Citation Nr: 22010549 Decision Date: 02/24/22 Archive Date: 02/23/22 DOCKET NO. 18-20 679 DATE: February 24, 2022 REMANDED 1. Service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Service connection for a left 3rd finger condition. REASONS FOR REMAND The Veteran served on active duty from May 1997 to October 1997, from March 2003 to October 2003, from September 2006 to February 2007, from September 2008 to February 2008, from January 2009 to July 2009, from September 2010 to September 2011, and from November 2016 to September 2017. The case is on appeal from a February 2017 rating decision. In February 2018, the RO issued two statements of the case (SOCs) addressing a total of 11 issues. In an April 2018 Form 9, the Veteran limited her appeal to the two issues addressed hereinservice connection for PTSD and left 3rd finger condition. The Veteran testified at a September 2021 Board hearing. Service connection for a psychiatric disorder, to include PTSD. The Veteran contends that her PTSD disorder was incurred during service. In a December 2016 correspondence, the Veteran reported that from February 2009 until June 2009 while in Aldhafra Air Force base in the United Arab Emirates (UAE), a supervisor "sexually and verbally" harassed her by attempting to or actually kissed her lips, neck, and face. Further, she reported that her "supervisor made it a point to lock us in my office Mon-Sat where he would come up behind me whether I was standing or sitting and massage my shoulders." Moreover, the Veteran reported that her supervisor would touch her in between her legs, thighs, and breast "on numerous occasions, at least once a day." She also reported that her supervisor would call her derogatory names. The Veteran further reported that she informed her another supervisory service member about the harassment and requested to be "moved." She reported that a request to be moved was made, denied, but then was approved. She also reported that while she was moved, she still had the same supervisor who would continue the harassment. The Veteran reported that in September 2012, she changed to another squadron but returned in 2014. She also reported that she refused to deploy on later deployments. The Veteran reported "battling" depression since the "assault." Further, she reported experiencing loss of appetite, anxiety, frustration, overeating, and panic attacks from 2009 to 2013. Moreover, she reported attempting suicide in 2009 and in 2016. In a January 2018 notice of disagreement (NOD), the Veteran contended that the VA examiner in 2017 did not consider her records properly including reports of symptoms and diagnosis of PTSD due to MST. The Veteran reported experiencing worsening PTSD symptoms and withdrawal from others, specifically men. At the September 2021 Board hearing, the Veteran reported that she started to experience PTSD symptoms while in service in the UAE while working in the dining facility. The Veteran submitted a letter from another fellow service member who reported that she deployed with the Veteran in January 2009 to Al Dharfa Air Base. She also reported that the Veteran was her supervisor in the Main Dining Facility. Further, the service member reported that in "April 2009 or halfway through the tour" the Veteran was "moved from her position as the Main Dining Facility Manager to the Flight Line Supervisor." She explained that she believed the reason for such move was "sexual harassment against" the Veteran. The fellow servicemember reported that she herself was moved to another kitchen and "work with the Army" for the same reason. Moreover, she reported that a supervisor, "MSgt Moya" was not "moved out of his position or in trouble." The service member reported that she felt as if she "was in trouble or wrong for even speaking up." The Veteran also submitted another letter from another fellow service member who reported that she deployed with the Veteran from January 2009 to June 2009. She reported that for reasons unknown to her, the Veteran was moved to another position within he dining facility. The servicemember explained that such move was unusual "especially in a deployed location." The Veteran's service personnel records (SPRs) show that the Veteran was a diet therapy journeyman and services craftsman who deployed to UAE from January 2009 to June 2009. Her service treatment records (STRs) do not show reports of or treatment for psychiatric disorders to include PTSD or MST. In a May 2009 post-deployment assessment, the Veteran reported that she fell during deployment and that her health was worse than in pre-deployment. She denied experiencing anxiety, depression, fear, nightmares, and fear. Also, the Veteran denied experiencing an assault. The Veteran's post-service VA treatment records show that she denied depression until December 2013 when she reported "19 days of bad mental health day over the past 30 days" and was recommended for further evaluation. The medical records do not show whether the evaluation took place. She underwent a PTSD Screening in April 2015 which was negative. In a September 2015 Persian Gulf VA examination, the Veteran denied depression and anxiety. A January 2016 suicide prevention note shows the Veteran reported that "she was a victim of MST." The note furthers shows her reporting that "she recently had a training at work that outlined workplace conduct, and this triggered memories for her. As a result, Vet reported that she has been sinking into depression." The Veteran reported that this is affects her work attendance, her marriage, and ability to disclose the MST to her husband and others. Further, the note shows that "she reported that she has been apprehensive to get counseling through the VA for it for fear the