POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The veteran, who served in the Army National Guard from March 2004 to March 2010, including active service from October 2004 to June 2005, appeals the denial of service connection for PTSD and depression with anxious distress, and an earlier effective date for left sciatic radiculopathy. The veteran also appeals the denial of service connection for a right lower extremity nerve condition and an increased rating for left sciatic radiculopathy, including TDIU. The Board granted service connection for PTSD and depression with anxious distress, finding the veteran's report of military sexual trauma (MST) credible and corroborated by service records showing behavioral changes. The Board determined the MST occurred in the line of duty during inactive duty for training. While a VA examiner's nexus opinion was found conclusory and lacked adequate rationale, the Board relied on VA medical treatment records linking the psychological symptoms to the MST, granting service connection. For left sciatic radiculopathy secondary to left hip disability, the Board granted an effective date of August 10, 2016, finding this was when the disability first manifested, as indicated by VA examinations and treatment records. Earlier claims for hip disability did not mention neuropathic symptoms. The Board denied the veteran's request for an earlier effective date, finding the evidence weighed against it, despite mentioning the benefit-of-the-doubt doctrine. The claims for right lower extremity nerve condition, including an earlier effective date for right sciatic radiculopathy, and an increased rating for left sciatic radiculopathy including TDIU, were remanded. This was due to pre-decisional duty to assist errors, specifically the failure to associate November 2017 EMG results and non-VA chiropractic records with the claims file. The Board encouraged the veteran to submit new authorizations for these records upon remand.

Rationale

Credible and corroborated MST report; MST occurred in line of duty during inactive duty for training; Etiologically related to PTSD and depression

Full Decision Text

Citation Nr: A26040748
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 200318-78214
DATE: April 30, 2026

ORDER

Entitlement to service connection for posttraumatic stress disorder and depression with anxious distress is granted.

Entitlement to an effective date of August 10, 2016, but no earlier, for service connection for left sciatic radiculopathy is granted, subject to the laws and regulations governing payment of monetary benefits. 

REMANDED

Entitlement to service connection for right lower extremity nerve condition, to include an earlier effective date for service connection for right sciatic radiculopathy, is remanded.

Entitlement to an initial increased rating for left sciatic radiculopathy is remanded.

Entitlement to an earlier effective date for a total disability rating based on individual unemployability is remanded. 

FINDINGS OF FACT

1. The Veteran's posttraumatic stress disorder and depression with anxious distress disability is etiologically related to a military sexual trauma injury which occurred in the line of duty during inactive duty for training. 

2. The Veteran's left sciatic radiculopathy secondary to left hip disability first manifest on August 10, 2016, while a June 2011 claim for increased left hip disability was pending. 

CONCLUSIONS OF LAW

1. The criteria for service connection for posttraumatic stress disorder and depression with anxious distress have been met. 38 U.S.C. § 101(24), 1110, 5107; 38 C.F.R. § 3.6(a), 3.102, 3.303. 3.304. 

2. The criteria for an effective date of August 10, 2016, but no earlier, for service connection for left sciatic radiculopathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the Army National Guard from March 2004 to March 2010, with a period of active service from October 2004 to June 2005. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2018 by a Department of Veterans Affairs (VA) Regional Office. In the March 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2024, and a transcript of the hearing is of record. Therefore, the Board may only consider the evidence of record at the time of the February 2020 Statement of the Case, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). 

If evidence was submitted either (1) during the period after the AOJ issued the February 2020 Statement of the Case and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. VA did not receive any evidence from the Veteran or her representative relevant to the instant claims within 90 days following the hearing. If the Veteran would like VA to consider any evidence that was submitted and 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. 

However, because the Board is remanding the claims of entitlement to an increased rating for left sciatic radiculopathy and entitlement to service connection for right lower extremity nerve condition, to include entitlement to an earlier effective date for service connection for right sciatic neuropathy, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

1. Entitlement to service connection for posttraumatic stress disorder.

The Veteran contends entitlement to service connection for posttraumatic stress disorder (PTSD) as due to military sexual trauma (MST). 

Service connection may be granted for a
 are included with this decision. 

