Citation Nr: 23000916 Decision Date: 01/06/23 Archive Date: 01/06/23 DOCKET NO. 18-24 180 DATE: January 6, 2023 ORDER Service connection for posttraumatic stress disorder (PTSD) (to include unspecified depressive/anxiety disorders) is granted. Secondary service connection for obstructive sleep apnea (OSA) on the basis of aggravation is granted. REMANDED Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDINGS OF FACT 1. The evidence indicates that the Veteran's PTSD diagnosis is directly related to an in-service military sexual trauma (MST). 2. The evidence demonstrates that the Veteran's OSA has been aggravated by service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for secondary service connection for OSA on the basis of aggravation have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1978 to September 1980. These matters are on appeal from October 2015 and April 2017 rating decisions. These matters on appeal were remanded by the Board of Veterans' Appeals (Board) in a July 2019 decision. In addition, claims for service connection for bilateral feet disabilities, a heart condition, hearing loss, and tinnitus were also remanded but have since been withdrawn. See August 2019 VA 21-4138 Statement in Support of Claim. 1. Service connection for PTSD (to include an unspecified depressive/anxiety disorders) The Veteran contends that she is diagnosed with PTSD that is due to a sexual assault in service. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). Under 38 C.F.R. § 4.125 (a), the diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), American Psychiatric Association (2013). For PTSD, service connection requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), a link, established by medical evidence between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). If a PTSD claim is based on personal assault in service, evidence from sources other than the veteran's records may corroborate the veteran's account of the stressor incident. Examples of such evidence include but are not limited to: 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). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. Further, for PTSD claims based on personal assault, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F. 3d 1379, 1382 (Fed. Cir. 2011). Thus, if the claimed stressor is based on a non-combat related personal assault, "a medical opinion based on a personal examination of a veteran can be used to establish the occurrence of a stressor." Id.; see Patton v. West, 12 Vet. App. 272, 279-280 (1999) (holding that in PTSD cases based on personal assault, a VA examiner's finding that the claimant's PTSD is etiologically linked to the alleged in-service stressor can serve as verification that the stressor occurred). Of record is a September 2015 DBQ (PTSD) completed by a Dr. C-G.P., Psy.D. The Veteran underwent a psychological evaluation and was diagnosed with PTSD that conforms to the DSM-5 criteria with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. It was noted that she had no mental health treatment prior to service and began experiencing symptoms of anxiety, depression, and PTSD following the claimed in-service MST. The clinician opined after the evaluation and a review of the medical records and claims file that it is at least as likely as not that the Veteran was sexually assaulted while on active duty and this incident resulted in her current symptoms of PTSD. She noted the Veteran's report of contracting gonorrhea as a result of assault and how as an Army Medic they often took care of each other without recording treatment in medical records. The Veteran stated that she received a shot for her gonorrhea from a coworker because she was too embarrassed to officially see a physician for treatment. The clinician cited to a May 2015 statement submitted by a Command Sergeant Major (ret) C.M. who served with the Veteran in Korea. He stated that he witnessed sexual harassment perpetrated by the men who allegedly raped her and he noticed significant changes in her mood (self-medicated with alcohol, withdrew and talked of suicide) and work performance following the assault. He reported that she began abusing alcohol which had to been an issue prior to the sexual assault. He also recounted that the Veteran told him she was pregnant when the sexual assault occurred, a fact that is corroborated by a certificate of pregnancy noted in her military personnel record. Letters submitted from the Veteran's friends in 2015, 2017, and 2021 indicate how the Veteran returned home from service a different person. They observed symptoms of the Veteran become socially isolated, depressed, paper/pictures/clothes stacked everywhere in her home, being withdrawn in large groups, especially with male attendance, most days she doesn't get dressed/comb her hair, stays in bed most of the time, cries frequently, outbursts of anger, screaming/yelling at men, and severe chronic hatred towards men. Upon review of the evidence of record, service connection for PTSD due to MST is warranted. Initially, the Veteran has a current diagnosis of PTSD that conforms to DSM-5 criteria. The September 2015 psychologist confirmed that the Veteran has a diagnosis and provided a medical opinion corroborating the occurrence of a stressor. In