Citation Nr: 21012881 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-03 915 DATE: March 5, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. FINDING OF FACT 1. The evidence is approximately evenly balanced as to whether the Veteran currently has an acquired psychiatric disorder which is the result of stressful events in service. 2. There is not clear and unmistakable evidence showing that the Veteran’s acquired psychiatric disorder preexisted service and was not aggravated by service. CONCLUSIONS OF LAW 1. The Veteran is presumed to have been in sound condition when she was examined, accepted and enrolled for service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 2. With respect to the Veteran’s current acquired psychiatric disorder, the record does not include clear and unmistakable evidence rebutting the presumption of soundness. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 3. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2008 to November 2008. This case comes to the Board from a January 2015 decision of the Agency of Original Jurisdiction (AOJ), which denied service-connected compensation for posttraumatic stress disorder (PTSD), depression, and anxiety. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the issue is properly understood as one broad claim for service connection for any acquired psychiatric disorder which may be related to service. In September 2019, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The Board remanded this appeal for further development in October 2020. Service Connection for an Acquired Psychiatric Disorder Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran’s hearing testimony and certain post-service mental health treatment records raise the issue of whether the Veteran may have had a psychiatric disorder before joining the Army National Guard, implicating the presumption of soundness. See Gilbert v. Shinseki, 26 Vet. App. 48, 54 (2012). Under this statutory presumption, except for defects, infirmities or disorders noted on an entrance examination, every veteran is generally presumed to have been in sound condition when examined, accepted and enrolled for service. See 38 U.S.C. § 1111. A medical history, even if recorded at the time of examination does not constitute a notation of such conditions for the purposes of the presumption of soundness. 38 C.F.R. § 3.304(b)(1). “When no preexisting condition is noted up on entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphasis added). This is a difficult burden to overcome because the clear and unmistakable standard is a high one and because of the two-part nature of the burden. Moreover, with respect to the aggravation prong of the burden, the Secretary is in the unusual position of being required to prove a negative. See Horn v. Shinseki, 25 Vet. App. 231, 238 (2012) (“When the presumption of soundness applies, however, the burden remains on the Secretary to prove lack of aggravation and the claimant has no burden to produce evidence of aggravation.”) Factual Background The Veteran attributes that her current psychiatric disorder to a sexual assault which she claims occurred during her active duty service. In a December 2015 statement, she provided a description of the incident which, according to her, occurred in the summer of 2008 at Fort Leonard Wood in Missouri. Service treatment records include an entrance examination report, dated March 2008, which described her psychiatric condition as normal. Military personnel records indicate that she was released from her National Guard unit before the initially anticipated period. The reasons she was not permitted to continue in her unit include her failure to complete certain training requirements and having been absent without leave (AWOL) from her unit 15 times. Post-service mental health treatment records include notes concerning a brief hospitalization for depression in December 2012 and an examination report prepared by the Social Security Administration (SSA) in February 2013, which indicates depression, anxiety and “rule out PTSD.” The SSA examination report describes episodes of childhood sexual abuse. Subsequent records, dated September 2015, include similar descriptions of the alleged in-service assault and diagnoses of major depressive disorder, recurrent episode, with psychotic features, PTSD, and panic disorder. Based entirely on her mental illness symptoms, the SSA granted the Veteran disability benefits. To help decide this claim, the AOJ arranged for a VA psychologist to examine the Veteran in November 2016. The examiner’s report concludes that the Veteran did not have a PTSD diagnosis conforming to the criteria listed in the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). According to examiner, she could not identify a specific diagnosis without speculating. The report includes a detailed summary of the Veteran’s interview with the examiner, which mentions both pre-service sexual abuse and a description of the alleged in-service assault similar to the version provided in the Veteran’s earlier written statement. In the examination interview, the Veteran initially misidentified the year in which the incident occurred as 2007, because she remembered that she was 17 years-old at the time. When the examiner reminded her that she was not in service during 2007 and would have been 17 during part of 2008, she