Citation Nr: 23057777 Decision Date: 10/25/23 Archive Date: 10/25/23 DOCKET NO. 20-04 484A DATE: October 25, 2023 ORDER Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, her acquired psychiatric disorder is associated to personal assault trauma incurred during active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), are met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active service from January 1998 to January 2001. This matter comes before the Board of Veteran's Appeals (Board) from a January 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2022, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The instance claim of service connection has been recharacterized as service connection for an acquired psychiatric disorder to better reflect the available medical evidence. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As a threshold matter, the Board notes the January 2019 rating decision on appeal confirmed and continued the previous denial of service connection for bipolar disorder, claimed as PTSD. This characterization implies that a prior decision had been issued on the matter. Review of the documents in the claims file reveals that prior to the January 2019 rating decision on appeal, the agency of original jurisdiction (AOJ) had issued decisions adjudicating the matter of service connection for a psychiatric condition in May 2017 and December 2017. Ordinarily, rating decisions that are not timely appealed become final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.160 (d), 19.22, 19.52, 20.1103. However, a claim will remain pending when a claimant submits new and material evidence within the one-year appeal period following notification of the rating decision until VA provides a determination that is directly responsive to the new submission. 38 C.F.R. § 3.156 (b); see also Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). In this case, the claim pertaining service connection for an acquired psychiatric disorder has remained pending since the initial adjudication in May 2017. Notably, the May 2017 rating decision denied service connection for PTSD based on the absence of a current PTSD diagnosis, a verifiable stressor, and absent a link (nexus) between the claimed condition and service. See May 2017 rating decision. Within the year following notification of the May 2017 rating decision the Veteran submitted various documents, including a reconsideration request, a new claim application, a PTSD DBQ completed by a private provider noting a PTSD diagnosis, as well as medical records. See VA Form 21-0820 of June 2017, VA Form 21-526EZ of July 2017, PTSD DBQ of May 2017 associated with the claims file in July 2017; see also medical records associated with the claims file in August 2017. The evidence submitted by the Veteran, in particular the private May 2017 PTSD DBQ and other medical records, was new, because it was not of record prior to the issuance of the May 2017 rating decision, and it was material insofar as it showed a PTSD diagnosis as well as psychiatric treatment and raised a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (a); see also Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Thereafter, the December 2017 rating decision was issued confirming and continuing the prior denial. In the decision, AOJ noted among other things that a PTSD diagnosis rendered in accordance with the DSM had not been found and that more probative weight had been afforded to the VA examiner's determination as to the Veteran's diagnosis being bipolar disorder. See December 2017 rating decision. Within the one-year appeal period following the December 2017 rating decision, the Veteran submitted additional evidence. This additional evidence included new medical records and a new PTSD DBQ dated November 2018. The November 2018 PTSD DBQ completed by a private practitioner reflected a PTSD diagnosis and associated the condition to a sexual assault during service. That evidence was new as it was not previously before adjudicators at the time of the December 2017 rating decision, and it was material insofar as it showed a PTSD diagnosis rendered by another provider and raised a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (a); see also Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In view of this procedural history and pursuant to 38 C.F.R. § 3.156 (b); at the time the January 2019 rating decision was issued the claim of service connection for an acquired psychiatric disorder had remained pending since its initial adjudication. The Veteran initiated an appeal as to the January 2019 rating decision by presenting a timely Notice of Disagreement (NOD). A Statement of the Case (SOC) was issued in December 2019 and the Veteran perfected the present appeal to the Board by submitting a VA Form 9 in February 2020. Hence, as there is no final adjudication of the matter of service connection for an acquired psychiatric disorder, the claim need not be reopened, and the Board may proceed to consider the merits of the appeal. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). It is noted that while the Veteran initiated an appeal as to various issues addressed in the January 2019 rating decision, the VA Form 9 only included the issue of service connection for a psychiatric disorder. See December 2019 NOD and February 2020 VA Form 9. As such, that issue is the only matter on appeal presently before the Board. Entitlement ot service connection for an acquired psychiatric disorder. The Veteran seeks service connection for an acquired psychiatric disorder claimed as PTSD. In support of her claim, the Veteran has provided information as to the claimed in-service stressors and has submitted private medical records and opinions. Additionally, at the hearing, the Veteran provided credible testimony as to her in-service stressors and her symptomatology since then. In general, service connection may be established for disability incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, the evidence must support: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When a claim of service connection involves a psychiatric disability; a psychiatric diagnosis per the diagnostic criteria established in the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 5th ed. (DSM-5) is necessary to satisfy the "current disability" requirement for service connection purposes. 