However, because the Board is remanding the claims of entitlement to an increased rating for left sciatic radiculopathy and entitlement to service connection for right lower extremity nerve condition, to include entitlement to an earlier effective date for service connection for right sciatic neuropathy, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

1. Entitlement to service connection for posttraumatic stress disorder.

The Veteran contends entitlement to service connection for posttraumatic stress disorder (PTSD) as due to military sexual trauma (MST). 

Service connection may be granted for a Veteran's disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Service connection for disabilities related to Reserve and National Guard service is more nuanced. Service connection may be awarded for a disability resulting from an injury incurred in the line of duty during inactive duty for training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Mental disorders resulting from a traumatic event, including MST, are considered injuries for these purposes. VAOPGPREC 0-01.

The Board finds the Veteran's report of ongoing MST against her by a superior during her time in the Army National Guard to be credible and corroborated by her service records which show behavior change. 38 C.F.R. § 3.304(f)(5). Her statements do not indicate that the MST occurred during her active service period from October 2004 to June 2005. The evidence of record does not show exactly when during her National Guard service the MST occurred, other than the indication that such occurred earlier in her service rather than later. However, in light of her description of the circumstances of the initial MST by this superior, the Board finds that her MST occurred in the line of duty during inactive duty for training. 

The Board finds the Veteran has current disabilities of PTSD and depression with anxious distress, as confirmed by a VA examiner and VA medical treatment records during the period on appeal. The VA examiner's May 2018 nexus opinions regarding direct service connection are not entitled to probative weight. The direct nexus opinion is conclusory, lacks adequate rationale, and ultimately fails to answer the question asked as to whether the MST stressor occurred and resulted in her current symptoms. For these reasons the VA examiner's May 2018 nexus opinions regarding direct service connection are not entitled to probative weight. 

Upon review, the Board finds the Veteran's posttraumatic stress disorder and depression with anxious distress disability is etiologically related to a military sexual trauma injury which occurred in the line of duty during inactive duty for training. In this respect, the Board relies on the VA medical treatment records which show a direct connection between her psychological symptoms during the period on appeal and the MST noted above. Consequently, service connection for posttraumatic stress disorder and depression with anxious distress is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, 21 F.4th 776.

2. Entitlement to an earlier effective date for service connection for left sciatic radiculopathy.  

The Veteran contends entitlement to an earlier effective date for service connection for left sciatic radiculopathy secondary to left hip disability. 

Once VA receives a complete claim, VA will adjudicate as part of the claim entitlement to any ancillary benefits that arise as a result of the adjudication decision. 38 C.F.R. § 3.155(d)(2). When entitlement to a secondary service connection is raised as part of an appeal regarding the primary service-connected disability, a formal claim for secondary service connection need not be filed, rather, VA must consider the secondary disability in connection with the claim on appeal. Bailey v. Wilkie, 33 Vet. App. 188, 200 (2021). 

The record reflects the Veteran filed the instant formal claim for left sciatic radiculopathy as secondary
 radiculopathy secondary to left hip disability. 

Once VA receives a complete claim, VA will adjudicate as part of the claim entitlement to any ancillary benefits that arise as a result of the adjudication decision. 38 C.F.R. § 3.155(d)(2). When entitlement to a secondary service connection is raised as part of an appeal regarding the primary service-connected disability, a formal claim for secondary service connection need not be filed, rather, VA must consider the secondary disability in connection with the claim on appeal. Bailey v. Wilkie, 33 Vet. App. 188, 200 (2021). 

The record reflects the Veteran filed the instant formal claim for left sciatic radiculopathy as secondary to left hip disability on April 20, 2017, the current effective date for service connection for this disability. However, at that time a June 14, 2011, claim for increased rating for left hip disability was pending in the legacy appeals system. Considering this, the Board finds the claim for left sciatic radiculopathy as secondary to left hip disability is part and parcel of the June 2011 claim for increased rating for left hip disability. Consequently, the date of the claim left sciatic radiculopathy as secondary to left hip disability is June 14, 2011. 38 C.F.R. § 3.155(d). 

The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation, including an increase or secondary service connection, are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date for an increase, including an award of secondary service connection under these circumstances, is the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o). If it is factually ascertainable that an increase in disability occurred within one year of the date of the claim, the effective date of the increase is the earliest date as of which it is factually ascertainable that an increase in disability occurred within that one-year look back period. Id. 