stated, “That makes sense. I guess I’ve had it wrong this whole time.” According to the examiner, “Her report was disorganized and perseverated on paranoia related to fear that the assailants involved in her reported [assault] would ‘find me and kill me or my family.’” The examiner wrote that the Veteran’s “suspected over-endorsement of symptoms” during psychological testing made “the testing invalid and uninterpretable. Given all of the above information, it is not possible to assign a mental health diagnosis without speculating.” The Veteran told the examiner that, after the in-service assault, she “withdrew from activities involving the Army and when this was reviewed and she explained the reason for being AWOL, she was offered an honorable discharge.” In the years after her discharge from the service, the Veteran was frequently homeless. She had a few brief jobs working in restaurants but was unemployed and relying on SSA disability benefits by the time of the first VA examination. In the examiner’s opinion, the Veteran was not competent to manage her own financial affairs. A few weeks later, the November 2016 examiner provided an addendum report after reviewing the SSA records and the Veteran’s post-service private mental health records. In her current electronic claims file, the addendum is part of the same document as the original report. The examiner wrote that the information in the records “does not change the medical opinion I provided. . .” The examiner continued to conclude that, “I am unable to provide a medical opinion within a reasonable degree of medical certainty without resorting to mere speculation.” In January 2017, the AOJ arranged another examination with a different psychiatrist, who provided a similar report. One major difference between the two reports is that the second examiner indicated that, in his opinion, the Veteran was capable of managing her own finances. But, like the first examiner, the second examiner referred to “overreporting” during a series of psychological tests, rendering the results unreliable. The examiner wrote that, “This is not an indication the Veteran is asymptomatic, it simply suggests the current results are not accurate.” The examiner wrote that whether the in-service sexual assault described by the Veteran actually occurred “is a legal question, not a clinical one.” It was not uncommon, the examiner explained, for events like the one described by the Veteran to go unrecorded in service records: “Unless a service member actively seeks help, and any complaint or services received while active military are documented, only egregious or repeated behavioral disruptions or signs of emotional impairment are likely to result in formal documentation. Further, there are no behavioral-emotional sequelae specific or uniquely related to military sexual assault or personal assault.” The examiner also wrote that, “the Veteran’s traumatic stressor is somewhat consistent with her reported trauma-related symptoms. However, the inconsistency of her report during her previous C&P examination and on current psychological testing would require the examiner to resort to speculation should he attempt to confidently opine if greater than 50 percent of the Veteran’s functional impairment is attributed to her claimed condition.” It would also require speculation, the examiner concluded, to “determine within a reasonable degree of confidence the nature of her mental disorder and the severity of her symptoms. Thus, no diagnosis is provided at this time.” The most recent VA examination took place in January 2018. Like the earlier reports, the latest report indicates that the examiner could not make a PTSD diagnosis that would satisfy the DSM-5 criteria. Part 4(b) of the examination questionnaire further indicates that no other mental order was diagnosed. Yet, when asked to assess the level of occupational and social impairment associated with all mental diagnoses, the examiner indicated the presence of occupational and social impairment due to mild or transient symptoms which decrease work efficiency only during periods of significant stress – i.e., the criteria for a 10 percent rating for a mental disorder under 38 C.F.R. § 4.130. Part 5 of the questionnaire (“Symptoms”) indicated depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances and persistent delusions or hallucinations. Like the earlier examiners, the January 2018 examiner described a series of psychometric tests he administered to the Veteran, which were designed to provide “empirically-grounded probabilistic evidence to aid in making sound clinical or forensic opinions regarding the veracity of symptom presentation for purposes of diagnosing PTSD . . .” The examiner wrote that the Veteran’s test results were invalid because she was “overreporting” symptoms. “This is not an indication the Veteran is not experiencing considerable distress,” the examiner wrote, “simply that test results are not an accurate reflection of [her] current symptoms.” According to the January 2018 examiner, “The fact that she was able to provide content specific subthreshold PTSD symptoms suggests that she is as likely as not to have a diagnosis of PTSD which is related to military sexual trauma based on the markers of her being AWOL. Based upon her record, her report, her inability to hold a job, and her chronic homelessness, she