National Guard will access her records and get this info." A February 2016 Initial Assessment show that the Veteran was treated for anxiety, depression, and stress symptoms. She reported that she felt overwhelmed and stressed out since returning from deployment in 2009 due to MST. Also, she reported that the MST incident was affecting her current marital relation. In a May 2016 call, the Veteran reported that her anxiety, which began in 2009, has worsened and requested to see medical provider to obtain medication. A June 2016 mental health triage note shows that the Veteran reported experiencing panic attacks several times a week and more than once per day. She described the attacks "like chest hurts, sweating, nauseous, dizzy, overwhelmed" and "like she needs to crawl out her skin." She also reported experiencing avoidance, restlessness, hypervigilance, insecure, and paranoia. Moreover, the Veteran reported that she tried to manage symptoms largely on her own, "but recently after moving jobs to a more noisy, open environment with men," she realized her condition was not controllable and sought counseling. The Veteran also reported that she sought out counseling for MST with a private therapist in 2009 and in 2013 with a military affiliated provider. The attending psychologist diagnosed the Veteran with PTSD and panic disorder. In January 2017, the Veteran was afforded a VA examination for PTSD. The Veteran reported that she finds herself thinking about her deployment but prevents herself from ruminating over the experiences. She also reported that she avoided crowded places, unknown people, and is watchful of men wo remind her of her supervisor. The Veteran further complained about her work conditions to include working in open areas and with men. She also reported being easily angered by co-workers and family but occurs on a rare instance. The psychologist reviewed the claims file. He diagnosed the Veteran with PTSD and Obsessive-Compulsive Disorder (OCD) secondary to PTSD. He found occupational and social impairment with reduced reliability and productivity. The psychologist disclosed that it was beyond the scope of his practice to "determine whether a specific event occurred during a Veteran's active military service." He opined, however, that it is at least as likely as not that the diagnosis of PTSD was incurred in, or caused by, her reported experiences in deployment. The psychologist opined that "based on the Veteran's self-reported statements of her experiences in her military service, the Veteran meets the criteria for the diagnosis of PTSD." The psychologist described that the Veteran reported experiencing stressful events in her military service, including being repeatedly harassed and threatened. He concluded that such report met the threshold of a Criterion A PTSD stressor. In March 2018, the Veteran was afforded another VA examination for PTSD due to MST. She reported that her marriage from 2000 continues and has been "okay" but becomes "mean and violent" since her deployment. The psychologist reviewed the claims file. He diagnosed the Veteran with PTSD and OCD. He found occupational and social impairment with reduced reliability and productivity. He opined, however, that it is at least as likely as not that the diagnosis of PTSD is related MST. The psychologist reported that the Veteran "relayed a sexual traumatic event, which was allegedly perpetrated by her supervisor. And, stated she sought treatment for such. She also relayed the marker of requesting a change of duty assignment." In June 2018, the VA received two letters dated March 2017 and April 2017. In the March 2017 letter, a VA psychiatrist that treated the Veteran reported that the Veteran reported the assault and harassment incident, worsening PTSD symptoms, and 2 "overdose attempts." The psychiatrist noted that the Veteran is very consistent with her reports and witnessed the Veteran's panic attacks. In the April 2017 letter, a social worker reported that she saw the Veteran several times in 2014 for panic attacks the Veteran was experiencing in the workplace and stressful working conditions. An August 2017 psychiatric note shows that the Veteran reported worsening symptoms of PTSD due to MST. In August 2018, the veteran was afforded another VA examination. The psychologist reviewed the claims file. He noted the Veteran's with PTSD and OCD diagnosis as well as the occupational and social impairment with reduced reliability and productivity. Based on his review of a previous VA examination in January 2017, he opined that it is at least as likely as not that the diagnosis of PTSD is related to her "reported experiences in deployment." The psychologist reported that the Veteran "relayed a sexual traumatic event, which was allegedly perpetrated by her supervisor. And, stated she sought treatment for such. She also relayed the marker of requesting a change of duty assignment." The Board notes that a negative opinion was also rendered for service connection due to service exposure event. However, such claim is not part of the Veteran's claim at this time. Also, the Board notes that the Veteran referenced another disorder, Female Sexual Arousal Disorder (FSAD) during the September 2021 Board hearing which she related to PTSD and MST. The records show that the claim for service connection for FSAD was filed in April 2018. The Veteran did not indicate if she was claiming another theory of entitlement, i.e., secondary service connection. The record shows that the Veteran was granted service connection for FSAD as of October 1, 2017 based on a positive FSAD diagnosis from a January 2017 VA examination related to tubal litigation. The examination did not mention PTSD or MST having relevance to the