The date entitlement arose is the date when the claimant met the requirements for the benefits sought; this is determined on a "facts found" basis. 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. 38 C.F.R. § 3.400. The question then becomes, when did entitlement first arise for left sciatic radiculopathy secondary to left hip disability, during the period on appeal, which starts on June 14, 2011, and includes a one-year look back period. 

Upon review, the Board finds that the Veteran's left sciatic radiculopathy secondary to left hip disability first manifest on August 10, 2016. VA examinations and medical treatment records are silent for any statements from the Veteran indicating any left lower extremity neuropathic symptoms before August 10, 2016. A June 2010 VA examination is silent for any left lower extremity neuropathic symptoms. The Veteran sought non-VA emergency treatment after falling down a flight of stairs in February 2011, but these records are also silent for any left lower extremity neuropathic symptoms. In March 2011 she denied any numbness or tingling in the extremities during a VA primary care provider visit. She discussed the February 2011 fall with another VA provider in April 2011, and again she did not relate experiencing any left lower extremity neuropathic symptoms. 

In June 2011 she saw a VA orthopedist for her left hip and did not report any left lower extremity neuropathic symptoms. A July 2011 VA examination for her left hip was also silent for any report of left lower extremity neuropathic symptoms. She underwent a VA physical therapy evaluation in August 2011 and did not report any left lower extremity neuropathic symptoms. She did not disclose experiencing such symptoms at any of the following physical therapy sessions. She saw the VA orthopedist again in August 2011, and she did not report experiencing any left lower extremity neuropathic symptoms. 

She submitted a statement in January 2012 averring entitlement to an increased rating for her left hip disability, which did not include any indication that she was experiencing left lower extremity neuropathic symptoms. A May 2012 VA examination for her left hip is again silent regarding any left lower extremity neuropathic symptoms. 

In August 2014 she saw a new VA primary care provider and did
 therapy evaluation in August 2011 and did not report any left lower extremity neuropathic symptoms. She did not disclose experiencing such symptoms at any of the following physical therapy sessions. She saw the VA orthopedist again in August 2011, and she did not report experiencing any left lower extremity neuropathic symptoms. 

She submitted a statement in January 2012 averring entitlement to an increased rating for her left hip disability, which did not include any indication that she was experiencing left lower extremity neuropathic symptoms. A May 2012 VA examination for her left hip is again silent regarding any left lower extremity neuropathic symptoms. 

In August 2014 she saw a new VA primary care provider and did not report experiencing any left lower extremity neuropathic symptoms. Rather, she denied numbness and tingling and extremity weakness or sensory loss. In May 2016 she sought emergency services after a fall, but she did not report having any left lower extremity neuropathic symptoms at that time. On August 10, 2016, she saw a VA orthopedist and described experiencing left lower extremity neuropathic symptoms. The provider ordered an electromyography test. The record is devoid of any lay statements from the Veteran before August 10, 2016, indicating the presence of any left lower extremity neuropathic symptoms. Likewise, the record after August 10, 2016, is devoid of evidence, including any lay statement of the Veteran, indicating that she experienced left lower extremity neuropathic symptoms before August 2016. 

Because the Veteran's left sciatic radiculopathy first manifest on August 10, 2016, entitlement to secondary service connection first arose on August 10, 2016. This is the date on which the first element of service connection, the existence of a current disability was first met. Therefore, an effective date of August 10, 2016, but no earlier, for service connection for left sciatic radiculopathy is warranted. 

In reaching the foregoing determinations, the Board has applied the benefit-of-the-doubt doctrine and resolved all doubt in the Veteran's favor, which has resulted in the partial award assigned herein. However, insofar as the Board has denied an earlier effective date, the competent, probative evidence persuasively weighs against such aspects of the Veteran's claim. Therefore, the benefit-of-the-doubt doctrine is not applicable, and her earlier effective date claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, Lynch, 21 F.4th 776.

REASONS FOR REMAND

1. Entitlement to service connection for right lower extremity nerve condition, to include an earlier effective date for service connection for right sciatic radiculopathy.

