Citation Nr: 22017972 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 18-24 707 DATE: March 27, 2022 REMANDED Entitlement to service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and adjustment disorder with anxiety, to include as due to military sexual trauma (MST), is remanded. REASONS FOR REMAND The appellant served on active duty for training (ACDUTRA) in the Army from August 1987 to January 1988 and had subsequent service with the Army Reserve and National Guard. This matter is on appeal of an April 2017 rating decision. In February 2021, a hearing was held before the undersigned. A transcript of the hearing is of record. The Board remanded the appeal for further development in May 2021. Unfortunately, the claim must again be remanded for additional development as the Board finds that there has not been substantial compliance with the May 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). The May 2021 remand noted that the March 2017 VA examiner found that the appellant's symptoms did not meet the diagnostic criteria for a PTSD diagnosis, and that her diagnosed adjustment disorder with anxiety was not etiologically linked to her service or any incident therein. The remand further noted that the March 2017 clinician did not provide supporting rationale for her opinion but did appear to base her opinion to some degree on the lack of contemporary medical treatment records. It was also noted that the opinion did not address the appellant's other psychiatric diagnoses including MDD. The remand directed that a new medical examination and opinion be obtained that should address the appellant's testimony during her February 2021 Board hearing, as well as the Board's finding that her documented August 1990 sexual assault occurred during a period of INACDUTRA, at the very least. In June 2021, after interviewing the appellant and reviewing the electronic claims file, a psychologist found that, while the appellant experienced qualifying stressors in the past, her symptoms were not found to be at a level of severity or frequency to meet the DSM-5 diagnostic criteria. Although the examiner noted the appellant's report of not having experienced any traumatic events prior to her military service, the examiner opined that the appellant's diagnosed adjustment disorder was less likely as not incurred in or the result of the appellant's documented sexual assault in service "given her premorbid history of emotional/sexual abuse in childhood." The examiner also noted that diagnosis of a personality disorder could not be ruled out. It is unclear whether the examiner is suggesting the appellant's diagnosed adjustment disorder pre-existed her service by indicating a premorbid history of emotional/sexual abuse made it less likely to be incurred in service or the result of her in-service sexual assault. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd, 749 F.3d 1370 (Fed. Cir. 2014). In this case, the June 2021 opinion raises questions about whether the appellant's psychiatric disorder preexisted her period of service when she was assaulted and whether she has a personality disorder, which would be considered a congenital defect. As noted above, the appellant served with the National Guard and Army Reserves and the appellant's service personnel records reflect that she did not have any active duty service. Additionally, the appellant has not previously established service connection for a disability incurred during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). As the appellant has not established "veteran" status, no presumptions, including the presumptions of soundness and aggravation, are applicable. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995); see also Smith v. Shinseki, 24 Vet. App. 40 (2010). Accordingly, in order to establish aggravation, the appellant has the burden by benefit of the doubt standard of showing a permanent increase in disability during the relevant period of INACDUTRA, and that such permanent increase was beyond the natural progress of that disability. See Donnellan v. Shinseki, 24 Vet. App. 167, 173-75 (2010). Furthermore, the June 2021 VA examination and subsequent June 2021 VA treatment records indicate the appellant may have a personality disorder, which is a congenital defect. Service connection for congenital or developmental defects is precluded by VA regulation. 38 C.F.R. §§ 3.303(c), 4.9. Service connection for a congenital defect can only be established if the congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. See VAOPGCPREC 82-90 (July 18, 1990). As such, clarification of the June 2021 opinion is necessary. The opinion should address service treatment records and personnel records, including February 1991 Orders reassigning her and indicating she was non-deployable and recommending medical evaluation/action. Likewise, the examiner's opinion fails to address the appellant's assertions and testimony endorsing a history of symptoms since her sexual assault during service in August 1990 and a November 2016 written statement from another service member who served with her and observed her experience after the August 1990 incident. Finally, the examiner did not provide an opinion regarding the etiology of her MDD, diagnosed during the pendency of the appeal, as noted in VA treatment records. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that service connection may be awarded for a disability if the claimant had the disability at the time the claim was filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication). Accordingly, on remand, an addendum medical opinion should be obtained. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any updated VA treatment records from June 2021 to the present. 2. After associating the above records, an addendum medical opinion must be obtained from the examiner who conducted the June 2021 VA mental health examination. If the examiner is unavailable, another clinician with sufficient experience and expertise should provide the requested opinion. Another examination or telehealth interview need only be performed if deemed necessary by the clinician providing the opinion. The electronic claims file must be made available to the examiner. Based on review of all the evidence of record, and the appellant's elicited history, the examiner should provide the following opinions: (a.) Identify all psychiatric disorders found to be present during the pendency of the appeal, under DSM-5 criteria, including PTSD, MDD, and adjustment disorder with anxiety. (b.) Provide an opinion as to whether the appellant has a personality disorder. If so, is it at least as likely as not (approximately a 50 percent or greater probability) that any of the appellant's diagnosed psychiatric disorders were superimposed on the underlying personality disorder as a result of a documented sexual assault that occurred in August 1990? (c.) If it is determined that the appellant does not have a personality disorder, then for any psychiatric disorder identified during the pendency of the appeal, including PTSD, MDD, or adjustment disorder with anxiety, is it at least as likely as not (approximately a 50 percent or greater probability) that the identified psychiatric disorder was permanently aggravated beyond the normal course and scope of the disability by the documented sexual assault that occurred in August 1990? In providing these opinions, the clinician must consider and address the appellant's February 2021 testimony; her lay statements, as well as the November 2016 statement from another service member who served with her; service personnel records noting she was nondeployable and recommending medical evaluation, as well as her endorsement of a history of psychiatric symptoms since her sexual assault in service; and subsequent VA treatment records, noting the appellant's military sexual trauma, and showing diagnoses of PTSD and MDD. (Continued on the next page) A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. J. Wells-Green 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.