diagnosis. Further, the May 2018 Rating Decision granted special monthly compensation for loss of a creative organ upon the Veteran receiving a grant of service connection for FSAD as of October 1, 2017. The Board finds that remand is warranted as to the duty to assist. While the Veteran has a current diagnosis of PTSD, VA has not yet attempted to corroborate the Veteran's in-service stressor involving sexual harassment during the Veteran's January 2009 to June 2009 deployment to UAE. In this regard, correspondence between the VA and the Veteran does not indicate whether information about the Veteran's stressor has been requested from the Veteran. Also, the SPRs contain deployment information that can lead to corroborating information as to the Veteran's stressor. While the September 2021 buddy statements report witnessing the Veteran change in position and responsibilities, attested deploying with the Veteran, and identified a name of supervisor who could have committed the harassment, the Board finds that more information is necessary to corroborate the stressor. The statements do not indicate the awareness of the reason for the move of the Veteran position move or speculate as to the reason for the move. A remand is warranted to allow VA to attempt to corroborate the Veteran's reported stressor and send the Veteran notification as required under 38 C.F.R. § 3.304(f)(5). Also, in a June 2016 mental health triage note, the Veteran identified relevant outstanding private treatment records when she reported that she was treated by a private care provider for mental health in 2009 the Veteran identified. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A ; 38 C.F.R. § 3.159(c). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159 (c)(1). A remand is also warranted to allow VA to obtain authorization and request these records. Thereafter, she should be afforded a VA examination to determine if she has PTSD or another psychiatric disorder that is attributed to her military service. 2. Service connection for left 3rd finger condition. The Veteran contends that her left, third finger metacarpal strain was incurred in service. In the January 2018 NOD, the Veteran reported that in July 2016 she injured her left hand, third finger in service while opening a drawer, causing "7/10 pain level with numbness, tingling, and throbbing." She also reported not having or incurring any left hand third finger injury before. Further, the Veteran reported that she has received treatment and is still being treated for the left hand injury. The Veteran contends that the January 2017 VA examination was inadequate as it did not consider the entire medical record. In January 2018, the Veteran submitted a 2017 medical study on pain syndrome in the treatment of carpal tunnel syndrome (CTS) and Dupuytren Contracture. At the September 2021 Board hearing, the Veteran reported serving on active duty from July 18, 2016 to September 30, 2016 when she incurred an injury to the left hand third finger. She reported that while she was trying to open a drawer in her cubicle to look for supplies, a finger "just popped" and then swelled. Further, she reported that she informed her supervisor and sought medical attention. Moreover, the Veteran reported that she still experiences pain. Also, she reported that the injury makes it difficult to type during her administrative duties and difficult to lift or carry objects or drive. The Veteran's agent reported that a line of duty determination was not completed for the Veteran because she was on active duty orders, thus eliminating the need for a line of duty determination. Also, in September 2021, the Veteran submitted a letter from a supervisor reporting that in the morning of July 18, 2016 the Veteran incurred an injury to the left hand while the Veteran was in her cubicle attempting to open a drawer. She reported that the Veteran reported the injury to her. Also, she reported that the Veteran's "fingers became hard to move, painful, overlapping, with the fingers and hand becoming more swollen and discolored as the day progressed." Moreover, the supervisor reported that the Veteran was performing "one of two active duty 2016 tours" and that the Veteran was on active duty orders July 18, 2016 through September 30, 2016. The Veteran's SPRs shows that she was a National Guard Member in the State of Oklahoma. Her SPRs also shows a DD 214 stating that she entered active duty November 2016 and was released September 2017. A VA/Department of Defense Identity Repository (VADIR) report service record indicates service the Veteran was on active duty from July 18, 2016 to September 2016. The Veteran's STRs show that on July 22, 2016 she was seen for "LOD L. HAND" at the Tinker AFB medical facility and reported that "she was trying to open a drawer that was stuck on her finger popped and was sitting on top of L ring finger states her whole hand swelled up" and "was green in color." An August 2016 medical summary shows that the veteran was seen for an MRI for the left hand. The examining physician found no significant hematoma and no evidence of malignancy with the Veteran's biopsy after initially noting "tumor like" area in the Veteran's "left, 3rd metacarpal." The physician found good neurologic and vascular distal function, inflammation, a healing wound, and decreased range of motion of "both MP and IP joints." Subsequently, the Veteran was referred and began physical therapy with a private provider for the left hand injury. A September 2016 medical note shows that the Veteran called the military medical facility to request a line of duty determination and to report that she was placed on "MPA Title 10 @ TAFB on 21 Jul 16. On the same day, she hurt her L hand & was subsequently