38 C.F.R. § 4.125 (a); see also Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020). Additionally, service connection for PTSD requires not only a PTSD diagnosis in accordance with the DSM-5 but also credible supporting evidence that the claimed in-service stressor occurred; as well as a link established by medical evidence, between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). The evidence necessary to establish the occurrence of a claimed stressor during service to support a diagnosis of PTSD for service connection purposes varies depending upon the circumstances of the case. Non-combat stressors must generally be corroborated by credible supporting evidence. 38 C.F.R. § 3.304 (f). When a PTSD claim is based on a stressor involving in-service personal assault, such as the present case which involves military sexual assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such corroborating evidence are noted in 38 C.F.R. § 3.304 (f)(5). Additionally, relevant caselaw has clearly indicated that in the context of a claim of service connection for PTSD based on in-service personal assault, the mere absence of service records documenting the alleged assault cannot be treated as evidence of the nonoccurrence of the assault. AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). Rather, a factual finding must be made as to whether the claimed assault has been corroborated based on the evidence of record. In making this finding, favorable medical evidence diagnosing PTSD based on a veteran's account of in-service assault must be weighed against other pertinent evidence. See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the Court erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272 (1999) (rejecting the requirement that something more than medical nexus evidence is required for "credible supporting evidence" in personal assault cases). The claims file currently before the Board includes service treatment records (STRs), post-service treatment records, a VA examination report and opinion, private assessments and opinions, as well as lay statements by the Veteran and third persons. Following review of the available evidence and consideration of the benefit of the doubt doctrine, the Board finds service connection for an acquired psychiatric disorder is warranted. In the first instance, the Board notes that although the medical evidence contains different findings as to the specific diagnosis applicable to the Veteran's psychiatric symptomatology, the available medical evidence generally concludes the Veteran does have a current psychiatric disorder in accordance with the DSM-5. See generally private medical records and examination reports. For example, a VA examiner determined the Veteran's symptoms do not meet the diagnostic criteria for PTSD under the DSM-5 but rather meet the criteria for bipolar disorder. See generally PTSD DBQ of May 2017 including addendum of November 2017. A diagnosis of bipolar disorder is also documented in various private medical records. See for example private medical records of May 2014, associated with the claims file in October 2014. Additionally, the available private medical records also document at times diagnoses of psychosis or psychotic disorder and include mention of depression and anxiety. However, these diagnoses appear ruled out by physicians in favor of the bipolar disorder diagnosis. See for example private medical records of June 2002 associated with the claims file in November 2017; private medical records of May 2016, associated with the claims file in August 2017. In October 2019, a licensed psychologist prepared a private psychological assessment report wherein she explained that in her professional opinion, the Veteran's symptomatology was consistent with a PTSD diagnosis in accordance with the DSM-5 and that such condition was associated with in-service sexual trauma. The private psychologist also explained that in her opinion a bipolar disorder diagnosis was not appropriate. See October 2019 private psychological assessment, associated with the claims file in February 2020. Absent reason to doubt the competency of the private psychologist to assess and diagnose psychological disturbances; the Board finds the assessment and its determinations adequate and of high probative value. Therefore, as the available medical evidence reflects the Veteran has been diagnosed with a psychiatric disorder in accordance with the DSM-5 (PTSD or bipolar disorder), the Board finds the evidence of record sufficient to find the first requirement for service connection (current disability) met. The remaining questions before the Board pertain the second and third requirements for service connection; the in-service incurrence or stressor and the nexus. The Veteran contends her current psychiatric disorder began in service or is otherwise related to trauma experienced during such service. In particular, the Veteran provided statements as to sexual assaults that occurred during her period of service and how she experienced certain symptoms since then. See for example VA Form 21-4138 of December 2016 and handwritten statement associated with the claims file in August 2017. At the hearing, the Veteran provided testimony in support of her claim. Generally, she denied having experienced psychiatric or psychological symptomatology prior to service and described how her mental health declined after the traumatic experiences during service. See generally hearing transcript. The Veteran's STRs do not include diagnoses, complaints, or treatment explicitly associated with a psychiatric condition or with psychiatric symptomatology during service. Additionally, the STRs and other military personnel records do not include mention or reports of an in-service military sexual trauma, and the Veteran has explained that she did not report them. See generally STRs and personnel records; see also VA Form 21-4138 of December 2016. However, the Board observes the May 2017 rating decision conceded the Veteran's STRs included potential markers that a military sexual trauma may have occurred such as weight gain, pregnancy testing, a vaginal infection, and a request for STD testing. Additionally, as argued by the Veteran's representative at the hearing and in the January 2022 memorandum in support of the