that the mild psychiatric condition noted to exist prior to service was permanently aggravated by the stress of these reported assaults during her active service. The Veteran's representative has further argued that since the issue on appeal was not identified on the service entrance examination, the presumption of soundness applies, and the burden is on the VA to prove they existed prior to service and the current severity is not a result of in-service aggravation. Initially, the Board notes that evidence indicates that there may be outstanding relevant VA treatment records. The last VA treatment records associated with the file are dated in March 2016. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. The Veteran was not afforded a VA examination in connection with her claim. The Board notes that during service, the Veteran sought psychological treatment for depression and also reported experiencing depression prior to entering service. In this regard, her STRs show a normal psychological report upon enlistment with subsequent hospital admission in 1993 for adjustment disorder with depressed mood and bereavement following a stillbirth. At such time, the Veteran reported a history of depression and current marital and occupational stressors. Borderline personality traits were also noted. STRs from the following year show treatment for continued difficulty dealing with the loss of her baby as well as stress related to relocating, a new marriage, and parenting. A September 1995 problem list thereafter noted depression, and, in November 1995, a doctor noted that the Veteran was experiencing headaches likely related to her depression. In 1996, the Veteran was admitted twice for hospitalization to treat psychological symptoms attributed to marital problems. It was noted that the Veteran had difficulty dealing with stress and that similar symptomatology had previously resulted in hospitalization at least three or four times. She was noted to take Prozac during this period. The STRs further indicated possible dysthymia and borderline personality traits. The Veteran was thereafter separated from service pursuant to a medical board finding of dysthymia and back pain. As part of the medical board proceedings, the Veteran was provided a psychological evaluation, at which time she reported experiencing depression and overdosing on pills in 1988, prior to joining the military. In her appeal to the Board in November 2016, the Veteran explained that despite any depression that existed prior to entrance into active duty service, she was not reliant on anti-depressant drugs to function prior to experiencing stress during her time in the military. However, she reported that her mental health and ability to function in social settings were drastically diminished following losing a child and undergoing relationship problems during her military service. Veteran further reported being drugged with trazadone and raped/assaulted by her then husband, who she said was court-martialed for rape and stalking. The Board notes that the Veteran's records document her seeking a restraining order against her husband; however, such records do not definitively show that he was convicted of or court-martialed for such behavior. Immediately following separation from service, VA examination records do show continued diagnosis of dysthymia with treatment by Prozac. The Veteran's VA medical records continue to show treatment for depression, anxiety, and symptoms of PTSD during the period on appeal. Given this evidence, the Board finds that a VA medical examination is required to determine whether any of the Veteran's current psychological disorders had initial onset in service, or preexisted service and were aggravated therein. 38 C.F.R. § 3.159. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records since March 2016. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's acquired psychiatric disability. Following a review of the record, the examiner should address the below inquiries: (a)(i) After eliciting a history of the Veteran's psychiatric disorder prior to, during, and after service, the examiner is asked to opine whether any currently-diagnosed psychiatric disorder, clearly and unmistakably (undebatably) preexisted the Veteran's service, given her report of psychiatric symptomatology prior to entry to service. (ii) If the examiner finds that any psychiatric disorder did clearly and unmistakably preexist service, the examiner must opine whether such was clearly and unmistakably NOT aggravated by service. When rendering the aforementioned requested opinions, the examiner is asked to specifically consider the Veteran's report during an examination coincident with her medical board proceedings concerning a 1988 overdose of pills and depression prior to service. (b) If the examiner finds that any current psychiatric disorder did not clearly and unmistakably preexist service, the examiner must opine whether it is at least as likely as not that such disability began during active service, manifested within the year after discharge from service, or was noted during service with continuity of the same symptomatology since service? (c) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. Notably, the examiner must opine whether the evidence of record, including the Veteran's lay statements, and the Veteran's service records, corroborate the claim that a personal assault, described as being drugged and raped by her husband, occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. A rationale should be provided for any opinion offered. 3. If upon completion of the aforementioned the claim remains denied, the matter must be returned to the Board after compliance with appellate procedures. K. L. WALLIN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.