Citation Nr: 21027948 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 14-09 224A DATE: May 7, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include schizoaffective disorder, bipolar type and substance abuse disorders is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for mental illness for the purpose of establishing eligibility for treatment under the provisions of 38 U.S.C. § 1702 is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the Veteran has posttraumatic stress disorder that arose during honorable active service, and is related to in-service personal assaults. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to September 1993. Her service from February 1974 to August 1991 has been characterized as honorable and her service from August 1991 to September 1993 has been characterized as dishonorable, due to a "bad conduct" discharge. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for posttraumatic stress disorder is granted. The Veteran asserts that she suffers from PTSD as a result of in-service sexual assaults, as well as exposure to dead bodies and seriously wounded service personnel when part of flight rescue operations during deployment to Saudi Arabia. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Claims of service connection for PTSD require a medical diagnosis conforming to the requirements of 38 C.F.R. § 4.125(a), an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in service, and established medical evidence connecting the current disability to the stressor. 38 C.F.R. § 3.304(f); see also 38 C.F.R. § 4.125(a); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). In claims with stressors based on personal assault, evidence from various sources may be used to corroborate the stressor, including evidence of behavioral changes following the claimed assault. 38 C.F.R. § 3.304(f)(5); see also Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (stating that medical opinion evidence can be used to corroborate the claimed stressor in personal assault cases). The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran asserts that she was subjected to continuous sexual harassment and racism during her time in the United States Army. In a July 2016 affidavit, she described instances including being repeatedly sexually grabbed by fellow servicemen and peeped on in the shower. She also described being repeatedly harassed, stalked, and grabbed by a particular serviceman while stationed in Texas for training in the 1970s, whom she reported and who was then reassigned. She alleges that when he came back on leave during the holiday, he found her in her dorm and assaulted her, leading to the military police being called and the assailant being arrested. She said she never felt safe after that and lived in a constant state of heightened awareness and fear. She described another specific incident while she was stationed in Saudi Arabia, where her immediate superior grabbed and squeezed her breasts in front of approximately 10-12 other soldiers. The Veteran reports that after the years of harassment and abuse, she became enraged and beat him up, then went and smashed items in his tent. She admits to using alcohol, cannabis, and cocaine while in the military, and was discharged dishonorably due to cocaine and marijuana abuse. The Veteran underwent VA examination for her PTSD claim in November 2011. The examiner found that the Veteran had a diagnosis of PTSD conforming to the DSM-IV criteria, as well as polysubstance dependence and mood disorder, NOS. At the time, the Veteran reported the two in-service personal assaults described above, as well as physical and sexual abuse as a child and being raped at 18 years of age. The examiner found that each of these stressors was adequate to support a diagnosis of PTSD, but confusingly also indicated that each (even the pre-military sexual abuse) was related to the Veteran's fear of hostile military or terrorist activity. The examiner's opinion was that "[d]etailed review of veteran's available military records, did not show evidence supporting the occurrence of sexual assault in active duty." As rationale, she noted that the medical progress notes and consults did not reveal markers that support the occurrence of a sexual assault. The Board finds this opinion to be inadequate for adjudicatory purposes. First, although the examiner made note of the Veteran's report of drug use during her military service, she did not discuss whether such misconduct could be construed as a behavioral marker to support the Veteran's lay report of the occurrence of military sexual trauma. Additionally, while the vast majority of the Veteran's service treatment records from her initial period of honorable active military service are illegible, military personnel records include notations which would seem to support the Veteran's account of events. Specifically, an evaluation from the late 1970s notes that the Veteran had the potential for becoming an outstanding medic and soldier, but that "personal problems" took time away from duty and "personality conflicts with a few peers" had greatly hindered this development. It was further noted that such problems were identified in counseling sessions, but that "she works in harmony with most co-workers." A 1988 performance evaluation was largely glowing, except for a notation that "presenting personal problems precluded continued performance in this position." Because the examination report makes no mention of this evidence, it is unclear whether it was considered. A private medical opinion from a licensed clinical psychologist was submitted on the Veteran's behalf in February 2017. He noted that the record indicates that the Veteran suffered from childhood sexual abuse, but disagreed with the VA examiner's finding that the PTSD was secondary to that, as there was no evidence to suggest mental health symptoms or diagnosis prior to service. The Veteran reported that the content of her PTSD-related flashbacks reflect on the sexual assaults and harassment during service and combat-related stressors while performing helicopter medical evacuations of seriously injured soldiers in Saudi Arabia. The examiner opined that her PTSD more likely than not developed during her period of honorable service, and that the symptoms worsened during her final two years in the military. He stated that it is clear that the mood, ideational, and behavioral symptoms were instrumental in her incurring a discharge under dishonorable circumstances, as her previously stellar behavior significantly degenerated as the acuity of the illnesses increased. Regarding the occurrence of a traumatic event, the examiner concluded that the Veteran's descriptions of her combat duty and multiple sexual assaults in the military were vivid, sufficiently detailed (at times including the mention of specific persons involved), and were compelling. He stated that he found the Veteran's descriptions of the events to be credible, and that these events are more likely than not the cause of her PTSD. Considering the notations in the Veteran's military personnel records regarding personal conflicts with particular