Citation Nr: 21075988 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-55 346 DATE: December 22, 2021 ORDER Service connection for major depressive disorder is granted. Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for residuals of a hysterectomy is granted. Service connection for hysterectomy scar is granted. REMANDED Service connection for fibromyalgia is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, her major depressive disorder is related to events in service. 2. The Veteran does not have a current PTSD diagnosis. 3. The Veteran underwent a hysterectomy to treat fibroids that began in service. 4. The Veteran's abdominal scar is related to the post-service hysterectomy and other in-service operations. CONCLUSIONS OF LAW 1. The criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 3. The criteria for service connection for residuals of a hysterectomy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for hysterectomy scar have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to July 1992. The matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision. In December 2018 and January 2021, the Veteran requested that her case be advanced on the docket due to severe financial hardship. The Board finds that the evidence shows severe financial hardship, and her motion is granted. When the Veteran's claims arrived at the Board, they were characterized as petitions to reopen. The Board finds, however, that the Veteran's claims relate to her original August 2011 filing, and new and material evidence is not required to adjudicate them on the merits. Specifically, the Veteran filed claims for service connection for depression, PTSD, residuals of a hysterectomy, and a hysterectomy scar on August 26, 2011. The RO denied those claims in a September 2013 rating decision. New and relevant evidence was associated with the claims file, and the RO denied the claims again in a February 2014 rating decision, which is on appeal before the Board. Because new and relevant evidence was received within one year of the September 2013 rating decision, the evidence is considered as having been filed in connection with the original August 2011 claim. See 38 C.F.R. § 3.156(b). Accordingly, the Board has re-characterized the claims simply as claims for service connection. 1. Service connection for major depressive disorder is granted. The Veteran seeks service connection for major depressive disorder that began in service or is otherwise related to military sexual trauma (MST) in service. After resolving reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. Throughout the appeal, including in February 2013 statements and the January 2021 Board hearing, the Veteran reported that she was sexually assaulted before processing into the service in 1979. She further testified that she attempted suicide in 1981 following a breakup and was hospitalized. After she was discharged, she was hospitalized again. Thereafter, she testified that she hid her depressive symptoms because she did not want to return to inpatient care. Following service, she continued to experience depressive symptoms, and sought treatment in approximately 2000 because the symptoms persisted. The Board finds that her testimony regarding her in-service trauma, treatment, and continued symptomatology is credible. Her service records show a normal psychiatric examination at entrance. In January 1981, she attempted suicide following a breakup with her boyfriend at the time. In a January 1981 visit, she reported that she has been depressed for two years. However, in a visit later that month, she reported a six-year history of depression. She was hospitalized again shortly after discharge because her supervisor was concerned for her well-being. Her discharge report shows that she remained depressed, and she was diagnosed with adjustment reaction of adult life, severe, resolved, as manifested by depression, and suicidal gesture, resolved. A March 1989 periodic examination was normal and a January 1990 record notes that she was followed by mental health for six months following her suicide attempt with no recurrence of dysthymia or suicidal ideations. Personnel records show that she received a negative performance review for the period from October 1980 to July 1981 because she had "serious personal problems" and an "immature reaction to these problems." She also received a nonjudicial punishment in July 1980 for unauthorized use of a government phone. Post-service records show that she sought treatment in July 2003 for depression and weight gain that began approximately 4 years before. Later depression and MST screenings were negative but in March 2008 she was diagnosed with mild depression. In July 2011, she established care at a different VA and sought treatment for MST and depression. In a June 2012 mental health visit, she reported being sexually assaulted in 1979 by a supervisor before entering basic training. She further reported feeling "'blah' all of her life" with an increase in symptoms after the MST. Although she attempted to forget about the assault, she reported recurrent and intrusive recollections of it which caused avoidance, relationship difficulties resulting in three divorces, difficulty concentrating and sleeping, and impaired motivation. The initial diagnosis was major depressive disorder, recurrent mild-moderate, generalized anxiety disorder, and rule out PTSD. In October 2012, she was diagnosed with major depressive disorder, moderate, recurrent and anxiety, in part related to her traumatic experiences. During the evaluation, the Veteran discussed the MST as well as suffering from domestic violence in service and after service. The examiner further noted the Veteran struggled to hold employment from 1995 to 1998. In September 2013, the Veteran was afforded a VA PTSD examination. The examiner determined the Veteran had a diagnosis of depressive disorder but not PTSD. The examiner noted the Veteran's history of feeling depressed since high school, but she was not diagnosed with a condition until her attempted suicide in service. The examiner determined the Veteran's depression in service "appeared to be situational in nature, and any undiagnosed depression pre-military service did not appear to be aggravated beyond a normal level of progression." Recent VA treatment records post-examination show continued treatment for major depressive disorder and MST. The Board acknowledges that the evidence suggests the Veteran entered service with a psychiatric condition based on her reports of experiencing depressive symptoms since high school. As her entrance examination was normal, she is presumed