Citation Nr: 21021249 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-18 278 DATE: April 12, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder including posttraumatic stress disorder (PTSD), claimed as a result of military sexual trauma (MST), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1983 to March 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this claim was initially denied in a March 2011 rating decision. Within one year of this decision, new and material evidence was submitted. The RO reconsidered and continued to the deny the claim in November 2012. Accordingly, this appeal has been ongoing since the original September 2010 claim for service connection. 38 C.F.R. § 3.156(b). The record shows that the Veteran withdrew her request for a Board hearing in this appeal. See Correspondence (July 2019).   Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that she was sexually assaulted twice while in service. See VA 21-4138 Statement In Support of Claim (September 2010). To ensure that VA has met its duty to assist, remand is necessary for the following reasons. 38 U.S.C. § 5103A. First, the Board finds that additional efforts should be made to attempt to obtain the Veteran’s service personnel records (SPRs). Efforts to obtain the records from all potential repositories should be made and documented; the Veteran should be informed of the outcome of those efforts if unsuccessful; and, to the extent that efforts are unsuccessful, a formal finding memorandum documenting both the requests for records from the repositories and responses therefrom should be associated with the claims file. It is noted that an October 2010 PIES (Personnel Information Exchange System) response reflects that all available SPRs were mailed via microfiche. See VA 21-3101 Request for Information (November 2010). However, the Veteran’s SPRs may be incomplete, because they appear to be scarce and do not include the Veteran’s reportedly documented assault in 1985 and a request for transfer. It is noted that SPRs may include important evidence in support of the Veteran’s report of psychiatric disability caused by MST in service. Hence, to ensure that VA has fulfilled its duty to assist and can unequivocally demonstrate such to the Veteran with fully documented requests and responses, remand is warranted. Second, additional development of the Veteran’s reported MST stressor incidents is warranted. First, she stated that, while at reception station before basic training at Fort Jackson in October or November 1983, she was attacked by an SP 4 with red hair, who tried to lock her in a room, but she was able to escape. See VA 21-0781a, Statement in Support of Claim for PTSD Secondary to Sexual Personal Assault (March 2012). She stated that she did not report this incident. See VA 21-4138 Statement In Support of Claim (September 2010). Second, at Fort Lewis, the Veteran reported being assaulted by a noncommissioned officer (NCO) in charge of her, SFC R.R., which she said she reported in 1985. Id. She stated that she reported this incident to CW3 G. in Ft. Lewis, and that she was told that SFC R.R. reported that it was consensual. See VA 21-0781a, Statement in Support of Claim for PTSD Secondary to Sexual Personal Assault (March 2012). The Veteran, via her representative, points to her personnel records showing that she requested to be transferred from her military duty assignment, which the Veteran reported was due to her report to CW3 G of the assault. See NOD (November 2013). She submitted a buddy statement from her former fiancé who indicates first-hand knowledge of the incident. This individual reported that the Veteran had been sexually assaulted while in service twice, including once in basic training, which she did not report, and once at Fort Lewis, which she did report. See Buddy/Lay Statement (September 2010). She also submitted a statement from her former partner, who described her symptoms during their relationship including him referencing two sexual assaults during service. See Military Personnel Record (August 2014). Also, in support of her claim, the Veteran submitted a May 2010 psychiatric assessment from her VA treating physician at the time of her being admitted into Substance Abuse Rehabilitation & Treatment Program indicating that she has PTSD related to in-service MST. See Correspondence (March 2012). There is no indication that the VA physician adequately reviewed relevant records to address the Veteran’s mental health problems. Notably, while he noted childhood trauma as reported by the Veteran, he also noted that the Veteran reported in-service incidents of assault, and that she became pregnant after the first assault and was transferred after that incident. This report is incongruous with the Veteran’s reports of requesting transfer after the second incident of reported assault. The Veteran submitted another psychiatric assessment from a VA physician, Dr. C.H, who noted prior to history of sexual assault by father and MST, and diagnosed PTSD with the estimated onset in 1996-1997. No etiology opinion with rationale was provided. See Medical Treatment Record - Non-Government Facility (January 2016). Most recently, the Veteran, via her representative, provided a mental health evaluation conducted by Dr. D.W., Ph.D., dating to June 2019, who concluded that the Veteran struggles with PTSD due to MST. See Correspondence (July 2019). However, an adequate medical opinion must be “accurate and fully descriptive,” 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran’s prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, an opinion “must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (“most of the probative value of a medical opinion comes from its reasoning”). An adequate medical examination report or opinion must also “sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.” Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In sum, although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was “informed of sufficient facts upon which to base an opinion relevant to the problem at hand.” Nieves-Rodriguez, 22 Vet. App. at 303. Here, since the Veteran’s diagnosis of PTSD under DSM-V has not been established based on a corroborated in-service stressor as the Veteran’s military sexual trauma has not been confirmed, the examiner’s opinion with no rationale has diminished probative value and is insufficient to award the benefit sought. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see Nieves-Rodriguez, supra. Additionally, Dr. D.W. explicitly concluded that the Veteran indicated that her mental health issues were a direct result of the sexual assault by her supervisor, and “As such, her PTSD is the result of an in-service stressor.” See Correspondence (July 2019). However, as noted above, the Veteran’s reports have not been confirmed. As such, the evidence described above is inadequate to decide the matter of service connection for an acquired psychiatric disorder to include PTSD due to MST. The Board notes service treatment records (STRs) dating to August 1985 showing increase in menstrual flow. See STR-Medical (August 2014). Moreover, the Veteran reported being raped twice in service during her treatment in October 2005, prior to filing her claim. See CAPRI (December 2015). In this case it is appropriate to submit the available evidence to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred, to include whether the attempted rape/assault is sufficient to support a diagnosis of PTSD. See 38 C.F.R. § 3.304 (f)(5). Also, a VA examination is necessary to identify all mental disorders shown during the appeal period and to opine on whether it had its onset in service or is otherwise related to injury or disease during any period of active service. It is noted that the VA treatment records indicate findings for symptoms of anxiety and depression, as well as unspecified personality disorder and bipolar disorder. Lastly, there are outstanding treatment records as no VA treatment or private treatment records from November 2015 to the present have been associated with the Veteran’s file. See 38 U.S.C. § 5103A; Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Take appropriate action to attempt to obtain the Veteran’s complete service personnel records. Document all requests for information from official sources/repositories as well as all responses in the claims file. If records are unavailable, a formal finding of unavailability outlining the documented efforts taken should be prepared and associated with the claims file. Notify the Veteran of any unsuccessful efforts to obtain the records and provide her another opportunity to provide copies of those records. 2. Attempt to corroborate the Veteran’s in-service stressor based on personal assault, including an attack in October or November 1983 and an attempted rape by an NCO in 1985. If more details are needed, contact the Veteran to request the information. 3. Obtain all outstanding VA treatment records from November 2015 to the present. 4. Ask the Veteran to complete a VA Form 21-4142 for any relevant private treatment records Make two requests for the authorized records from any identified providers, unless it is clear after the first request that a second request would be futile. 5. After the Veteran’s reported stressors have been developed, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD) along with any other mental disorders found. (a.) As the Veteran’s stressors are based on an in-service personal assault, the examiner must opine on whether the evidence of record, including the Veteran’s lay statements, statements of her former partners, and any other evidence of record, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304 (f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault or assaults. Further, to the extent that the Veteran experienced an attempted rape/sexual assault during active service, is this sufficient to support a diagnosis of PTSD. (b.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. The examiner must provide a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.