individuals, and the clear decline of the Veteran's behavior and performance after returning from Saudi Arabia in April 1991, as well as the private medical opinion that such reflects the occurrence of in-service trauma, the Board finds that there are sufficient behavioral markers present in this case to corroborate the Veteran's report of in-service sexual assaults. Resolving all reasonable doubt in the Veteran's favor, the in-service criterion for an award of service connection has been met. The evidence of record thus demonstrates the presence of a current diagnosis of PTSD, the occurrence of an in-service personal assault, and an etiological connection between the two. Accordingly, a grant of the Veteran's claim for service connection for PTSD is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran asserts that she suffers from low back disability as a result of a low back injury sustained during her period of honorable active service. The Veteran was provided with a VA spine examination in December 2011. At that time, the Veteran was diagnosed with degenerative disk disease of L3-4 vertebra with spinal stenosis and grade 1 spondylolisthesis with radiculopathy. Under medical history, the examiner stated that an August 1992 service treatment record documented the Veteran's report of hurting her back in January 1986, and that the Veteran reported at the December 2011 examination that her in-service back injury resulted in admission to the hospital in Hawaii and x-rays allegedly showing a buckle fracture of the lumbar spine, and that she was given a back brace and was put on profile. The examiner stated that he could not give an educated opinion as to whether the Veteran's low back pain is service-connected without resorting to mere speculation. He reasoned that since discharge, there is no medical documentation of medical checkups for low back pain "until now" (December 2011), covering a period of 18 years. The Board notes, however, that the Veteran's VA treatment records include a December 2007 physical therapy initial evaluation report indicating that the Veteran reported chronic low back pain, and described injuring her thoracic spine during service in Hawaii. She reported that she was told it was a buckle fracture of thoracic 7 & 8. The physical therapist assessed low back pain and stated that "[p]ain is likely associated with degenerative changes, especially arthritic changes if patient did indeed fracture the thoracic spine in the past." The August 1992 service treatment record in question also noted that the Veteran's air reserve mission injury was in 1990 and that she had physical therapy intervention at that time and reported having 6 injections. The service treatment records also include an October 1992 record which is unfortunately somewhat illegible, but which appears to reference fracture ("fx") and the thoracic spine. As the conclusion of the December 2011 examiner appears to be based off an inaccurate factual premise, it is lacking in probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). On remand, an additional examination and medical opinion should be provided 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, is remanded. Review of the claims file reveals that relevant VA treatment records likely remain outstanding. The most recent VA treatment record on file is from March 2009, and most-recent mental health treatment record is from December 2007. A VA treatment record cover page indicates that the Veteran was admitted to a VA facility for mental health treatment in May 2017 and was discharged the next day. The full record of that inpatient treatment has not been associated with the claims file. Additionally, a February 2017 private medical opinion indicates that the Veteran had a "recent psychotropic regiment" which included an antipsychotic medication with mood stabilizing properties. At present, there are no mental health treatment records for the Veteran from any time during the relevant appeal period, from January 2011 to Present. On remand, the AOJ should make efforts to obtain any and all outstanding VA treatment records for the Veteran, and provide her with an opportunity to identify and/or submit any relevant private treatment records related to her claim. 3. Entitlement to service connection for a heart disability is remanded. As noted above, VA treatment records spanning more than a decade are not presently in the claims file. As the development to obtain these records could have a significant impact on a decision on the appeal concerning entitlement to service connection for a heart disability, this claim should also be remanded. 4. Entitlement to service connection for psychosis or other mental illness for the purpose of establishing eligibility for treatment under the provisions of 38 U.S.C. § 1702 is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD could significantly impact a decision on the issue of entitlement to service connection for psychosis or other mental illness for the purpose of establishing eligibility for treatment under the provisions of 38 U.S.C. § 1702, the issues are inextricably intertwined. A remand of the latter claims is therefore also needed. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2009 to the Present. 2. Ask the Veteran to identify any private mental health treatment she received during the relevant appeal period (January 2011 to the Present) and to complete a VA Form 21-4142 for any identified physician/facility. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination for her claimed back disability. The examiner must review the claims file, and be provided with a copy of this remand. 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: a. Identify a diagnosis for any back disability (mid or low back) present at any time during the relevant appeal period (January 2011 to present). b. Is any back disability at least as likely as not related to the Veteran's period of honorable military service (February 1971 to August 1991)? In responding to this inquiry, the examiner should note that the Veteran has reported and the available service treatment records document that she suffered an injury to her back in 1990. Provide a rationale to support any opinion or conclusion stated. In providing the requested opinion, consider the Veteran's description of her in-service injury and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (Continued on the next page) 5. After completing the above, and conducting any further development deemed necessary in light of the expanded record, readjudicate the Veteran's claims for entitlement to service connection for a low back disability, an acquired psychiatric disorder other than PTSD, and a heart disability and entitlement to service connection for mental illness other than PTSD for the purpose of establishing eligibility for treatment under the provisions of 38 U.S.C. § 1702. If any of the benefits sought are not granted in full, issue the Veteran and her representative a supplemental statement of the case and allow them an opportunity to respond before returning the appeal to the Board. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.