appears to meet the criteria for seriously and persistently mentally ill. Unfortunately, on current psychological testing she produced an invalid profile due to exaggerated response style. Because of this, current testing was not able to aid in diagnostic clarification.” To further explain the meaning of the test results, the examiner wrote that, “The evidence of over-endorsement of symptoms does not mean that symptoms are absent, but that objective test evidence of over-endorsement of symptoms means that the presence and severity of current symptoms cannot be determined and that her account of symptoms cannot be taken at face value. As such, no clinical opinion of the presence of a psychiatric disorder can be made at this time.” In April 2018, the examiner provided an addendum report in response to inquiries from the AOJ as to whether further testing would help clarify the Veteran’s diagnosis. Because three sets of test results had been invalid, the examiner wrote that, in his opinion, further testing would not be useful. The other medical evidence includes records from a private mental health facility which indicate that, in July 2019, “Based on the clinical interview and screeners completed [she] meets diagnostic criteria for PTSD. She also meets diagnostic criteria for Major Depressive Disorder, recurrent, severe.” In September 2019, the Veteran testified at the hearing. Through her representative, she acknowledged a pre-existing psychiatric condition associated with abuse during her childhood. Her representative suggested that the in-service assault caused the Veteran’s symptoms to deteriorate. She further argued that the record of numerous periods of having been absent without leave supported this conclusion. The Veteran testified that the incident took place during the summer of 2008, when she was at Fort Leonard Wood. According to the Veteran, she eventually reported the incident to her company commander. After the Board remanded the case for further development, an AOJ employee was apparently able to contact the company commander and wrote a brief summary of their telephone conversation. The employee’s notes read: “Spoke to Unit commander nothing was filed / no statement / ask by commander if she wanted treatment went home and next time was discharge[d] from the military.” The most recent VA medical records indicate that the Veteran was still receiving treatment from a psychiatrist. That psychiatrist’s most recent note identifies three DSM-5 diagnoses: PTSD, panic disorder, and borderline traits. Analysis The AOJ denied service connection for a psychiatric disorder based on the descriptions of the psychological testing provided by the November 2016, January 2017, and January 2018 VA examiners. The AOJ seems to have interpreted the psychological testing evidence of overreporting of symptoms as a conclusion that either the in-service sexual assault described by the Veteran did not occur or that the Veteran did not have a current psychiatric disorder, or both. But either conclusion seems inconsistent with the details of the examination reports. As the January 2017 examiner correctly explained, whether the Veteran was actually attacked by fellow soldiers in the summer of 2008 “is a legal question, not a clinical one.” The same examiner rejected the suggestion that the test results indicated the absence of a psychiatric disorder: “This is not an indication the Veteran is asymptomatic, it simply suggests the current results are not accurate.” The Board finds that the psychological test results described by all three VA examiners suggest that caution should be used when assigning a specific diagnosis to the Veteran’s claimed disability and in taking the Veteran’s descriptions of the current intensity of her symptoms at face value. That is essentially what the most recent examiner stated when he wrote, “Because of [the Veteran’s exaggerated reporting], current testing was not able to aid in diagnostic clarification” and “The evidence of over-endorsement of symptoms does not mean that symptoms are absent, but that . . . the presence and severity of current symptoms cannot be determined and that her account of symptoms cannot be taken at face value.” Fortunately for the Veteran, at this stage of her claim, neither the precise diagnosis nor the current severity of her disability is particularly significant. The issue before the Board is whether any current psychiatric disorder, whatever the correct diagnosis, is related to her active duty service. See Clemons, 23 Vet. App. at 5. The current severity of the Veteran’s disorder is highly relevant to the issue of appropriate disability rating – i.e., her level of compensation – should be. But the issue in this appeal is whether the current disorder, whether mild or severe, is related to service. Unlike the certain disabilities, such as hearing loss or hypertension, compare e.g. 38 C.F.R. §§ 3.385, 4.104, Diagnostic Code 7101, Note (1), the relevant statutes and regulations do not require any particular psychological test results to satisfy the current disability requirement in a claim for service connection for an acquired psychiatric disorder. The evidence in this case includes diagnoses of multiple psychiatric disorders from apparently qualified mental health professionals, including the Veteran’s most recent treating psychiatrist. If the VA examiners had