Citation Nr: 21032851 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 19-09 029A DATE: May 28, 2021 ORDER Entitlement to service connection for a post-traumatic stress disorder (PTSD) as due to military sexual trauma or hostile military or terrorist activity is denied. REMANDED Entitlement to service connection for an anxiety disorder as due to military sexual trauma or hostile military or terrorist activity is remanded. FINDINGS OF FACT 1. The preponderance of the evidence does not show a current clinical diagnosis of PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a PTSD have not been met. 38 U.S.C. §§ 1112, 1113,1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1962 to February 1965. He also served in the United States Navy from September 1965 to September 1967 and was in receipt of a Vietnam Service Medal with one bronze star. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). In general, establishing service connection for PTSD requires specific findings. These are: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304 (f). The PTSD regulations include provisions pertinent to Veterans with combat-related stressors, stressors founded on fear of hostile military or terrorist activity, stressors based on being a prisoner of war, and stressors based on personal assault. The first element of service connection for an acquired psychiatric disorder, including PTSD, is medical evidence establishing a diagnosis under 38 C.F.R. § 4.125 (a). Diagnoses of PTSD and other psychiatric disorders by health care professionals are presumed to be in accordance with applicable governing medical criteria. See Cohen v. Brown, 10 Vet. App. 128, 139-40 (1997). Since the Veteran's stressor pertains to fear of hostile military or terrorist activity, a VA psychiatrist or psychologist or one contracted with VA must furnish the PTSD diagnosis. 38 C.F.R. § 3.304 (f)(3). If a posttraumatic stress disorder claim is based on in-service personal assault or military sexual assault, evidence from sources other than the service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a PTSD as due to military sexual trauma and hostile military or terrorist activity is denied. The Veteran contends that his PTSD is related to a sexual assault incident and harassment during his period of service in the Army. Additionally, the Veteran reported firing ammunition and receiving oncoming fire during his period of service on the U.S.S. Mansfield in Vietnam. Upon review of the evidence, the Board concludes that the Veteran does not have a current diagnosis of PTSD and has not had one at any time during the pendency of the claim or recent to the filing of the claim. The Board acknowledge that an August 2019 VA treatment records reflects one notation that he is receiving medication for "delayed PTSD related to his military service." However, a thorough review of his VA treatment record does not show that he has received a PTSD diagnosis under the DSM-V. The Veteran was further provided with a VA examination in September 2017 and the VA examiner noted the Veteran's reported stressor of being sexually assaulted by a non-commissioned officer (NCO) and firing and receiving incoming fire off the coast of Vietnam in the Navy. However, the VA examiner stated that his reported symptoms did not meet the DSM-V criteria for a diagnosis of PTSD. Instead, the VA examiner stated his symptoms were sufficient to establish a diagnosis of an unspecified anxiety disorder. There is no further evidence indicating that he has been diagnosed with PTSD by a mental health professional throughout the pendency of the claim. While the Veteran may believe that he has a current diagnosis of PTSD he is not competent to provide a diagnosis in this case. The issue of a current diagnosis of PTSD is medically complex and requires that a diagnosis be made by mental health profession with the requisite specialized training, education, or experience. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence of record. Without persuasive evidence of a current diagnosis of PTSD that comports with the DSM-V, there is no basis upon which to award service connection. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for PTSD, it is not applicable. Thus, the Veteran's claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for an anxiety disorder as due to military sexual trauma and hostile military or terrorist activity is remanded. The Veteran further seeks service connection for an anxiety disorder. Specifically, he states that he was sexually assaulted and harassed by a non-commission officer and a cook during his period of service in the Army. Additionally, the Veteran reported firing ammunition and receiving oncoming fire during his period of service on the U.S.S. Mansfield in Vietnam. Upon review of the evidence, the Board finds that a remand is necessary before the Board can adjudicate the merits of the claim. The Veteran was afforded a VA examination in September 2017 for his anxiety disorder and the VA examiner opined that his unspecified anxiety disorder is less likely than not caused by or a result of military sexual trauma. The VA examiner states that his current symptoms are related to various life stressors, namely home life include caring for his son who has been in prison for numerous charges and caring for his elderly mother-in-law who has dementia. The VA examiner further states he has anxiety due to recent and rapid decline in health within the past few years and a possibility of dementia. The VA examiner further reference an October 2016 VA treatment record which indicates that the Veteran has only been under psychiatric care but has been medicated by his primary care physician. The VA examiner further supports her opinion based on the Veteran's report that he did not experience anxiety until three to four years ago when he began receiving multiple diagnosis at the VA. Based upon the Board's review of the VA medical opinion, the Board finds that the VA examiner's opinion is inadequate. Although the VA examiner noted the Veteran's reported stressors, the VA medical opinion was based solely on the absence of contemporaneous medical evidence. As stated above, claims concerning military sexual trauma does not always require a finding of contemporaneous treatment as it is unlikely that a Veteran reported the incident. Additionally, while the VA examiner noted that the Veteran reported his anxiety disorder did not occur until he began receiving multiple medical diagnosis at the VA, the VA examiner did not explain why his anxiety disorder is not related to him being sexually assaulted and harassed in the Army or from firing rounds and being fired at during his period of service in the Navy. As such, the Board finds that a remand is warranted to obtain a VA examination to properly address the nature and etiology of his anxiety disorder. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records related to the Veteran's anxiety disorder and associate them with the claims file. 2. Schedule the Veteran for a new VA examination. The claims file, including a copy of this remand, should be made available to the examiner, who should review it in conjunction with the prior examination and should note that review in the report. The examiner is requested to provide an opinion as to whether the Veteran's anxiety disorder is at least as likely as not (50 percent probability or more) related to his military service, to include being sexually assaulted by an NCO and cook in the Army and from firing ammunition and receiving oncoming fire while on the U.S.S. Mansfield in Vietnam. A complete and detailed rationale should be provided for every opinion requested by the examiner. (Continued on the next page) 3. After, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.