Citation Nr: 21031945 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-15 028 DATE: May 25, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include other specified trauma and stressor disorder, major depressive disorder and psychoactive substance dependence, is granted. REMANDED Entitlement to a total rating based on individual (TDIU) is remanded. FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran's current acquired psychiatric disability is related to an in-service trauma. CONCLUSION OF LAW The criteria for the award of service connection for an acquired psychiatric disability, to include other specified trauma and stressor disorder, major depressive disorder and psychoactive substance dependence, have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1980 to October 1980. The Veteran testified at a videoconference hearing before the undersigned in May 2017. A transcript of the hearing is of record. These claims were previously before the Board in July 2018 and August 2020, at which time they were remanded for further development. They now return for further appellate review. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). The Veteran asserts his current psychiatric disability is related to harassment and personal assault that occurred during his period of active duty service from May 1980 to October 1980. The Board last remanded this appeal so that an examination could be scheduled that assessed the nature and etiology of the Veteran's disorder. In particular, the Board requested that an examiner comment as to whether, from a medical perspective, it was at least as likely as not an in-service assault occurred, as per the provisions of 38 C.F.R. § 3.304(f)(5). The Veteran underwent a VA-contract examination in October 2020 at which time the examiner diagnosed other specified trauma and stressor disorder, major depressive disorder, other specified personality disorder and other psychoactive substance dependence and opined that other specified trauma and stressor disorder and major depressive disorder were at least as likely as not incurred in or caused by the Veteran's active service. The examiner stated that, while the Veteran's service records did not detail any report of sexual assault or harassment, the Veteran did report a previous reluctance to divulge any information relating to military sexual trauma (MST), and his service records were very limited in number. The examiner reported that, in that context, the Veteran did describe a post-trauma response in nexus with the self-reported and described MST. In December 2020, the agency of original jurisdiction (AOJ) sought an addendum opinion from the October 2020 VA examiner. The examiner noted that there was no direct evidence against the Veteran's assertion of MST aside from the absence of service records detailing the event and the Veteran's erratic self-reporting. He stated that the Veteran's reported experience of trauma in service could not be ruled out and, again, provided a positive nexus opinion. In January 2021, the AOJ again sought an addendum opinion from the October 2020 VA examiner, concluding that the examiner had still failed to render an opinion on whether the Veteran's reported in-service personal assault or harassment occurred. This time, the examiner stated that he was unable to render an opinion without speculation, but that the Veteran took a strong position that he was sexually harassed in service. The VA examiner then stated that he did not have sufficient information to assert that the MST did, in fact, occur and therefore provided a negative nexus opinion. Based on the medical opinion evidence above, the Board finds the evidence to be at least in equipoise as to whether the Veteran was assaulted during service, and whether the Veteran's current psychiatric disabilities are related to such assault. Indeed, although the October 2020 examiner did not diagnose posttraumatic stress disorder (PTSD), he did diagnose another trauma disorder, and provided an after-the-fact medical opinion favoring a finding that the Veteran's reported in-service assault occurred. See Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). It was only after being asked to validate his opinion a third time when the examiner reverted to providing a more speculative opinion. The Board finds the examiner's initial impressions and favorable medical opinions sufficient to support a finding of service-connection in this case, or at least to bring the evidence into equipoise. As noted above, although the October 2020 examiner did not formally diagnose PTSD, he did find that the Veteran met the criteria for a diagnosis of other specified trauma and stressor disorder. The examiner also believed a diagnosis of bipolar disorder was not present, as the disability did not manifest in mania. Rather, his disability manifested in major depression with, at times, psychotic features. Thus, the Board will award service connection for the Veteran's acquired psychiatric disability as diagnosed, to include other specified trauma and stressor disorder, major depressive disorder and related psychoactive substance dependence. In a February 2021 brief, the Veteran's attorney specifically requested the Board to award service connection for such disability. Insofar as the Veteran's diagnoses also include a personality disorder, service connection for such disability is prohibited under VA's laws and regulations, and is not considered part of this award. The benefit sought on appeal is granted. REASONS FOR REMAND Entitlement to a TDIU is remanded. As the Veteran has been awarded service connection for an acquired psychiatric disability in this decision, the AOJ must now implement the award by assigning an initial rating and effective date. Such decisions will impact the matter of entitlement to a TDIU. As such, a remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following action: After implementing the Board's award of service connection for an acquired psychiatric disability, to include other specified trauma and stressor disorder, major depressive disorder and psychoactive substance dependence, and after performing any additional evidentiary development deemed necessary, readjudicate the issue of entitlement to a TDIU. If the benefit sought remains denied, send the Veteran and his attorney a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.