Citation Nr: 21076339 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 12-19 146 DATE: December 23, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) due to military sexual trauma (MST) is remanded. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1976 to November 1976 and from September 1978 to December 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran filed separate claims for PTSD and bipolar disorder. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), these claims have been combined and recharacterized to include any acquired psychiatric disorder. Such is appropriate as a review of the record reflects that the Veteran has additional psychiatric diagnoses. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD due to due to MST is remanded. The Veteran claims service connection for PTSD due to fear for his life and also due to MST. The October 2018 VA examiner found the Veteran did not have PTSD, but rather persistent depressive disorder, which the examiner found was not related to military service. He noted that there was not enough historical information to link his current problems to service. The VA examiner implicitly found the Veteran's post-service reports of MST not credible because he did not report the incident or seek mental health treatment for PTSD until 2002. However, 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). Further, the Veteran's military personnel records also reflect that he had several acts of Article 15 misconduct. Acts of misconduct can be markers of an MST which the VA examiner did not consider. The examiner also did not consider the November 1983 VA examination, in which the Veteran notes he has felt nervous and depressed since 1981 and the 1983 Summary of Service, in which the Veteran notes he had personal problems during service. Additionally, a statement of behavioral change during service was submitted by the Veteran's uncle after the October 2018 examination and therefore also not considered by the examiner. Accordingly, remand is warranted for a new VA psychological examination and nexus opinion which addresses service connection an acquired psychiatric disorder to include as related to a MST with consideration of the identified markers that may be suggestive of MST. 2. Entitlement to a TDIU is remanded. The Veteran's claim for TDIU benefits is inextricably intertwined with the claim remanded herein, and the outcome of this claim may depend on the outcome of the other remanded claim. See Parker v. Brown, 7 Vet. App. 116 (1994). Therefore, a remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA or private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA psychological examination to determine the nature and etiology of any diagnosed acquired psychiatric disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. a) The examiner should provide a diagnosis for any current psychiatric disorder. b) For any diagnosis rendered, the examiner is asked to address whether the evidence of record, including the Veteran's lay statements, statements made by family members, and evidence from sources other than the Veteran's service treatment records described below, corroborate the claim that a personal assault occurred in service. (38 C.F.R. § 3.304 (f)(5)). c) If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any diagnosed psychiatric disorder is at least as likely as not (i.e., 50 percent probability or greater) related to the in-service personal assault. In offering the above opinion, the clinician MUST address the following which may corroborate the Veteran's account of the stressor incident: i) the Article 15 misconduct charges leading to discharge from service. ii) the November 1983 examination which notes that the Veteran has felt nervous and depressed since July 1981. iii) a 1983 Summary of Service noting personal problems during service. iv) an October 2018 statement from the Veteran's uncle that the Veteran's behavior changed after service. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. (Continued on the next page) A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. PAUL E. METZNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, Associate 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.