Citation Nr: 21074849 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 19-34 106 DATE: December 16, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as secondary to military sexual trauma, is granted. REMANDED Entitlement to service connection for right foot disability is remanded. Entitlement to service connection for bladder disability with urinary incontinence, to include as secondary to service-connected disability, is remanded. INTRODUCTION The Veteran served on active duty from January 2004 to June 2007, with additional service in the National Guard and the Reserves from 2009 to 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The Veteran perfected an appeal with respect to the issue of entitlement to service connection for a psychiatric disability, to include PTSD. In June 2020, the RO issued a rating decision wherein service connection was granted for Major Depressive Disorder. As the benefit sought on appeal with respect to a non-PTSD psychiatric disability has been granted, appeal review is moot. The issue of entitlement to service connection for PTSD remains pending before VA, and the Board will address the merits of this claim herein. FINDING OF FACT The Veteran's PTSD began during active service and/or is related to an in-service injury. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that she is entitled to service connection for PTSD as due to military sexual trauma. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). Service connection for PTSD may be granted if three elements are satisfied: 1) medical evidence establishing a clear diagnosis of PTSD under 38 C.F.R. § 4.125(a); 2) credible supporting evidence that the claimed in-service stressor actually occurred; and 3) a link, established by medical evidence, between current symptoms and a claimed in-service stressor. 38 C.F.R. § 3.304(f). PTSD based on personal assault refers broadly to stressor events involving harm perpetrated by a person who is not considered part of an enemy force. 38 C.F.R. § 3.304(f)(5). The VA acknowledges the unique problems veterans faced in documenting their claims because of the sensitive and extremely personal nature of assault. To compensate for the difficulties in reporting and producing evidence to support the occurrence of a stressor, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. In fact, the absence of in-service reports or treatments cannot be considered "negative evidence" in personal assault cases. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Unlike in other PTSD claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor in PTSD personal assault claims. See Menegassi v. Shinseki, 638 F.3d 1379 (fed. Cir. 2011). According to a September 2021 letter from Emily B. Jackson, Ph.D., the Veteran has been receiving treatment for PTSD at the Women's Trauma Recovery Program (Military Sexual Trauma) in Atlanta, Georgia since January 2021. Further, the Veteran is a Licensed Master Social Worker and has self-diagnosed her condition as PTSD. See Pond v. West, 12 Vet. App. 341, 345 (1999). Consequently, the evidence of record demonstrates a current diagnosis of PTSD. Additionally, during the September 2021 hearing, the Veteran testified as to in-service events that constituted military sexual trauma. These events focused on her treatment subsequent to her sexual orientation becoming widely known to fellow service members and her chain of command and took place prior to the repeal of the "Don't Ask, Don't Tell" policy. Although the Veteran's service treatment records do not specifically identify any particular incident of sexual trauma or the residuals thereof, Dr. Jackson's September 2021 letter indicated that the Veteran was being treated for PTSD due to military sexual trauma. The Board finds the Veteran's testimony and Dr. Jackson's letter to be credible and probative evidence of in-service military sexual trauma. See Menegassi, 638 F.3d at 1382. Although the Veteran stated that the military sexual trauma occurred while serving in the National Guard and/or Reserves, active service includes periods of ACDUTRA when service connection may be granted for disabilities resulting from a disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(a), (c). Active service also includes periods of INACDUTRA when service connection may be granted for disabilities resulting from an injury incurred in or aggravated while performing INACDUTRA. 38 U.S.C. § 101(23), (24); 38 C.F.R. § 3.6(a), (d). The Board finds that the military sexual trauma described by the Veteran constitutes an in-service injury for purposes of establishing service connection for PTSD. Upon review of the record, the Board finds the preponderance of the evidence supports finding that the Veteran's PTSD is related to her in-service military sexual trauma. Accordingly, the Board finds that service connection for PTSD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND During the September 2021 hearing, the Veteran asserted that her bladder disability with urinary incontinence is, at least in part, due to her service-connected psychiatric disabilities (Major Depressive Disorder and/or PTSD). This assertion was not addressed by the September 2019 VA examiner. As such, the Board finds that a remand is warranted in order to provide the Veteran with another VA examination. The Veteran was not provided a VA examination with respect to her right foot disability. The Veteran asserts that he right foot disability is associated with the rigors of her active duty, exacerbated by the type of footwear she was required to use (boots, steel-toed boots). The Board finds that there is an indication of an association between the Veteran's current right foot disability and her active service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Consequently, a remand to provide the Veteran with a VA examination is warranted. The matters are REMANDED for the following action: 1. Notify the Veteran that she may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of her in-service and post-service bladder and/or right foot problems. The Veteran should be provided an appropriate amount of time to submit this lay evidence 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature, onset, and etiology of Veteran's bladder disability and right foot disability. The examiner is asked to review the pertinent evidence, including the Veteran's lay evidence as to the onset of these disabilities. For any present bladder and/or right foot diagnosis, the examiner should opine whether it is at least as likely as not related to an in-service injury, event, or disease, or had its onset during the Veteran's period of service. In so doing, the examiner must consider and discuss the Veteran's lay report as to onset and course of the disabilities. As to the Veteran's bladder problems, the examiner must assume as true the Veteran's competent and credible account of having bladder problems since service. Further, with respect to the Veteran's right foot, the examiner is advised that pain resulting in functional impairment is a disability for VA purposes. The examiner must also opine as to whether it is at least as likely as not that any present bladder disability was caused or aggravated by service-connected disabilities, to include the aggregate impact of those conditions, and in particular to her service-connected Major Depressive Disorder and/or PTSD, to include any medication prescribed to treat service-connected disability. A complete rationale should be given for all opinions and conclusions expressed. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean G. Pflugner, 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.