Citation Nr: 21030038 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-25 409 DATE: May 17, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) and posttraumatic stress disorder (PTSD) due to military sexual trauma (MST), is remanded. REASONS FOR REMAND The appellant served on active duty from February 1985 to July 1985 with service in the Army National Guard from August 1984 to August 1993. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the appellant testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. A November 2019 Board decision denied the Veteran's claim for service connection for an acquired psychiatric disorder, to include MDD and PTSD. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (Joint Motion), and, in a September 2020 Court Order, the Court granted the Joint Motion, vacating the Board's November 2019 decision and remanding the matter for compliance with the Joint Motion. Entitlement to service connection for an acquired psychiatric disorder is remanded. The appellant contends that she has PTSD as a result of persistent sexual harassment during service. Specifically, she testified that during basic training, advanced individual training (AIT), and subsequent trainings, male soldiers made sexually suggestive comments and gestures. See Hearing Transcript at 4-6; VA Form 21-0781a (April 2016). She stated that these incidents of sexual harassment did not involve any physical assault. See VA 27-0820 (May 2016). The appellant testified that she reported instances of harassment to her supervisors and chose to discontinue service after nine years due to the harassment rather than retiring after twenty years as planned. See Hearing Transcript at 5 (September 2019). To ensure that VA has met its duty to assist, as well as, ensure compliance with the terms of the Joint Motion, remand is necessary to obtain an additional VA examination to determine whether the appellant is currently diagnosed as having an acquired psychiatric disorder related to her active service. The appellant's National Guard service treatment records (STRs) reflect no complaints of or treatment for psychological issues. The appellant denied frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort on April 1988, July 1992, and April 1993 examinations. Military personnel records (MPRs) reflect no evidence of behavior changes in service to include, but not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The first documented indication that the appellant had a psychiatric disorder is in 2016, when the appellant filed her claim for VA disability compensation. See VA Form 21-526EZ (April 2016). Along with that VA claim, the appellant submitted a PTSD stressor statement and, in August 2016, as supporting buddy statement. In the buddy statement, the appellant's friend and former fellow servicemember stated that the appellant had shared numerous accounts of sexual harassment with her and although the friend thought nothing of it at the time, these incidents had profoundly affected the Veteran's life. See Buddy/Lay Statement (August 2016). Treatment records from the Buffalo Vet Center show the Veteran presented with symptoms consistent with PTSD and depression resulting from MST. See e.g. Buffalo Vet Center (August 2016). Her counselor at the Buffalo Vet Center stated that the Veteran has been attending individual counseling since July 2016 and experiences symptoms of avoidance, isolation, difficulty trusting others and depression which are consistent with PTSD and depression following sexual trauma. Medical Treatment Record-Government Facility (Nancy Deganis, LCSWR) (May 2017). VA treatment records also reflect the Veteran was attending individual therapy due to diagnoses of PTSD and MDD. See, e.g., VA mental health outpatient note (March 2016). In January 2017, a VA psychiatrist documented diagnoses of MDD and PTSD. VA treatment records also show she has been prescribed multiple psychotropic medications. See e.g. VA pharmacy notes (November 2016, June 2017, January 2018). The examiner at the September 2016 VA PTSD examination concluded that while the reported in-service stressor of sexual harassment was adequate to support a diagnosis of PTSD, the Veteran did not meet the diagnostic criteria for PTSD under the DSM-5 criteria, and, the Veteran did not have a mental disorder that conforms with DSM-5 criteria. The examiner explained that the Veteran does not have the necessary negative alterations in cognitions and mood associated with the traumatic event. Further, the Veteran did not meet criteria for any other mental disorder due to lack of significant symptoms and lack of impairment in important areas of functioning. The Board finds the examination report is inadequate for adjudicative purposes. First, the examination report indicated that the symptom of depressed mood actively applied to the Veteran's diagnoses. However, it is noted that this finding is internally inconsistent with the examiner's conclusion that the Veteran had no psychiatric diagnoses. It is also inconsistent with other evidence of record showing diagnoses of MDD and PTSD documented in VA mental health clinic notes and Buffalo Vet Center notes. In this regard, the examination report does not reflect any attempt by the examiner to reconcile these conflicting findings. In addition, as discussed above, VA treatment records show the Veteran was prescribed psychotropic medication and diagnosed with MDD and PTSD by a VA psychiatrist, shortly after the VA examination had been conducted. It is noted that a 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. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Also, "[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Here, the standard set out for an adequate examination is not met. Given the above, the Board finds that remand is necessary in order to clarify the nature and etiology of the Veteran's psychiatric symptoms and diagnoses and obtain an adequate medical opinion that is based on a complete review of the claims file. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007) In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the appellant's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain all VA treatment records dated from January 2018 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms of depression or other symptoms of mental disorder from 1993 until 2016 (the period intervening active service and her VA claim). Make two requests for the authorized records from all identified sources unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder, to include MDD and PTSD. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on interview of the Veteran at this examination, the examiner should obtain a detailed history as to any symptoms of mental disorder prior to, during, and after her active duty service, to include treatment. The clinician should provide a medical opinion that expressly addresses the following: (a) Indicate whether the Veteran's report of persistent sexual harassment during service, to include sexually suggestive comments and gestures that did not involve any physical assault, is sufficient to support a diagnosis of PTSD under the DSM-V criteria for PTSD. (b) ONLY if the Veteran is diagnosed with PTSD under the DSM-V criteria, the examiner must fully explain how the diagnostic criteria are met and then opine whether at least as likely as not (1) had its onset in service or (2) is proximately due to or the result of the Veteran's reported in-service stressor of persistent exposure to sexual harassment by male soldiers during her active service. Explain. (c) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder at least as likely as not (1) had its onset in service, or (2) is proximately due to or the result of the Veteran's reported in-service stressor of persistent exposure to sexual harassment by male soldiers during her active service. Explain. The medical opinion should, at a minimum, reflect consideration of: (1) The Veteran's lay assertions, (2) Buffalo Vet Center records (3) The Veteran's VA treatment records reflecting counseling for PTSD and MDD since March 2016, along with prescriptions for psychotropic medications since November 2016, and a January 2017 VA treatment record showing diagnoses of PTSD and MDD provided by a staff psychiatrist. If there is any reason to reject the findings or diagnosis of PTSD or MDD in the Veteran's treatment records, this should be explained. If there is another etiology for any diagnosed mental disorder shown during this appeal period, this should be identified and explained. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). Note: An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings. 4. Ensure that the VA medical opinion obtained includes 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, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.