Citation Nr: 21006690 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 19-37 334 DATE: February 4, 2021 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as due to military sexual trauma (MST), is remanded. Entitlement to service connection for hypertension, claimed as high blood pressure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1975 to October 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that in his December 2019 VA Form 9, the Veteran only appealed the issues of entitlement to service connection for PTSD and entitlement to service connection for hypertension. As such, those are the only 2 issues properly before the Board. 1. Entitlement to service connection for PTSD, to include as due to MST, is remanded. The Board notes that VA treatment records indicate the Veteran has a current diagnosis of PTSD. Furthermore, the Veteran has reported that while in service he was the victim of a sexual assault. As such, remand is required to allow VA to attempt to corroborate the Veteran's reported stressor and send the Veteran notification as required under 38 C.F.R. § 3.309(f)(5). Additionally, the Veteran should be provided a VA examination. The Board notes that MST falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran alleges. See, e.g., AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013); Patton v. West, 12 Vet. App. 272 (1999). Relevant regulations stipulate that, if a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran's service records may corroborate his or her account of the stressor incident. 38 C.F.R. § 3.304 (f)(5). Examples of such evidence include but are not limited to records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Id. 2. Entitlement to service connection for hypertension, claimed as high blood pressure is remanded. In a March 13, 2020 letter, the Veteran’s counsel asserted that the Veteran’s hypertension is secondary to his claimed PTSD. As such, the Board finds that a remand for a VA examination is required. The matters are REMANDED for the following action: 1. Send the Veteran notice required for PTSD claims based on personal assaults and allow time for a response. Then, attempt to corroborate the Veteran's in-service stressor based on personal assault. If more details are needed, contact the Veteran to request the information. 2. Ask the Veteran to complete a VA Form 21-4142 for New Jersey Association on Correction. Make two requests for the authorized records from New Jersey Association on Correction, unless it is clear after the first request that a second request would be futile. PTSD 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). 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. 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 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. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. The examiner’s attention is invited to the June 27, 2018 letter in which the Veteran stated that while in basic training a soldier in front of him dropped his rifle which began firing when it hit the ground, making him fear for his life. He then stated that combat training, such as the gas chamber, caused him panic and stress. He further stated that someone in his unit was hurt and hospitalized, traumatizing him. Finally, he stated that he "took flight for 14 days" while on active duty, stating that he was in fear of his life. The examiner’s attention is invited to the June 12, 2019 VA treatment record which notes the Veteran reported that in 1975 while in basic training he was in a shower when an unidentified male put a towel over his head and choked him while he was penetrated. He stated that he never reported this due to guilt and shame and that soon after he began to self-medicate with alcohol and other drugs. He further stated that he went AWOL after the incident. The examiner’s attention is further invited to military personnel records dated September 24, 1975, October 10, 1975 and October 31, 1975 which document the Veteran’s period of being AWOL and eventual discharge from the service. 4. Schedule the Veteran for a VA examination for his hypertension. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s hypertension at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is the Veteran’s hypertension at least as likely as not proximately due to his claimed PTSD? Is the Veteran’s hypertension at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his claimed PTSD? 5. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 6. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.