addition, there a statements from multiple individuals that corroborate a deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause, and unexplained economic or social behavior changes. While the service treatment records (STRs) do not show any report of a sexual assault, the sole fact that a veteran never reported an in-service sexual assault may not be considered as relevant evidence tending to prove that a sexual assault did not occur. AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Based on the current diagnosis of PTSD, supporting evidence of a medical opinion establishing the in-service stressor, and the positive nexus opinion of the September 2015 psychologist, the Board resolves all doubt in the Veteran's favor and finds that she has PTSD that is due to an in-service MST. Accordingly, service connection for PTSD is warranted. As a final note, the Veteran's claim for service connection was for both PTSD and depression. A September 2018 DBQ and psychological evaluation completed by Dr. H-H.G., PhD. also documents diagnoses for unspecified depressive and anxiety disorders and that the symptoms for these diagnoses overlap such that they cannot be differentiated. This clinician also opined that that the Veteran's diagnoses for unspecified depressive and anxiety disorders are directly related to the MST during service. The Veteran's service connection claim for depression therefore is also granted. Note that the rating criteria for the Veteran's service-connected PTSD and depressive/anxiety disorders are identical under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Accordingly, to the extent the Veteran's psychiatric symptoms overlap, she will not be entitled to separate ratings. 38 C.F.R. § 4.14; see also Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). 2. Service connection OSA Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran has a current diagnosis of obstructive sleep apnea. See March 2013 treatment records from Dr. L.C. of Seton Medical Center. On March 2019 Sleep apnea DBQ and an accompanying report, Dr. H.S. opined that the Veteran's diagnosed depression and anxiety as well as her prescribed medications for mental health symptoms aided in the development of and aggravation of her OSA. The clinician cited to a recent study that found that subjects with depression have a higher prevalence of OSA diagnoses and that sedative drugs prescribed to treat depression suppress the central nervous system which is typically accompanied by a reduction of CO2 responsiveness in the medullary respiratory center. The clinician explained that after speaking to the Veteran she is unable to use her prescribed CPAP machine due to symptoms of anxiety and feelings of claustrophobia stemming from service-connected PTSD. This inability greatly aggravates the effects of her OSA causing daily fatigue and exhaustion. The Board affords this qualified clinician's findings and opinion substantial probative weight as they demonstrated a familiarity with the medical evidence and included a well-supported rationale to support their conclusion. There are also no medical opinions from VA examiners or otherwise addressing aggravation of OSA by service-connected PTSD. Accordingly, service connection for OSA is granted under a secondary service connection theory of entitlement on the basis of aggravation. 38 C.F.R. § 3.310 (a). REASONS FOR REMAND 3. Entitlement to SMC based on the need for aid and attendance A February 2021 statement received from the Veteran's sister indicates that her mental health symptoms are severe enough that her sister runs her errands, does her grocery shopping, takes her to doctor appointments and that her sister lacks the motivation to perform day-to-day tasks. She will not change her clothes for days at a time or keep herself groomed and hygienic. She stated that she cooks and cleans for her and that a neighbor has to check in on her daily to make sure she eats. The Board notes that the Veteran has never had a VA examination to determine whether SMC is warranted despite the foregoing evidence. The above-evidence triggers VA's duty to assist the Veteran by affording her a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board is unable to make a fully informed decision on the issue of entitlement to SMC based upon the need for aid and attendance without an examination by a qualified clinician. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private treatment records. 2. Schedule the Veteran for an aid and attendance and housebound examination with an appropriate examiner. The examiner should comment on whether the following factors are present as a result of the Veteran's service-connected disabilities only, including consideration of the statements made by the various mental health clinicians that have examined the Veteran and those submitted by her friends and family: (1) Inability of the Veteran to dress herself or to keep herself ordinarily clean and presentable; (2) inability of the Veteran to feed herself; (3) or inability to tend to the wants of nature; and (4) incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to her daily environment. 3. Readjudicate the claim for SMC based on the need for aid and attendance. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.