sound at entrance and the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Board finds that the criteria for rebuttal have not been met. The Veteran stated she was not diagnosed with a psychiatric disability until January 1981 and her statements that she felt "blah" since high school and the examiner's medical opinion are not sufficient to show that the disability clearly and unmistakably preexisted service and was not aggravated by service. See Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition). Because neither requirement is met, the Veteran is considered sound at entrance and the claim is one of direct service connection. After reviewing the evidence, including the Veteran's testimony, service treatment records, VA examination, and post-service treatment records, the Board finds that there is an approximate balance of positive and negative evidence. Specifically, the Board finds that the Veteran's testimony regarding the MST, in-service symptoms, and post-service symptoms to be credible, and her testimony is supported by her statements made throughout the appeal and seeking treatment. While the service treatment records and VA medical opinion suggest her symptoms were situational and resolved in service, her testimony and VA treatment records relate her current major depressive disorder to the in-service MST. Thus, the Board resolves reasonable doubt in favor of the Veteran and the claim for service connection for major depressive disorder is granted. 2. Service connection for PTSD is denied. The Board finds that service connection is not warranted for PTSD. The Veteran's VA treatment records and September 2013 examination are negative for a PTSD diagnosis. While the Veteran contends that she has PTSD, as a layperson, her contention is not competent evidence of a diagnosis. See 38 C.F.R. § 4.125. Importantly, all of the Veteran's mental health symptoms will be contemplated when rating her major depressive disorder. 3. Service connection for residuals of a hysterectomy is granted. The Veteran seeks service connection for residuals of a hysterectomy. She testified she was diagnosed with fibroids in service and was supposed to undergo a hysterectomy, but the fibroids were not seen at the time the operation was attempted. She subsequently underwent the hysterectomy due to fibroids in 2000. Service treatment records show that the Veteran was treated for chronic pelvic and abdominal pain beginning in late 1987. In December 1987 she was diagnosed with right ovarian cystic disease versus ovarian dysfunction. She underwent a pelvic ultrasound which was normal, however. In September 1990, a pelvic sonogram revealed a disruption in the right uterine fundus which was consistent with a small fibroid. In November 1990, she underwent a dilation and curettage due to diagnoses of hypermenorrhea, chronic right lower quadrant pain, and uterine fibroids. She underwent a laparotomy for the same diagnoses in January 1991 at which time she was diagnosed with a normal uterus and ovaries. In November 1992, she was again diagnosed with chronic right lower abdominal pain and fibroids. Her post-service records show she underwent a hysterectomy due to uterine fibroids in 2000. She underwent a VA gynecological evaluation in September 2013, at which time the examiner diagnosed her with status post hysterectomy with scar secondary to uterine fibroids. The examiner documented marked enlargement of the uterus and fibroids and, in the section for other complications resulting from obstetrical or gynecologic conditions or procedures, noted recurrent pelvic and yeast infections. The examiner concluded the hysterectomy was not related to service simply because it was completed in 2000 despite noting that the fibroids began in service. After review of the evidence, the Board finds that the post-service hysterectomy was completed due to fibroids that began in service. The Veteran's service treatment records show consistent treatment for right lower quadrant pain and fibroids were shown during a pelvic ultrasound. At the time of her operation to remove the fibroids, however, they were not seen. She was again diagnosed with fibroids subsequent to the attempted operation and ultimately underwent a hysterectomy due to the fibroids. Thus, although the hysterectomy was completed after service, the condition that necessitated the hysterectomy began in service, and the Board finds that service connection is therefore warranted for residuals related to the hysterectomy. 4. Service connection for hysterectomy scar is granted. The Veteran seeks service connection for a scar on her abdomen related to c-sections in service and the post-service hysterectomy. The Veteran's March 1989 periodic examination noted a c-section scar in the lower abdomen related to her 1984 and 1988 c-sections and 1988 tubal ligation. She additionally underwent a laparotomy in January 1991 and an operation for her abdominal scar and excess abdominal tissue in April 1992. She underwent a scar examination in September 2013, which revealed a present scar on her abdomen related to previous c-sections and the hysterectomy. Because the c-sections were completed in service and residuals of the hysterectomy are service-connected, the Board finds that service connection is warranted for the abdominal scar. REASONS FOR REMAND 1. Service connection for fibromyalgia is remanded. The Board finds that the claim for service connection for fibromyalgia must be remanded for an addendum medical opinion. In September 2013, a VA examiner opined that PTSD has been linked to fibromyalgia and therefore service connection is warranted. The Veteran does not have a PTSD diagnosis, however, and is only service connected for major depressive disorder. The examiner specifically indicated that PTSD, rather than any psychiatric disorder, is linked to fibromyalgia. Accordingly, a remand is necessary for a medical opinion to assess whether fibromyalgia can be caused by, or is otherwise aggravated by, the Veteran's depression disability. The matters are REMANDED for the following action: Forward the claims file to the September 2013 examiner or another examiner if that examiner is unavailable. After a review of the claims file, the examiner should respond to the following: Is it at least as likely as not that the Veteran's diagnosed fibromyalgia was caused by her service-connected depression disability? If not, is it at least as likely as not that the Veteran's diagnosed fibromyalgia has been aggravated by her service-connected depression disability? MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lavan 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.