Citation Nr: A25035306 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240731-464358 DATE: April 16, 2025 ORDER Entitlement to service connection for an acquired psychiatric disorder (claimed as post-traumatic stress disorder [PTSD]) is granted. FINDING OF FACT The evidence is at least in approximate balance regarding whether the Veteran's acquired psychiatric condition is etiologically related to her active-duty service CONCLUSION OF LAW The criteria for establishing entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 2008 to December 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2024 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In July 2024, the Veteran disagreed with the above-noted rating decision and filed a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)). The Veteran selected the Direct Review Lane by submitting notice of disagreement under the Appeals Modernization Act (AMA). 38 C.F.R. § 19.2(d). Accordingly, based on the Veteran's selection of the Direct Review option, the Board is limited to review of the evidence in the record up and until the date of notification of the rating decision on appeal. See 38 C.F.R. §§ 3.2601, 20.301. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the above claim. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Regarding the acquired psychiatric disability claim, the Board notes that the Veteran's initial service connection claim was for PTSD; and the RO denied the claim as entitlement to service connection for PTSD with anxiety. However, in Clemons v. Shinseki, the United States Court of Appeals for Veteran's Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. 23 Vet. App. 1, 5 (2009). In light of the Court's decision in Clemons, and the medical evidence of record, the Board has re-characterized the issues on appeal to the singular issue of entitlement to service connection for an acquired psychiatric condition. As a final initial matter, the Board may not generally decide an appeal before the deadline for requesting an AMA docket switch has elapsed. 38 C.F.R. § 20.202(c)(2) allows claimants to switch AMA dockets by completing and submitting a new Notice of Disagreement (NOD) within one year from the date the AOJ mails notice of the decision on appeal, or 60 days from when the Board receives the NOD, whichever is later; unless a claimant has already submitted evidence or testimony as described in 38 C.F.R. §§ 20.302 and 20.303, or the appellant or their representative has requested a waiver of the right to request to switch dockets during this timeframe. See Williams v. McDonough, 37 Vet. App. 305 (2024). However, here, the Board notes that compliance with Williams is moot, as the grant of service connection constitutes a complete grant of the Veteran's claim on appeal and failure to comply with the holding in Williams constitutes harmless error. Service Connection-Legal Criteria Establishing 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. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 Veteran prevailing in either event, or whether the weight of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the weight of the evidence must persuasively stand against a finding that the evidence is in "approximate balance" or "nearly equal" to the evidence that supports the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Acquired Psychiatric Condition-Analysis The Veteran seeks service connection for an acquired psychiatric condition which she contends is etiologically related to her active-duty service. Specifically, the Veteran claims her psychiatric disability is related to in-service military sexual trauma (MST). The medical evidence confirms, and the VA concedes, that the Veteran has a currently diagnosed unspecified anxiety disorder condition. See June 2024 VA PTSD examination; see also July 2024 rating decision. This is a favorable finding for the Veteran, by which the Board is bound. Therefore, the central issues to be resolved are whether the Veteran's current disability originated in service or is otherwise etiologically related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board notes that a psychiatric disorder based on personal assault refers broadly to stressor events involving harm perpetrated by a person who is not considered part of an enemy force. 38 C.F.R. § 3.304(f)(5). The VA acknowledges the unique problems veterans face in documenting their claims because of the sensitive and extremely personal nature of assault. To compensate for the difficulties in reporting and producing evidence to support the occurrence of a stressor, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. In fact, the absence of in-service reports or treatments cannot be considered "negative evidence" in personal assault cases. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Unlike in other psychiatric disorder claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor personal assault claims. See Menegassi v. Shinseki, 638 F.3d 1379 (fed. Cir. 2011). Initially, the Board notes that the Veteran's STRs contain diagnoses and treatment for psychiatric disabilities. Specifically, the Board notes March 2012 and May 2012 diagnoses of, and treatment for an adjustment disorder with anxiety and depressed mood. Further, the Board notes that the Veteran's in-service MST was confirmed by the evidence of record. See e.g., February 2013 U.S. Army Criminal Investigation Command Memorandum; June 2024 Personal Trauma Incident/Marker Worksheet; and June 2024 Defense Sexual Assault Incident Database Memorandum. The Veteran submitted an October 2023 Statement in Support of Claim for PTSD wherein she noted that she was sexually assaulted in service and that she filed a report while she was in service. Further, the Veteran documented that she experiences withdrawing from friends and her spouse, panic attacks, episodes of depression, isolation, anxiety, and difficulty with relationships with men (including her husband). In November 2023 the Veteran submitted a lay statement wherein she again reported her in-service MST. The Veteran noted that ever since that incident occurred, she has suffered from extreme anxiety and mental health issues for which she has just recently began reaching out to obtain help. The Veteran reported that she has difficulty with relationships, including with her husband, and that is she very guarded about being touched or intimacy. In December 2023, the Veteran's husband submitted a lay buddy statement. The Veteran's husband noted that he has been together with the Veteran for approximately 7 years and for as long as he has known her, she has struggled with mental health. He noted that the Veteran's mental health has been getting worse and that she spends most days in her room. He noted that she does not like crowds and that she seems more withdrawn, but he noted that she is now starting to seek help for her psychiatric conditions. The Veteran submitted March 2024 Psychiatric Evaluation treatment records. In these records a Nurse Practitioner (NP) diagnosed the Veteran with major depressive disorder, generalized anxiety disorder, and PTSD. The NP noted that the Veteran reported a history of depression and anxiety which began around ten years prior with symptoms intensifying in the past two to three years. The Veteran was provided with a June 2024 VA PTSD examination. Here, the examiner diagnosed the Veteran with unspecified anxiety disorder. The examiner noted that March 2024 diagnoses of major depressive disorder, generalized anxiety disorder, and PTSD, however indicated that the Veteran did not meet the criteria for these conditions. The examiner continued that the March 2024 record contained no objective measures, but rather insufficient self-reporting was used without multiple sources of data or objective assessment. The examiner additionally opined that the Veteran's diagnosed psychiatric condition was less likely than not etiologically related to service, to include her MST stressor. The rationale provided was that the Veteran's STRs contain no complaints, treatment, or diagnosis of an anxiety disorder. The examiner noted that the Veteran began seeking treatment around 10 years after her service, however, no objective indicators were found to support the chronicity of unspecified depressive disorder from the Veteran's service, or that are related to the Veteran's MST. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has considered the medical evidence of record. As noted above, the Veteran's STRs contain diagnoses and treatment for a psychiatric condition. Further, additional information of record corroborates the Veteran's report of MST. The Board acknowledges that the June 2024 VA examiner provided a negative etiological opinion. However, the VA examiner's opinion was based on a lack of treatment records reflecting a chronic diagnosis in service. However, the examiner did not address the Veteran's diagnosed adjustment disorder with anxiety and depression while she was in service. Additionally, the Board notes, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997). As such, the VA medical opinion that discounted the Veteran's reports of anxiety and depression during and since service is of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The Board has considered the Veteran's, and her husbands, lay statements in support of her claim. She is competent to report symptoms, such as feeling anxious and depressed because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, the Veteran's spouse is competent to report what he directly observed. Id. However, they are not competent to offer an opinion as to the etiology of the Veteran's current disorder due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In light of the foregoing, because of the credible evidence of psychiatric impairment during and since service, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric condition is warranted because the onset of this condition was coincident with the Veteran's active-duty service. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but, basically, it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). (Continued on the next page) ? As such, the Veteran's claim of service connection for an acquired psychiatric disability is granted T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gresham, Trevor 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.