appeal, the Veteran's STRs include a note of psychiatric medication in 1999 and at least one instance where the Veteran endorsed anxiety during a general screening. See STRs for April 1999, September 1999, and October 1999. The VA medical opinion of record concludes the Veteran's psychiatric disorder, diagnosed as bipolar disorder, is less likely as not related to her service, to include her reported in-service trauma. In support of the conclusion, the VA examiner noted that the Veteran's STRs did not document the claimed in-service stressor and that per the medical records from 2014 the Veteran had reported family issues during psychiatric treatment and her psychiatric hospitalization in 2016 was related to family related stressors. See medical opinion of May 2017. The Board observes that at the time the VA medical opinion was rendered, the record did not include many of the Veteran's private medical records with relevant information such as those showing psychiatric treatment in 2002- soon after her separation from service, and prior to 2014. As such, the opinion appears based on an incomplete file. Additionally, to the extent the VA opinion relies heavily on the absence of in-service treatment records showing or documenting psychiatric symptoms or the claimed in-service stressor, without addressing the potential markers in the STRs the psychiatric medication documented in the STRs in 1999 or the Veteran's statements as to the onset and continuity of her symptoms; the opinion does not contain sufficient information to allow the Board to adjudicate the claim and is therefore inadequate for adjudication purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). It is observed the examiner did find the reported stressor sufficient to meet criterion A for a PTSD diagnosis but concluded against rendering such diagnosis because he found other diagnostic criteria were not met. See PTSD DBQ and medical opinion of May 2017, including the November 2017 addendum. The claims file currently before the Board also includes private psychological evaluations and opinions finding the Veteran's symptomatology consistent with untreated PTSD and associating the PTSD to the reported traumatic experiences during service involving sexual assault. See PTSD DBQ of November 2018; see also psychological evaluation of October 2019 associated with the claims file in February 2020. The PTSD DBQ of November 2018 associates the Veteran's psychiatric disorder to the in-service sexual assault but omits a sufficiently reasoned explanation connecting the two. As such, the November 2018 PTSD DBQ, on its own, is inadequate for adjudication purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Nonetheless, the psychological evaluation of October 2019 associated with the claims file in February 2020 includes consideration of the Veteran's statements, includes an explanation of the diagnosis rendered, and briefly discusses the opinion rendered. As such, the Board finds the October 2019 psychological evaluation report and opinion adequate for adjudication purposes. The private evaluations and opinions appear based on a thorough examination of the Veteran, including consideration of her statements regarding the trauma she experienced in service and her symptomatology. The Veteran's statements as to the circumstances of her service and the traumatic experiences incurred have been found credible in view of the other evidence of record. Notably, the claims file includes a statement subscribed by the Veteran's former squad leader who confirmed that in 2004 during a counseling session, the Veteran confided in him about the traumatic experiences she had undergone during her active service in the 1990s. See VA Form 21-4138 associated with the claims file in February 2020. Additionally, while the Veteran's STRs do not document a report of sexual assault, they include mention of psychiatric medication and at least one report of anxiety and the May 2017 rating decision conceded the Veteran's STRs included potential markers of sexual trauma. Moreover, the available medical records document psychiatric symptomatology and treatment, including hospitalizations, since 2002- the year after the Veteran's separation from active service. Furthermore, the claims file includes other lay statements from third persons that support the Veteran's reports of psychiatric symptoms throughout the years since her separation from active service. See lay statement by the Veteran's sister and by the Veteran's former spouse associated with the claims file in May 2017. Absent reason to doubt the Veteran's credibility as to the in-service stressors or her symptoms and considering the totality of the evidence- including that the subscriber of the PTSD DBQ of May 2017 found the reported stressor sufficient to meet the criterion A for a PTSD diagnosis as well as the psychologist's opinion in the psychological evaluation of October 2019 that the current psychiatric disorder is consistent with and associated to the trauma experienced by the Veteran in service, the Board resolves reasonable doubt in the Veteran's favor and finds there is sufficient credible evidence to support the reported stressor occurred. Therefore, considering the totality of the evidence to include the potential markers of sexual trauma in the STRs, the post-service medical records documenting psychiatric treatment soon after separation from service, the Veteran's statements and the supporting statements by third persons, as well as the medical evidence; the Board finds the evidence is in relative balance as to whether the claimed stressor occurred and whether the current psychiatric disorder is at least as likely as not related to such stressor. As such, resolving reasonable doubt in the Veteran's favor, the Board finds the claim surpasses the second and third requirements for service connection, the in-service incurrence or stressor and the nexus. Consequently, service connection for a psychiatric disability, claimed as PTSD, due to MST, is warranted as probative medical evidence has associated the Veteran's current psychiatric disability to her reported in-service stressors and there is sufficient credible evidence to find the reported stressor occurred. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado, 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.