seen @ 72 MDG for LOD injury on 22 July 16." Further the Veteran reported that her "MPA tour end on 30 Sept 16 & TAFB now is trying to get her approved for Med Con days to continue p her MPA tour ends." The record shows that an attempt was made to start a line of duty determination. The Veteran's post-service VA treatment records show that she was treated by for left hand pain and swelling after an injury. A July 2016 emergency record shows that the Veteran was diagnosed with "left 3rd finger strain." A later July 2016 nursing note shows that the Veteran was treated for the left hand injury and noted "visible swelling." An August 2016 medical note shows that the Veteran reported that an MRI was performed "twice" by the military medical treatment facility in Tinker AFB. She also reported having been informed of a tumor in the hand. In January 2017, the Veteran was afforded a VA examination for the left hand injury claim. The Veteran reported the July 2016 injury, the subsequent pain and swelling, and that she was on active duty orders. She also reported on going pain. Further the Veteran reported increasing pain when performing heavy lifting or prolonged gripping. The examiner reviewed the claims file. She noted a diagnosis for "third metacarpal strain s/p 2016 injury with scar." The examiner opined that it is as likely as not that the Veteran's left hand third metacarpal strain 2016 injury with scar incurred in or was caused by the left hand surgical procedure during service. The examiner noted that there's no evidence of left wrist surgical procedure in the STRs. However, the examiner concluded that there's "evidence of a left hand injury with scar which occurred in 2016 due to an in-service LOD injury." The Board finds that a remand is warranted with regard to the Veteran's left hand finger claim. The Veteran indicated that she incurred an injury to her left hand third finger in service. While the RO obtained VADIRS to verify the Veteran's service, the Board finds that additional information is necessary as they may contain information regarding the Veteran's dates of active duty service. The Veteran's claims file does not appear to contain her complete SPRs for her period of service. The current evidence, to include the Veteran's the July 2016, August 2016, and September 2016 medical record, September 2021 supervisor letter, and VADIRS indicate that the Veteran may be have been placed on active duty orders for which personnel documentation to include a DD214 or miltiary orders have not been associated with the claims file. The RO should attempt to verify the Veteran's period of service. A remand is warranted to obtain them. Thereafter, she should be afforded a VA examination to determine if she has a left 3rd finger condition that is attributed to service. These claims are REMANDED for the following action: 1. Notify that Veteran that evidence from sources other than her STRs may be used to corroborate her allegations of in-service personal assault, MST, and invite her to submit such evidence. Any response(s) received should be associated with the record. 2. To the extent feasible, undertake efforts to verify the Veteran's claimed in-stressors, including being information with regards to sexually harass or assault by her supervisor during a deployment to Al Dharfa Air Base in the UAE from January 2009 to June 2009. If verification is not feasible, that fact should be noted on the record. 3. Afford the Veteran an opportunity to submit or identify any outstanding relevant private treatment records, to include psychiatric treatment records. Obtain any identified records with the use of the Veteran's authorization as necessary. If such records are unavailable, the file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 4. Then, forward the claims file to an appropriate medical professional to determine the nature and etiology of any diagnosed psychiatric disorder. The claims file must be reviewed by the examiner. The examiner should: (a.) Identify all diagnosed psychiatric disorders, including whether the Veteran met the criteria for a diagnosis of PTSD. (b.) State whether it is at least as likely as not that any diagnosed psychiatric disorder had its onset during, or is otherwise related to, service to include incidents of sexually harassment and/or assault by a supervisor during a deployment to Al Dharfa Air Base in the United Arab Emirates from January 2009 to June 2009. (c.) If PTSD is diagnosed, the underlying stressor should be identified and discussed. The lay evidence of record should be reviewed and addressed. A rationale should be provided for all opinions expressed. 5. Also, contact the appropriate service department and/or record storage facility, to include the National Personnel Records Center, the Air Force Reserve, and the Oklahoma Air National Guard, and if otherwise unsuccessful, the Defense Finance and Accounting Service, and request that they verify each and every period of the claimant's service. Attempt to clarify the Veteran's active duty service dates by considering the report for information on the Personnel Information the VIS Information Report, the Veteran's supervisor letter, the 2016 STRs, and her testimony provided in the September 2016 about her military service from July 18, 2016 to September 30, 2016, and if needed, make appropriate requests for any further records. If any records cannot be located, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant and his representative of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant and his representative must then be given an opportunity to respond. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nevarez-Myrick, Nancy 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.