Citation Nr: A25041268 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240529-444069 DATE: May 6, 2025 REMANDED Entitlement to service connection for an acquired psychiatric condition, to include anxiety and depression, due to military sexual trauma, is remanded. REASONS FOR REMAND The appellant served on active duty for training in the United States Army Reserve from February 1984 to July 1984 with additional periods of Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2024 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). On May 29, 2024, the appellant filed a VA Form 10182, notice of disagreement and selected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Entitlement to service connection for an acquired psychiatric condition, to include anxiety and depression, due to military sexual trauma, is remanded. The appellant contends that she suffers from a psychiatric disorder related to incidents of sexual assault during her active-duty service. Specifically, the appellant alleges multiple acts of sexual assault by her drill sergeant during basic training. The appellant initially brought the claim for service connection for anxiety due to military sexual trauma in May 2023. The Board notes that the scope of a disability claim includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Therefore, the Board will consider the issue on appeal to encompass service connection for an acquired psychiatric disorder, to include anxiety and depression. Concerning a current diagnosis, private treatment records indicate an assessment of depression in June 2003. The medical note indicates treatment of depression with prescribed Zoloft. See Medical Treatment Record-Non-Government Facility. The appellant was provided a VA examination in March 2024. The examiner determined that the appellant did not have a mental disorder that conforms with DSM-5 criteria. However, the examiner failed to address the depression assessment already of record when making this determination. As such, the Board deems this opinion inadequate as it is based on an incomplete factual premise. Concerning an in-service event or injury, according to VA policy, because personal assault is an extremely personal and sensitive issue, many incidents are not officially reported, which creates a proof problem with respect to the occurrence of the claimed stressor. In such situations, it is not unusual for there to be an absence of service records documenting the events the appellant has alleged surrounding the assault. The victims of such trauma may not necessarily report the full circumstances of the trauma for many years after the trauma. Therefore, the Federal Circuit has held that VA cannot use the absence of service record documentation or a veteran's lack of report of in-service sexual assault to military authorities as evidence to conclude that a sexual assault did not occur. AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). Evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. 38 C.F.R. § 3.304 (f)(5); see also Patton v. West, 12 Vet. App. 272, 277 (1999). Examples of such alternative evidence include but are not limited to the following: 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. 38 C.F.R. § 3.304 (f)(5). Under VA policy, personal diaries and journals can also be relevant. Here, the appellant's service treatment records reveal complaints of vaginal discharge, burning, and spotting during urination, and a diagnosis of bladder infection, with urinary tract infection ruled out. See May 1984 Service Treatment Records. Lastly, the appellant selected "yes" when asked whether she has ever had or currently has Syphilis, Gonorrhea, etc., upon entrance, in October 1983. When VA undertakes the effort to provide an examination when developing a claim, the exam must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, considering private treatment records dated subsequent to the March 2024 VA examination indicate a diagnosis of depression, and the examiner failed to address said diagnosis, the examination report is inadequate. Failing to obtain an adequate examination and opinion and relying on such is a pre-decisional duty to assist error. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). This pre-decisional duty to assist error should be remedied on remand by providing the appellant a new VA examination that includes an adequate opinion and rationale. The matters are REMANDED for the following action: 1. Schedule the appellant for a psychiatric examination with an appropriately qualified clinician, to determine the nature and etiology of any diagnosed psychiatric disorder. The examination may be conducted via telehealth. The claims file should be reviewed in conjunction with the examination. A copy of this remand should be made available to the examiner. The following medical opinions are requested: (a) Determine whether the appellant now has, or has ever had, a psychiatric diagnosis at any point during the appeal period, to include the noted diagnosis of depression. If the examiner disputes the current depression diagnosis of record, he/she must explain why such diagnosis is unreliable. (b) The examiner must determine whether the evidence of record, including the appellant's lay statements, and the appellant's service records (to include the May 1984 Service Treatment Records), corroborate the claim that a personal assault occurred in service. See 38 C.F.R. § 3.304 (f)(5). (c) Opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the acquired psychiatric disability had its onset during or is otherwise etiologically related to active-duty service, to include any corroborated in-service personal assault. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of records. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.