Citation Nr: 21011144 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 18-44 434 DATE: March 1, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder and other specified trauma and stressor related disorder, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s diagnosed psychiatric disorders are related to an in-service assault. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder, diagnosed as depressive disorder and other specified trauma and stressor related disorder, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1980 to August 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a psychological condition to include insomnia and anxiety. In May 2017 the Veteran filed a notice of disagreement (NOD) as to his psychological condition. In August 2018 the RO issued a statement of the case (SOC) and in September 2018 the Veteran filed a substantive appeal (via VA Form 9). In a July 2019 decision, the Board denied service connection for an acquired psychiatric disability, to include insomnia and anxiety. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans’ Claims (Court). In September 2020, while the matter was pending before the Court, the Veteran’s attorney and VA’s General Counsel filed a joint motion for remand (JMR). In September 2018, the Court granted the parties’ motion and remanded the matter for action consistent with the JMR. As a final preliminary matter, in Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), the Court held that a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Although the Veteran originally filed a claim for service connection for posttraumatic stress disorder (PTSD) and psychological disability to include insomnia and anxiety, the Board will broaden the Veteran’s claim and consider all psychiatric diagnoses raised by the record. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service 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) Acquired psychiatric disability, to include insomnia and anxiety An October 2018 VA treatment note indicates that the Veteran is diagnosed with unspecified depressive disorder. In a March 2017 disability benefits questionnaire, a private psychologist diagnosed the Veteran with other specified trauma and stressor related disorder. Also, a November 2016 VA examiner diagnosed the Veteran with antisocial personality disorder and other unspecified depressive disorder. Thus, a current disability has been demonstrated. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder due to military sexual trauma (MST). In an August 2016 Statement in Support of Claim (VA Form 21-4138) the Veteran stated he was sexually assaulted in jump school. Following this incident, the Veteran started acting insubordinate and began drinking and doing drugs. After being discharged the Veteran experienced symptoms such as anger and difficulty maintaining a job. In an October 2016 Statement in Support of Claim for PTSD (VA Form 21-0781a) the Veteran recounted his assault and stated that the emotional damage he sustained negatively affected his familial relationships. At the November 2016 VA examination the Veteran reported his in-service sexual assault and the VA examiner noted that the Veteran experienced depressed mood, anxiety, and chronic sleep impairment. The Veteran’s military personnel records indicate that he had disciplinary issues while in service. He was noted as disrespecting his superior non-commissioned officer and having letters of indebtedness in January 1981. He received formal counseling on multiple occasions between December 1981 and April 1982 for problems such as being absent from a place of duty and late for work. In May 1982 he was absent without leave (AWOL) and it was recommended that he be discharged for unsuitability for apathy and inaptitude. In July 1982 he was transferred for rehabilitation after he had been counselled by all members of his chain of command to no avail. He was ultimately discharged for unsuitability. Over the course of the Veteran’s claim he has consistently submitted lay statements about his in-service assault which caused him symptoms associated with his acquired psychiatric disability. As a lay person, the Veteran is competent to provide evidence of observable events and report the onset of depressive symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). After reviewing all the evidence of record, the Board find the Veteran's statements, including his reports of an increase in alcohol usage and aggression since his MST corroborates the reported in-service assault. Thus, the in-service injury requirement has been met. The remaining question is whether the Veteran's diagnosed psychiatric disorders are related to his in-service MST. In a June 2019 rehabilitation psychological report, the Veteran’s private psychologist opined there is a causal or aggravating connection between his emotion and physical trauma during military service and his documented depressive symptoms. The psychologist explained that he came to this conclusion after observation, testing, an interview and a review of the Veteran’s records. While the psychologist relied on the service history provided by the Veteran, the discounting of a medical opinion that relied on service history provided by the Veteran is only warranted in certain circumstances, none of which are present here. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006) (reliance on the service history provided by the veteran only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran). Moreover, although the psychologist’s rationale was not extensive, reading the opinion as a whole and in the context of the evidence of record, reflects a rationale that warrants that at least some probative weight be given to the opinion. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). An October 2018 VA treatment record contains a diagnosis of unspecified depressive disorder. This diagnosis was based on the reported military sexual trauma reported by the Veteran which is credible and has been consistent. The Board considers the October 2018 VA treatment record as an implicit nexus opinion given the context in which the diagnosis was made. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Thus, the October 2018 VA treatment record is entitled to probative weight. Furthermore, although there is nothing in the Veteran's personnel and service treatment records (STRs) that specifically document a sexual assault during his active service, cases involving allegations of personal assault falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events about which a veteran complains. See Patton v. West, 12 Vet. App. 272, 281 (1999). The Veteran has consistently maintained that he suffered a sexual assault in jump school while in service, including during mental health therapy with VA psychologists. There are negative nexus opinions in the Veteran’s record regarding whether his acquired psychiatric disability is related to service. However, in the September 2018 JMR the parties agreed that the April 2017 VA examiner who also issued a November 2016 VA opinion engaged in improper fact finding. Therefore, no further discussion of these opinions is required. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's acquired psychiatric disability, to include anxiety and insomnia is related to an assault in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for an acquired psychiatric disability, to include anxiety and insomnia is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Although the Veteran originally filed a claim for PTSD along with his claim for an acquired psychiatric disability, there are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). In the present case, there is no evidence that there are symptoms of PTSD that are distinguishable from his acquired psychiatric disability. Consequently, the Veteran will be compensated for all of his psychiatric symptoms and the Board need not specifically address the issue of entitlement to service connection for PTSD. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (Board erred in failing to discuss or assess the separate effects of claimant’s service-connected and non-service-connected disabilities and whether, standing alone, his service-connected disabilities warranted an award); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when effects of service-connected and non-service-connected disabilities cannot be separated, reasonable doubt requires that the signs and symptoms should be attributed to the service-connected disabilities). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.