Citation Nr: 21013382 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-06 334 DATE: March 9, 2021 ORDER Entitlement to service connection for major depressive disorder (MDD) is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) claimed as secondary to military sexual trauma (MST) is granted. REMANDED Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, her diagnosed PTSD is causally related to a corroborated in-service stressor. 2. The evidence establishes that the Veteran’s major depressive disorder is attributed to her PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1986 to April 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO). This appeal was previously before the Board in June 2019, at which time the claims were denied on the merits. The Veteran timely appealed to the United States Court of Appeals for Veterans’ Claims (CAVC). In a Joint Motion for Remand (JMR), the parties agreed that the Board failed to provide adequate reasons and bases to support its denial of the claims. In relevant part, the parties agreed that the Board did not adequately address whether the Veteran’s in-service administrative offenses were indicative to her claimed MST. In a September 2020 Order, the Court granted the parties’ Joint Motion and remanded the appeal for action consistent with the terms of the JMR. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). PTSD due to MST 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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) and 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the DSM-IV/V). If a PTSD claim is based on Military Sexual Trauma (MST) or personal assault in service, evidence from sources other than the veteran’s records may corroborate the veteran’s 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. Mengassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011); 38 C.F.R. § 3.304(f)(5). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). It is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the merits of the claim, the Veteran contends that she has PTSD secondary to MST. She avers that her documented offenses and reprimands during service are evidence of the occurrence of MST. Upon consideration of the evidence and resolving all reasonable doubt in the Veteran’s favor, the Board agrees and finds that service connection for PTSD secondary to MST is warranted. In regard to a nexus, there are two opinions of record. At the July 2014 VA examination, the examiner diagnosed both PTSD and major depressive disorder. Upon consideration of the Veteran’s statements and review of the record, the examiner opined that the Veteran’s statements support the occurrence of MST and the claimed stressor is adequate to support a diagnosis of PTSD. See also, VA Examination dated December 2019. Most recently, in November 2020, the Veteran underwent a private psychological evaluation. Upon review of the record and interview of the Veteran, the examiner diagnosed the Veteran with PTSD and MDD. The examiner reviewed the Veteran’s service treatment records and military personnel records and found that the Veteran’s documented behavioral changes, as evidenced by various administrative remarks and offenses, were indicative that MST occurred. Based on the in-service markers, the examiner opined that the Veteran had PTSD with MDD secondary to MST. In Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that under § 3.304(f)(5), “medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated.” This holding was based, in part, on the final rule for 38 C.F.R. § 3.304(f)(5) which stated that a doctor’s diagnosis of PTSD based on personal assault may constitute competent medical evidence sufficient to corroborate the stressor. 67 Fed. Reg. 10330-31 (Mar. 7, 2002). Resolving reasonable doubt, the Board finds that the Veteran’s diagnosed PTSD is causally related to a corroborated in-service stressor. In this respect, the Board finds no evidence impeaching the November 2020 private psychologist’s interpretation that the Veteran’s account of an MST event is credible which, per Menegassi, is sufficient corroboration. The claim, therefore, is granted. Major Depressive Disorder Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, may be service connected on an aggravation basis. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). In this case, the Board finds that the evidence establishes that the Veteran’s major depressive disorder is attributed to her PTSD, and thus service connection is warranted on a secondary basis. Both the July 2014 VA examiner and November 2020 private psychologist diagnosed the Veteran with major depressive disorder secondary to her PTSD. Given these competent opinions, and the lack of competent and probative evidence to the contrary, the Board finds that service connection for MDD is warranted. REASONS FOR REMAND The Veteran is seeking service connection for headaches; that claim was initially denied in the June 2019 Board decision. In the September 2020 JMR, the parties agreed that the July 2014 VA examination and negative nexus opinion, upon which the June 2019 Board denial was based, was inadequate. The parties reasoned that the July 2014 nexus opinion did not consider private treatment records documenting the Veteran’s history of headaches and relevant treatment nor did the examiner consider the Veteran’s lay statements regarding experiencing headaches since service. Accordingly, remand is required to obtain an adequate nexus opinion considering the Veteran’s documented medical history. The matters are REMANDED for the following action: 1. Associate with the claims folder updated private and VA treatment records. 2. Schedule the Veteran for a VA examination with the appropriate examiner to assess the nature and etiology of her headaches. The Veteran’s complete claims file must be made available to the examiner and the examiner should note that the claims file was reviewed. All pertinent symptomatology and findings must be reported in detail. Any necessary tests and studies must be accomplished. Upon review of the record, the examiner should determine whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s headaches began in service or were caused by or otherwise etiologically related to her service. a) In providing the requested opinion, the examiner should consider the Veteran’s private treatment records, which document treatment for headaches in the 1990s. b) The examiner should also consider the Veteran’s lay statements describing experiencing headaches since service. The examiner should provide medical opinion as to whether there is any medical reason to accept or reject the Veteran’s contentions that she has manifested the same type of headaches since service. A complete rationale for all opinions must be provided. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.