Citation Nr: 21009593 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-51 888 DATE: February 22, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED The issue of service connection for a colostomy due to colorectal cancer is remanded. The issue of service connection for a cervical disability is remanded. FINDING OF FACT The Veteran’s PTSD had its onset during service or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1131, 1137, 5103(a), 5103A, 5017; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from March 1977 to July 1977, with additional reserve service. These matters come before the Board of Veterans’ Appeals (Board) from a June 2017 rating decision. The Veteran testified before the Board at a hearing in July 2020. A transcript of the hearing has been associated with the claims file. Service Connection Under the relevant 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. § 1131. Generally, the evidence must show the existence of (1) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases are subject to presumptive service connection if the disease manifests to a compensable degree within one year of separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). PTSD In order to establish service connection for PTSD, the evidence of record must include 1) a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); 2) a link, established by medical evidence, between current symptoms and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Lay testimony may be sufficient to corroborate an in-service stressor if the stressor is related to fear of hostile military or terrorist activity. Id. Where, however, VA determines that the Veteran did not engage in combat with the enemy, or that the Veteran did engage in combat with the enemy but the claimed stressor is unrelated to such combat, the Veteran’s lay testimony, by itself, will not be enough to establish the occurrence of the reported stressor. Instead, the record must contain evidence that corroborates the Veteran’s testimony as to the occurrence of the claimed stressor. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d), (f); West v. Brown, 7 Vet. App. 70, 76 (1994). Further, there are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than the Veteran’s service records which may corroborate his or her account of the stressor incident. 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. 38 C.F.R. § 3.304(f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to, a request for a transfer to another military duty assignment; deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. In addition, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). The Board has reviewed the evidence of record and finds that service connection is warranted for the Veteran’s PTSD. First, throughout the period on appeal, the Veteran submitted multiple credible and consistent statements, including in June 2015, December 2016, and May 2018, describing his account of military sexual trauma (MST) experienced during service, which he stated occurred during the first four weeks of basic training in approximately March 1977. Moreover, the Veteran also provided credible testimony at the hearing before the Board in July 2020. Lastly, during the hearing before the Board, the Veteran’s representative stated that as the MST occurred at the start of the Veteran’s service during basic training there was not a baseline to establish any markers to corroborate an in-service stressor and there was also no need to put in for a transfer of duty station as he was scheduled to change duty stations at the conclusion of training. The Board notes that the Veteran’s service treatment records (STRs) do not exhibit complaints, treatment, or evidence of an MST or PTSD. During his March 1977 entrance examination there are also no indications of PTSD. Additionally, the Board notes that the Veteran’s separation examination is unavailable. Accordingly, the Board has a heightened obligation to explain its findings, to evaluate any evidence that may be favorable to the Veteran, and to provide an adequate rationale for rejecting any evidence. Washington v. Nicholson, 19 Vet. App. 362, 371 (2005). Next, in December 2016, one of the Veteran’s private medical providers submitted a statement regarding the Veteran’s claim. The private medical provider stated that the Veteran suffered from ongoing symptoms of PTSD due to MST. Additionally, the private medical provider stated that the Veteran’s severe PTSD, as well as residual physical symptoms due to the MST, caused his marriage to fail, caused him to lose multiple jobs, and caused suicidal ideations. Further, the Veteran underwent a psychiatric evaluation with a second private medical provider in July 2020 regarding PTSD. The medical provider determined that the Veteran has diagnoses of PTSD and major depression in accordance with the DSM 5. The medical provider determined that the Veteran’s account of MST met the criteria for an in-service stressor. The medical provider determined that the Veteran’s psychiatric symptoms include depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, impaired judgement, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, and circumstantial, circumlocutory, or stereotyped speech. Additionally, the private medical provider concluded that the Veteran’s severe PTSD symptoms, including shame and avoidance of residual physical symptoms due to the MST, caused his life to deteriorate to the point of isolation, joblessness, homelessness, and advanced colorectal cancer. The Board finds that the probative evidence of record demonstrates that service connection for PTSD is warranted. First, in the December 2016 statement, one of the Veteran’s private medical providers rendered a positive opinion finding a nexus relationship between the Veteran’s PTSD and the MST experienced during service. Second, during the July 2020 psychiatric evaluation with a second private medical provider, the provider specifically rendered a positive opinion finding a nexus relationship between the Veteran’s PTSD, diagnosed in accordance with the DSM 5, and an in-service stressor, the MST during basic training. Third, under 38 C.F.R. § 3.304(f)(5), additional evidence may also be used to corroborate an in-service stressor. As noted, during the July 2020 hearing before the Board, as the MST occurred at the start of the Veteran’s service during basic training there was not a baseline to establish any markers to corroborate an in-service stressor and there was also no need to put in for a transfer of duty station as he was scheduled to change duty stations at the conclusion of training; however, the July 2020 private medical provider indicated substantiating evidence for the MST stressor, most significantly the Veteran’s behavior changes. Specifically, the medical provider noted that the Veteran’s severe PTSD symptoms and residual physical symptoms due to the MST, caused behavior changes that resulted in the Veteran’s life deteriorating to the point of isolation, joblessness, homelessness, and advanced colorectal cancer. Moreover, the Board notes that the July 2020 private medical provider’s conclusions regarding the Veteran’s isolation, joblessness, homelessness, and advanced colorectal cancer are corroborated by the evidence of record. Therefore, the Board finds that the December 2016 and July 2020 positive nexus opinions establish that the Veteran’s PTSD is related to service and the probative evidence of record corroborates the Veteran’s in-service stressor. Thus, the requirements for establishing service connection for PTSD have been met. Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that service connection for PTSD is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is granted. REASONS FOR REMAND Colostomy The Board finds that further development is necessary regarding the Veteran’s claim of service connection for a colostomy due to colorectal cancer. First, the Veteran submitted multiple statements, including in June 2015, December 2016, and May 2018, describing the symptoms related to his colostomy due to colorectal cancer and stating that these symptoms started following the MST experienced during service and continued until his diagnosis and treatment of colorectal cancer. Specifically, the Veteran stated that following the MST he suffered from continuing rectal bleeding, fluid drainage, stool incontinence, and pain. The Veteran also provided testimony at the hearing before the Board in July 2020 asserting that his colostomy due to colorectal cancer is due to the MST experienced during service. The Veteran’s private medical records indicate that he presently has a colostomy due to colorectal cancer. The private medical records document that in June 2005 the Veteran was diagnosed as having a large colorectal tumor, that the Veteran underwent chemotherapy, and that in March 2007 the Veteran underwent an abdominal peritoneal resection surgery resulting in a colostomy. Additionally, the Veteran’s VA medical records indicate that the Veteran experienced longstanding symptoms related to colorectal cancer. In June 2016 and July 2016 VA medical records, the Veteran stated that following the MST experienced during service until his colorectal cancer diagnosis and treatment, he suffered from stool incontinence and pain. Lastly, in April 2020, the Veteran submitted a statement from one of his private physicians regarding his colostomy due to colorectal cancer. The physician stated that she treated the Veteran for many years for symptoms related to his colorectal cancer. The physician opined that the Veteran’s colorectal cancer may have been caused by the MST experienced during service. The physician stated that the Veteran’s colon cancer was located in the rectal area and could have been due to direct trauma or human papillomavirus infection. The Board finds that this opinion does not meet the correct evidentiary standard of at least as likely as not, as required to establish or deny service connection. Obert v. Brown, 5 Vet. App. 30, 33 (1993). In summary, the Board finds that the evidence indicates that the Veteran has a diagnosis of colorectal cancer, with residuals including a colostomy, that the Veteran’s symptoms related to colorectal cancer may have continued since service to the colorectal cancer diagnosis and treatment, and that there may be a potential nexus relationship between colorectal cancer and the MST experienced during service. Therefore, as the evidence indicates a potential nexus relationship between service and the Veteran’s colorectal cancer, with residuals including a colostomy, the low threshold for obtaining a VA examination has been met in this case. Accordingly, a remand is necessary for the VA to properly fulfill its duty to assist in providing a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Cervical Disability The Board finds that further development is necessary regarding the Veteran’s claim of service connection for a cervical disability. First, the Veteran submitted multiple statements, including in June 2015, December 2016, and May 2018, describing the symptoms related to his cervical disability and stating that these symptoms have continued since the MST experienced during service to the present. Specifically, the Veteran stated that he was held in a headlock during MST and that he has experienced continuing neck pain since the MST to the present. The Veteran also provided testimony at the hearing before the Board in July 2020 asserting that his present cervical disability is due to the MST experienced during service. The Board finds that the Veteran’s statements indicate that the symptoms related to his cervical disability may have continued since the MST experienced during service to the present. Additionally, the Veteran’s February 2017 VA medical records document that the Veteran complained of neck pain persisting for over 30 years, specifically since the MST experienced during service. The VA medical records also indicate that the Veteran has been diagnosed with a cervical disability, with symptoms including disc abnormalities, foraminal narrowing, cord compression, and radiating pain down his left arm. Therefore, the Board finds as the Veteran has a presently diagnosed cervical disability and the evidence indicates that the symptoms related to his cervical disability may have continued since the MST experienced during service to the present that the low threshold for obtaining a VA examination has been met in this case. Accordingly, a remand is necessary for the VA to properly fulfill its duty to assist in providing a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his colorectal cancer, with residuals including a colostomy. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s colorectal cancer, with residuals including a colostomy, had its onset during service or is otherwise related to service, including the MST experienced during service? In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the private medical opinion submitted in April 2020 and the Veteran’s competent assertions as to the nature, onset, and continuity of such problems since service. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. 2. Schedule the Veteran for an examination to determine the nature and etiology of his cervical disability. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s cervical disability had its onset during service or is otherwise related to service, including the MST experienced during service? In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s competent assertions as to the nature, onset, and continuity of such problems since service. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. The examiner should also consider all lay statements submitted by the Veteran regarding his disability. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should 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(s). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.