Citation Nr: A21019258 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 190909-29762 DATE: December 3, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include other specified trauma and stressor-related disorder, as due to military sexual trauma (MST) is granted. REMANDED Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for a back condition is remanded. FINDING OF FACT Resolving any doubt in the Veteran's favor, her acquired psychiatric disability is at least as likely as not related to MST. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1979 to November 1979 and from August 1980 to December 1982. Rating decisions were issued under the legacy system in October 2016 and June 2017. In July 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the supplemental claim lane. The agency of original jurisdiction (AOJ) issued a RAMP supplemental claim decision in May 2019, which is the decision on appeal. In the September 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the RAMP supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Veteran testified at a videoconference hearing in June 2021. A transcript is of record. A review of the entire record shows that the Veteran has been variously diagnosed with depression, anxiety, and other specified trauma and stressor-related disorder. Although the appeal originated as one for posttraumatic stress disorder (PTSD), given the diagnoses of record, and the specific arguments put forth by the Veteran's attorney (see a September 2021 attorney brief), the Board will address whether service connection is warranted for any acquired psychiatric disorder, however diagnosed. The issue has been recharacterized accordingly, as noted on the title page. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Entitlement to service connection for an acquired psychiatric disability, to include other specified trauma and stressor-related disorder, as due to MST. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran contends that she has an acquired psychiatric disorder that is directly related to MST, which occurred in service. Specifically, she indicates that, on or around August 1961, she was raped by a fellow serviceman while on active duty. Service treatment records are silent for complaints related to MST. However, the Veteran has consistently reported that in March 1981 she was sexually assaulted by a fellow soldier while walking home at night from the motor pool. She did not report the incident because of fear and shame and because the soldier threatened to deny what occurred and make her a "laughingstock." She reported the sexual assault many years post-service after being encouraged to do so by another female Veteran. In September 2021, the Veteran submitted a private psychiatric evaluation completed by Dr. J.G., who diagnosed her with other specified trauma and stressor-related disorder. The examiner indicated that this diagnosis was considered most appropriate as the Veteran exhibited symptoms of a trauma disorder but did not meet full criteria for posttraumatic stress disorder (PTSD). The examiner conducted extensive psychological testing and concluded that the Veteran exhibited numerous MST markers at or around the time of trauma, as well as numerous long-term markers associated with MST. The examiner concluded that, based upon review of the records and evaluation of the Veteran, the Veteran's other specified trauma and stressor-related disorder was a direct result of the sexual assault that occurred during service. The Board notes that the Veteran is competent to report the circumstances of the assault she experienced in service because they are based on her own direct observations. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of her personal knowledge). Moreover, the Board finds these statements to be credible, as the Veteran has reported a consistent history of the in-service stressor in describing the stressor throughout the period on appeal. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing). The Board finds convincing the reason she provided for not reporting the sexual assault while in service. As noted above, there is little to no contemporaneous evidence available to verify the Veteran's stressor. However, the Board finds that the private medical opinion from Dr. J.G. persuasive as to the existence of the Veteran's stressor. Indeed, in claims based on personal assault, an after-the-fact medical opinion can serve as credible supporting evidence of the stressor. See Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). Moreover, Dr. J.G.'s medical opinion is based on facts supported by the record, as well as clinical findings at the examination and contains an adequate rationale. There are no conflicting medical opinions of record and the Board finds no adequate basis to reject the July 2021 private medical opinion Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current acquired psychiatric disability is related to MST. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a headache disability is remanded. 2. Entitlement to service connection for a back condition is remanded. These issues are remanded to correct a duty to assist error that occurred prior to the May 2019 decision on appeal. During the course of the Veteran's claim, the AOJ undertook development to associate with the claims file all service personnel and treatment records for her periods of active duty. While records from the Veteran's second period of active duty have been associated with the claims file, no personal or treatment records from her first period of active duty for training August 1979 to November 1979 have been located. Further, the Veteran was not notified that the AOJ was unable to locate these records nor was she provided the opportunity to furnish these records. Additionally, these issues must also be remanded as the medical opinions obtained in January 2016, August 2016, and February 2019 are inadequate for claims purposes. In each instance, the examiner relied largely on the Veteran's apparent lack of treatment for headache and back conditions until many years post-service, a rationale the Court has generally found to be inadequate. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Further, the examiners did not address the Veteran's competent lay statements regarding onset and progression of these conditions. Finally, regarding the Veteran's back condition, the examiner is reminded that pain alone may constitute a disability when it results in functional impairment, even if there is no identified underlying diagnosis. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel and service treatment records, specifically those records from her first period of service from August 1979 to November 1979. All efforts to obtain these records must be documented in the claims file, and the Veteran must be properly notified if these records cannot be located. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of her headache condition. The claims folder, including a copy of the June 2021 Hearing Transcript, must be sent to the examiner for review. All indicated tests should be conducted. The examiner should take a history from the Veteran as to the progression of her headache disability. After review of the record, interview and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's headache disability had onset in, or is otherwise related to her periods of active-duty service? The examiner is asked to comment on the Veteran's lay statements regarding the history and progression of her headache condition. All opinions should be supported by a medical explanation or rationale. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of her back condition. The claims folder, including a copy of the June 2021 Hearing Transcript, must be sent to the examiner for review. All indicated tests should be conducted. The examiner should take a history from the Veteran as to the progression of her headache disability. After review of the record, interview and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's back disability had onset in, or is otherwise related to her periods of active-duty service? The examiner is reminded that pain alone may constitute a disability if there is functional impairment. Additionally, the examiner is asked to comment on the Veteran's lay statements regarding the history and progression of her back condition. All opinions should be supported by a medical explanation or rationale. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.