Citation Nr: 21007363 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-56 812 DATE: February 9, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Service connection for a psychiatric disorder other than PTSD is remanded. FINDING OF FACT The Veteran has a diagnosis of PTSD that is due to an in-service stressor. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1956 to April 1960. This case comes before the Board of Veterans’ Appeals (the Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in May 2019. The Veteran appeared before the undersigned Veterans Law Judge in October 2018 and delivered sworn testimony via video conference hearing. Duties to Notify and Assist Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran testified before the undersigned Veterans Law Judge in October 2018. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2020). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Laws and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2020). In addition, service connection for certain chronic diseases, including arthritis may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f) (2020). There are several avenues to document an in-service stressor, other than obtaining verification from the Joint Services Records Research Center (JSRRC) or other government records repository: an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; lay evidence of personal assault with appropriate corroboration; and a stressor related to Veteran’s fear of hostile military or terrorist activity, with appropriate medical evidence. 38 C.F.R. § 3.304(f). Analysis The Veteran asserts that he has PTSD as well as depression as a result of situations he encountered while serving with the Navy in Guam. In particular, the Veteran has reported being the victim of a sexual assault during service. The Veteran did not seek medical treatment and did not report the sexual assault incident to any military personnel. The Veteran’s service treatment records (STRs), including the April 1960 service separation examination, contain no complaints or treatment related to any psychiatric disability. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A June 2015 VA psychiatric record provided a diagnosis of PTSD. A January 2020 VA examination report noted a diagnosis of PTSD. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran has consistently reported that he was sexually assaulted during service, and he has presented valid reasons concerning why he had not reported the sexual assault to the military authorities. The Board finds the Veteran’s testimony to be competent and credible evidence of the reported in-service stressor. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, or inconsistent statements), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The Veteran’s testimony is corroborated, at least in part, by the additional evidence of record, including the January 2020 VA PTSD examiner. The January 2020 VA examiner indicated that the Veteran had described the assault incident and the Veteran “appeared to be honest.” The Board finds the above evidence to be sufficiently corroborative of the Veteran’s claimed in-service personal assault. Accordingly, the second element of service connection has been met. Third, the Board finds that the evidence of record supports a finding that the PTSD is related to active service. In April 2015 and June 2015 VA medical records, a VA psychiatrist stated that the Veteran’s PTSD was due (at least in part) to his claimed military sexual assault. The Board accords the April 2015 VA opinion significant probative value as it was based on a contemporaneous examination that included a discussion of the Veteran’s medical and social history. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that review of the claims file by a VA examiner, without more, does not automatically render the opinion persuasive, and conversely a private medical opinion may not be discounted solely for a lack of claims file review, because the central issue is whether the examiner was informed of the relevant facts in rendering a medical opinion). The Board notes that the January 2020 VA examiner, while not overtly providing a positive opinion, essentially endorsed the Veteran’s assertions concerning his PTSD claim. Resolving all doubt in favor of the Veteran, service connection for PTSD is warranted. REASONS FOR REMAND 1. Service connection for a non-PTSD psychiatric disorder is remanded. Remand is required for an addendum opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The January 2020 VA examiner stated that there was no psychiatric disorder other than PTSD, and thus provided no nexus opinion. However, VA treatment records from 2013 through 2020 indicate diagnoses of adjustment disorder and major depressive disorder. The matters are REMANDED for the following action: Provide the Veteran with an appropriate examination to determine the etiology of his non-PTSD psychiatric disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each non-PTSD psychiatric disorder, to include major depressive disorder and adjustment disorder, had onset in, or is otherwise related to, active military service, to include the Veteran’s in-service sexual assault. . K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.