2. Entitlement to an initial increased rating for left sciatic radiculopathy, to include an earlier effective date for a total disability rating based on individual unemployability. 

The Veteran contents entitlement to service connection for right lower extremity nerve condition. 

During the pendency of the appeal, the Veteran was awarded service connection for right sciatic radiculopathy associated with her service-connected lumbar spine disability effective August 29, 2023. Because the instant April 2017 claim would allow for an earlier effective date for a right lower extremity nerve condition, this appeal is not mooted by the later award. Service connection for lumbar spine disability was awarded effective November 17, 2018, again indicating a possible earlier effective date for right sciatic radiculopathy secondary to lumbar spine disability. 

The Board will not limit the instant claim to only a right sciatic radiculopathy disability, but it does find it appropriate to recharacterize the claim as one for service connection for right lower extremity nerve condition, to include an earlier effective date for service connection for right sciatic radiculopathy. 38 C.F.R. § 3.155(d). 

The Veteran also contends entitlement to an initial increased rating for left sciatic radiculopathy, including a total disability rating based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447 (2009). The record reflects that the Veteran was awarded a TDIU effective August 29, 2023. Again, because the instant claim would allow for an earlier effective date for a TDIU, this appeal is not mooted by the later award. In light of this, the Board shall recharacterize the claim as one for an earlier effective date for a TDIU, which is part and parcel of the initial increased rating claim for left sciatic radiculopathy. 

During the period on appeal
 an initial increased rating for left sciatic radiculopathy, including a total disability rating based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447 (2009). The record reflects that the Veteran was awarded a TDIU effective August 29, 2023. Again, because the instant claim would allow for an earlier effective date for a TDIU, this appeal is not mooted by the later award. In light of this, the Board shall recharacterize the claim as one for an earlier effective date for a TDIU, which is part and parcel of the initial increased rating claim for left sciatic radiculopathy. 

During the period on appeal, the Veteran underwent electromyography (EMG) in November 2017. VA medical records indicate the results of this diagnostic test can be viewed in "image display." The Board does not have access to the image display program. The November 2017 EMG results are clearly relevant to the instant claims, yet they are not associated with the record. Failure to associate the November 2017 EMG results with the record is a pre-decisional duty to assist error, and remand is warranted to correct it. 38 C.F.R. § 20.802(a). 

Additionally, VA medical records show the Veteran received non-VA chiropractic care for her lumbar spine, left hip, and left lower extremity disabilities as approved through VA's choice program in September 2018. These records may contain information regarding a right lower extremity problem. Several of these non-VA medical treatment records were scanned into VA's VISTA Imaging System throughout the period on appeal. These records are clearly relevant to the issues at hand. However, these non-VA chiropractic records in VA's VISTA Imaging System have not been associated with the record, and the Board does not have access to VA's VISTA Imaging System. Failure to associate such records with the claims file is a pre-decisional duty to assist error, and remand is warranted to correct it. 38 C.F.R. § 20.802(a).

Upon remand the Veteran may also submit information about this non-VA chiropractor and a medical records authorization for such records to be released to VA so VA may also attempt to independently obtain a complete copy of these relevant records. The Board is cognizant that the Veteran provided such information and authorization in December 2020 for this provider. Because this occurred after the February 2020 Statement of the Case was issued, there is no pre-decisional duty to assist error regarding any development related to this. Additionally, the December 2020 authorization for such records has expired. 

The Veteran is encouraged to submit a new medical authorization for such records upon remand so that VA may obtain a complete copy of the records independent from any such records scanned into VA's VISTA Imaging System. The Veteran should discuss this recommendation with her representative for assistance in completing and submitting the proper documentation for VA to obtain the non-VA chiropractic records. She and her representative may also obtain and submit the records themselves.  

The matters are REMANDED for the following actions:

1. Obtain and associate with the record the November 2017 EMG results located in VA's image display program within VA's electronic medical records management system. A screenshot of such evidence will suffice. 

2. Obtain and associate with the record the non-VA chiropractor records uploaded into the VISTA Imaging System during the period on appeal. A screenshot of such evidence will suffice. 

 

 

Nathaniel Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sasha Larie Boersma

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.