Citation Nr: 21028936 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-28 490 DATE: May 12, 2021 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1976 to April 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2013 and February 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter for further development in May 2018 and April 2020. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2017. A transcript of the hearing is of record. Entitlement to service connection for PTSD is remanded. The Board sincerely regrets the delay in issuing a decision on this claim, but finds that another remand is necessary, for the reasons that follow. The Veteran claims service connection for PTSD based on a reported in-service personal assault. In April 2020, the Board remanded the claim for an addendum VA medical opinion that provided an adequate supporting rationale for the conclusion reached. In this regard, the Board instructed that the opinion should address the Veteran's June 1977 suicide gesture and other behavioral issues noted during service. The Board found that the April 2019 VA medical opinion did not provide a supporting rationale for its finding that the Veteran's "history of childhood physical and sexual abuse, and chaotic childhood are primary contributors to his PTSD and alcohol use diagnoses." A VA medical opinion by a psychologist was provided in May 2020. Unfortunately, that opinion is also not supported by an adequate explanation. In this regard, the examiner concluded that the Veteran's "psychiatric conditions/PTSD" were less likely than not caused by an in-service disease, injury, or illness. The bulk of the opinion is simply a detailed summary of pertinent evidence in the record, without comment. Following that review, the examiner stated that the Veteran's performance issues during service, including intoxication and a suicide gesture, preceded the claimed assault and thus it was not possible to "establish a temporal association between" these potential markers for trauma and the claimed stressor. The examiner added that given the Veteran's history of "childhood abuse/trauma," it is not possible to rule out or assess the impact that his "premorbid trauma" had on his functioning and his adjustment to military life and "stressors thereof" without resorting to speculation. The Board finds the May 2020 opinion insufficient to make an informed decision. More specifically, it does not consider whether the Veteran's reported stressor may have occurred earlier than he has related based on his memory, which would then put into question the examiner's assumption that the Veteran's behavior issues occurred prior to the stressor and thus could not be markers of trauma associated with it. The opinion also does not adequately explain why it is not possible to determine without speculation whether his apparently significant history of childhood issues had a bearing on his behavior during service. The Veteran has stated that the personal assault occurred "on or about" October 1977. See December 2012 VA Form 21-0781. Elsewhere he stated that it occurred "maybe" in late 1977, indicating by that word that he is unsure of the date. See August 2013 VA Examination Report. As he reported an experience based on his memory of an event that would have occurred well over thirty years prior to these statements, his memory of the date might not be accurate. Thus, the fact that he provided a date in late 1977 for the assault, while most of his performance and behavior issues occurred prior to that date, seems to be too shaky a foundation for basing the opinion entirely on the chronological sequence. On remand, a new medical opinion must be obtained that squarely addresses whether the Veteran's performance issues and behavior during service, as described above, may have been "markers" of trauma stemming from the claimed assault, and consider in this regard whether the assault may have occurred earlier than late 1977. In making that determination, the opinion must also address the Veteran's relevant pre- and post-service history to the extent it may bear on whether there were in-service markers of trauma, and whether such may be related to his current PTSD diagnosis. Specifically, the opinion must consider the fact that prior to service the Veteran had been drinking since the age of thirteen, that he was physically and sexually abused in childhood, and that his mother and stepfather were alcoholics who "stayed at the bar" and, implicitly, neglected him and his siblings, as shown in the August 2013 and April 2019 VA examination reports, and VA psychiatric treatment records dated in November 2011 and December 2011. Following service, the Veteran's drinking progressively worsened, and he continued to drink for many years. He has reported losing several jobs due to his drinking and arrests for driving under the influence and public intoxication. He also reported that since active service he has made suicide gestures a number of different times by cutting his wrist. See August 2013 VA examination report. The examiner must consider that pre- and post-service history in assessing whether there are markers of trauma during service sufficient to conclude that the claimed in-service assault occurred, and, if so, whether the Veteran's current PTSD may be medically linked to the assault. The matters are REMANDED for the following action: 1. Add to the file any outstanding VA treatment records pertaining to the Veteran dated since May 2020. 2. Obtain a new VA medical opinion from a VA psychiatrist or psychologist, as specified below. The claims file must be made available to the examiner for review. The examiner is asked to opine whether the Veteran's performance and behavior issues during service are markers of trauma stemming from a claimed in-service sexual assault. These include receiving an Article 15 in December 1976 for failing to obey a lawful order, for being "drunk and disorderly," and behaving with disrespect for a superior by using profane language toward him; a suicide gesture by cutting his wrist while intoxicated on June 12, 1977, in response to learning that his fiancé had left him; intoxication while performing military duty on June 27, 1977; receiving an Article 15 for failure to appear at his appointed place of duty in late July 1977; and being late to work in January 1978. These incidents culminated in his early discharge from the Army due to unsuitability ("lack of self-discipline"). In making this determination, the examiner is asked to address the following: While the Veteran has reported that the assault occurred around October 1977, his memory of the date may not be accurate, since it would have occurred more than thirty years prior to that statement. Thus, the opinion should not be based solely on the assumption that the above performance and behavior issues occurred prior to the claimed assault. This does not mean that the examiner may not consider that some of the Veteran's performance issues could have preceded the claimed assault. But it should not be assumed that October 1977 is a fixed date precluding the possibility that any of them would be markers of in-service trauma, since it's possible the claimed assault occurred earlier than remembered. In assessing whether there are markers of in-service trauma, the examiner must also consider the Veteran's relevant pre- and post-service history to the extent it may bear on that issue, as determined by the examiner (and as indicated in earlier VA medical opinions). Specifically, the examiner must consider that the Veteran had a history of drinking since the age of thirteen which continued during and after service, and has reported childhood physical and sexual abuse, and parental alcoholism and neglect, as described in the August 2013 and April 2019 VA examination reports. He has also reported being the victim of a rape when he was fifteen, as shown in a December 2011 VA psychiatric treatment record. Following service, the Veteran's drinking progressively worsened, and he continued to drink for many years. He has reported losing several jobs due to his drinking and arrests for driving under the influence and public intoxication. See August 2013 VA Examination Report. 3. If the examiner determines that there is sufficient evidence that the claimed in-service assault occurred based on markers of trauma stemming from that stressor, the examiner must then render an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's PTSD is medically linked to that stressor. A complete explanation must be provided for the conclusion reached. If an opinion cannot be provided without resort to mere speculation, the examiner must specifically explain why that is the case, including whether there is missing information that would enable a non-speculative opinion. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.