Citation Nr: 21028114 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-37 585 DATE: May 10, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), generalized anxiety disorder, and depressive disorder, is remanded. REASONS FOR REMAND The Veteran had active service from August 1979 to September 1982. This matter comes to the Board of Veterans' Appeals (Board) on an appeal from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). The Veteran subsequently testified at a hearing before the undersigned Veterans Law Judge in July 2020. A transcript of the hearing has been associated with the Veteran's claims file. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the issue on appeal as noted. 1. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), generalized anxiety disorder, and depressive disorder Service treatment records document an assault in December 1979. The Veteran stated that he was beaten by his squad leader. He reported that his squad leader told him to get a haircut and when he told his squad leader he had no money, the squad leader took the Veteran to his room and proceeded to" punch on him." He stated that he fell to the floor and the squad leader began kicking him. The Veteran reported the incident and was treated for injuries. He had a cut above his left eye, which was also swollen. He had a scrape along his left ear that he described as very painful. He also complained of dizziness. In addition, he told medical personnel that his head was very sore and his back was very sore. He was informed that he was already on profile for his back. In April 2018, the Veteran submitted a private PTSD clinical assessment dated August 2017. The Veteran reported that he was assaulted in Panama in the time period of January 1980 to June 1981 by sergeants in a unit that knew he saw them smuggling drugs using trucks and jeeps. He stated that four of them "beat me near death. I went AWOL for 3 days cuz I didn't know what to do." He stated that he got 30 days extra duty for the AWOL. The psychologist noted that the Veteran presented with complaints of recurrent traumatic nightmares and horrific recollections of service-related trauma which contributes to debilitating levels of duress and distress. The psychologist noted that the Veteran also identified severe sleep disturbances, extreme sadness, depressive episodes, auditory hallucinations, feelings of hopelessness, feelings of worthlessness, transient panic attacks and transient suicidal ideation "as contributing to significant impairments functioning across domains." The psychologist found that the Veteran presented with many signs and symptoms consistent with those found in individuals who meet the diagnosis criteria for PTSD, chronic, severe, comorbid with major depressive disorder, recurrent, severe, with psychotic features, comorbid with generalized anxiety disorder, severe, comorbid with schizotypal personality disorder. The Veteran was afforded a VA examination in April 2018. The Veteran reported an assault that occurred in 1980 when he saw people loading bags of drugs and another assault by two sergeants. He was beaten and was AWOL for 3 days. He reported sleep disturbance, including an erratic sleep pattern and recurring dreams of being captured and handcuffed to a jeep. The examiner found that this stressor meets the criteria to be adequate to support a diagnosis of PTSD, and would be considered related to the Veteran's fear of hostile military or terrorist activity. The examiner found the stressor was not related to personal assault. The examiner noted symptoms of depressed mood and anxiety. The examiner found that the Veteran did not meet the diagnostic criteria for PTSD under DSM-5 criteria. The examiner provided a diagnosis of depressive disorder unspecified; he stated that this disorder was less likely than not incurred in or caused by service. The examiner's rationale was as follows: Reviewed VBMS medical records in detail. Could not locate any documentation of clinical records regarding any psychiatric symptoms secondary to distress caused by any traumatic experiences in service, including physical assault by squad leader. Based on the review of history provided by Veteran and review of clinical notes, his depression is at least as likely as not secondary to financial stress. The May 2018 rating decision denied service connection for PTSD. The Veteran filed a timely Notice of Disagreement and stated that he has a current diagnosis of PTSD from a private physician and a diagnosis of depressive disorder from a VA examiner. The Veteran then testified at the hearing in July 2020 that he submitted private treatment records that contain a diagnosis based on DSM-5 criteria with comorbidities of major depression, generalized anxiety disorder and schizo type personality disorder. The Veteran's representative noted that the private evaluation endorsed a positive association between the Veteran's service and his current psychiatric disorder. The psychologist stated that the Veteran presented with "complaints of recurrent vivid nightmares and horrific recollections of service-related trauma, which contributes to debilitating levels of duress and distress." The Veteran's representative noted the December 1979 assault that is documented in the Veteran's service treatment records. He also noted that the Veteran's personnel records show that he was AWOL from January 13, 1981, to February 1, 1981. The Veteran stated that following the 1979 assault, he was left in the unit. He stated that "I just stayed low. I still had to stay in the same barracks so it was all very scary." He stated that after being transferred to Germany, he tried to stay busy and volunteered for everything he could. He felt that there was something hanging over his head from the assaults. He testified that even when he was home safe out of the military, he still felt "weird" and started trying to seek help. In the early 1990s, he saw a local psychiatrist. He went to the local community health center. He then sought treatment at the VA. The Board finds that the 2018 VA examiner failed to adequately address all of the evidence favorable to the Veteran, requiring remand for a new examination and opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner failed to adequately consider the confirmed stressor of the assault that is documented in service treatment records; the private psychologist's evaluation addressing that stressor and his diagnosis of the Veteran's symptoms; or the Veteran's statements pertaining to that assault. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The examiner focused on other nonservice-connected possible causes of the Veteran's diagnosed depressive disorder, providing only a speculative and conclusory statement that this disorder is likely due to financial difficulties. The U.S. Court of Appeals for Veterans Claims has held that the "probative value of a medical opinion primarily comes from the physician's reasoning." Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A VA medical opinion "may not be preferred over a private medical opinion solely because the VA examiner reviewed the claims file." Nieves at 295. A remand is necessary in order to provide the Veteran with an additional VA examination and etiological opinion regarding direct service connection for any acquired psychiatric condition, to include PTSD and depressive disorder. In December 2020, a PTSD evaluation by a social worker for Catholic Charities was submitted. The social worker found that determined that the Veteran meets the diagnostic criteria for PTSD and also diagnosed generalized anxiety disorder which "mimics PTSD on a daily basis." This evidence should also be considered on appeal. Finally, the Board notes that the Veteran is seeking service connection for PTSD based on personal assaults during service. In claims for PTSD based on personal assault, VA has a heightened duty to notify the Veteran. Gallegos v. Peake, 22 Vet. App. 329 (2008); 38 C.F.R. § 3.304 (f)(5). VA will not deny a PTSD claim that is based on in-service personal assault without first advising the Veteran that evidence from sources other than service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304 (f)(5). Therefore, additional notice regarding this issue should be sent to the Veteran and allow him a reasonable amount of time to submit additional evidence that may corroborate his report of the in-service assaults. The matters are REMANDED for the following action: 1. Send notice to the Veteran that complies with the requirements of 38 C.F.R. §3.304(f)(5) regarding his claim for service connection based on personal assaults, informing the Veteran that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of his reported assaults. 2. Provide the Veteran with an appropriate VA psychological examination to determine the nature and etiology of the Veteran's acquired psychiatric disorder to include, but not limited to, PTSD, generalized anxiety disorder, and depressive disorder. The Veteran's file must be reviewed by the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorder, to include PTSD, generalized anxiety disorder, and depressive disorder, is related to the Veteran's active duty military service, specifically to include his reported in-service personal assaults. . The examiner should address all evidence favorable to the Veteran, including but not limited to the Veteran's confirmed stressor, medical records, symptoms, diagnoses, lay statements, and the November 2020 PTSD evaluation. A clear rationale for all opinions should be provided. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.