Citation Nr: 21010522 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 19-33 437 DATE: February 25, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for migraines is remanded. FINDING OF FACT The preponderance of the probative evidence of record establishes that Veteran’s posttraumatic stress disorder is related to her military service, to include as due to military sexual trauma. CONCLUSION OF LAW The criteria for entitlement to service connection for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1990 to September 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a November 2019 form 9, the Veteran’s representative indicated that the Veteran wanted a hearing before the Board. However, in subsequent November 2020 correspondence, the Veteran’s representative withdrew the hearing request. No additional hearing requests have been received. Legal Criteria Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an 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, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). The Veteran contends that she is entitled to service connection for posttraumatic stress disorder as a result of her military service. The evidence of record supports the Veteran’s contentions and establishes entitlement to service connection for PTSD. VA treatment records establish that the Veteran has a current disability of PTSD. Specifically, July 2016 VA treatment records note that the Veteran reported struggling with PTSD. January 2017 VA treatment records note that the Veteran has some component of PTSD due to military service during the gulf war. April 2017 VA treatment records note that the Veteran presented with signs and symptoms of PTSD in the context of military sexual trauma. The Veteran’s symptoms included excessive worrying, racing thoughts, restlessness, fear that something bad will happen, panic attacks and hallucinations. Subjectively, the Veteran reported having a normal childhood and noted that her symptoms began after military service. With respect to an in-service injury or event, April 2017 VA treatment records not that the Veteran reported an attempted sexual assault in service. She reported that while in service she went out drinking with some friends, she passed out at one point and when she woke up one of them was on top of her trying to sexually assault her. Lay persons are competent to testify to regarding information to which they have knowledge of facts or circumstances and matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Here, the Board find the Veteran’s contentions of an in-service personal assault to be competent and credible. Further, if a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s accounts of the stressor incident including statements from family members; evidence of behaviour changes following the claimed assault may constitute credible evidence of the stressor. 38 C.F.R § 3.305(5). Here, the record contains September 2020 statements from the Veteran’s sister and ex-husband both of whom indicate that the Veteran’s behaviour was different after she returned from the military. The Veteran’s sister reported that the Veteran became guarded, paranoid, suspicious of everyone and began having panic attacks. The Veteran’s ex-husband noted that the Veteran became aggressive, belligerent and began experiencing mood swings. The Board finds that these lay statements are competent and credible. 38 C.F.R. § 3.159. These opinions support the Veteran’s contentions regarding her in-service stressor. With respect to establishing a nexus, between the Veteran’s PTSD and her in-service injury, a September 2017 VA examination notes a current diagnosis of PTSD. The examiner also asserts that the Veteran’s stressor is related to an in-service personal assault and that the stressor is adequate to support the diagnosis of PTSD. The examiner concludes that the Veteran has PTSD as a result of military sexual trauma. Notably, the record also contains a separate September 2017 VA examination signed by the same examiner in which the examiner indicates that the Veteran’s diagnosis meets the criteria but there is no evidence that it related to the Veteran’s military service because there is no report of mental health issues during service and no consistent report of ongoing mental health problems since the military. The Board finds this opinion less probative as it is not consistent with the medical evidence of record, including VA treatment records which show a diagnosis of PTSD post military service, moreover this opinion does not consider or address the Veteran’s contentions with regard to military sexual trauma. The Veteran was afforded another VA examination in September 2019. The examiner continued to note a diagnosis of PTSD, related to sexual assault since service. The examiner notes that there is no evidence in the medical file related to the Veteran’s military sexual assault because the Veteran felt shame and self-blame feeling she must adhere to the loyalty of her fellow marines. The examiner opined that the Veteran’s PTSD is at least 50 percent likely to be caused by her sexual assault while in training at Camp Lejeune. The Board affords probative weight to this opinion as it is consistent with the evidence of record, including the Veteran’s lay statements regarding her assault in service. Additionally, an August 2020 private opinion opines that the Veteran’s psychiatric symptoms align with diagnoses of PTSD and major depressive disorder. The Veteran’s diagnoses were noted to be determined based on psychiatric symptoms related to her military sexual trauma. The preponderance of the probative evidence of record establishes that the Veteran has a current disability of PTSD, related to an in-service personal assault. As such, entitlement to service connection for PTSD is granted. REASONS FOR REMAND 2. Entitlement to service connection for migraines is remanded. The Veteran contends that she is entitled to service connection for migraines. VA treatment records from 2017, 2018 and 2019 note a medical history of migraines. March 2017 VA treatment records note that the Veteran has been getting migraines for many years. However, the record does not contain a VA examination. VA is obligated to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Based on the Veteran’s claim for service connection and treatment records showing a history of migraines, a VA examination is warranted. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. After all outstanding VA treatment records have been obtained, schedule the Veteran for a VA examination for her migraines. 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: Are the Veteran’s migraines 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 her in-service injury and symptoms as well as her post-service symptoms. The Veteran’s lay statements are to be presumed credible for the purposes of this examination only. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alicia Wimbish 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.