explained that their probabilistic psychological tests were both more reliable than the diagnoses of treating mental health providers and that the Veteran’s specific test results supported a finding that she actually had no psychiatric disorder, then it might be reasonable to find that, because of her overreporting, the evidence failed to satisfy the current disability requirement. But the VA examiners did not go so far. Indeed, the examiners clearly stated that the results should not be treated as evidence that the Veteran was asymptomatic. Moreover, the first VA examiner’s suggestion that the Veteran was not competent to manage her own finances tends to undermine the suggestion that she had no current psychiatric disorder. For these reasons, based on the post-service treatment records reflecting diagnoses of varying psychiatric disorders, including major depressive disorder and PTSD, the Board finds that the evidence satisfies the current disability requirement of the claim. Thus, the claim’s success depends on whether it is at least as likely as not that the current psychiatric disorder is related to service. See, 573 F.3d at 1287. For at least three reasons, it is at least as likely as not that the claimed in-service sexual assault actually occurred, and that the current disability is related to that event. First, 38 C.F.R. § 3.304(f)(5) requires evidence of corroboration when a claim for service connection for PTSD is based on a claimed in-service personnel assault. Under this subsection, evidence of behavioral changes in service personnel records, including “deterioration in work performance” are examples of the kind of evidence that can satisfy the corroboration requirement. As her representative argued during the hearing, the personnel records indicating that the Veteran went AWOL on fifteen occasions and failed to complete a training required for retention in her unit are highly similar to the kind of corroborating evidence described by 38 C.F.R. § 3.304(f)(5). Secondly, the January 2018 VA examination report includes commentary suggesting that the Veteran does have a severe mental illness which is related to an in-service assault: “The fact that she was able to provide content specific subthreshold PTSD symptoms suggests that she is as likely as not to have a diagnosis of PTSD which is related to military sexual trauma based on the markers of her being AWOL. Based upon her record, her report, her inability to hold a job, and her chronic homelessness, she appears to meet the criteria for seriously and persistently mentally ill.” Third, the report of the conversation between the AOJ employee and the Veteran’s former company commander seems to corroborate the Veteran’s hearing testimony that she reported the incident shortly before her discharge from active duty. According to the summary of the conversation, although the commander made no formal report of the incident, the commander told the AOJ employee that “[the Veteran was] ask[ed] by commander if she wanted treatment [and] went home and next time was discharge[d] from the military.” If the Veteran did not tell her company commander that something distressing had happened to her, it is difficult to understand why the commander would suggest that she might need treatment. Finally, because no psychiatric disorder was noted in the report of her March 2008 entrance examination report, the Veteran is presumed to have been in sound condition when she began active duty service. See 38 U.S.C. § 1111. Having found that she has a current psychiatric disorder which existed in service, the Board can only deny this claim if the evidence clearly and unmistakably proves that the disability both pre-existed service and was not aggravated by service. Wagner, 370 F.3d at 1096. Although none of the medical opinions in this case directly addressed whether the evidence of a pre-existing psychiatric disorder is strong enough to rebut the presumption, the January 2018 VA examiner’s comment – “[the interview] suggests that she is as likely as not to have a diagnosis of PTSD which is related to military sexual trauma based on the markers of her being AWOL” – is implicitly, but clearly, inconsistent with the theory that the evidence in this case could overcome the presumption. The only relevant facts documented in the service treatment records are that her pre-existing psychiatric symptoms, if any, went totally undetected by the initial examiner when she joined the service in March 2008 and that, by October of the same year, she had failed to complete a required training and had been AWOL 15 times. This evidence does not clearly and unmistakably show that a pre-existing disorder was not aggravated in service. For these reasons, and notwithstanding the uncertainty about the severity of her symptoms and the precise nature of her diagnosis, the Board finds that it is at least as likely as not that the Veteran’s current psychiatric disorder is related to an in-service personal assault. By law, the doubt resulting from this equipoise in the evidence is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only ‘an approximate balance of positive and negative evidence’... , the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). Accordingly, the Board will grant service connection for an acquired psychiatric disorder. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.