Citation Nr: 0615208 Decision Date: 05/24/06 Archive Date: 06/02/06 DOCKET NO. 02-19 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD), depression, and bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. P. Shonk, Associate Counsel INTRODUCTION The veteran served on active duty from August 1978 to April 1986. This matter comes to the Board of Veterans' Appeals (Board) from a March 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Board remanded this case in December 2003. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on her part. REMAND In light of the Veterans Claims Assistance Act of 2000, additional evidentiary development is necessary. When the Board remanded this case in December 2003, it noted the veteran's contentions concerning in-service sexual harassment and assault, and asked the RO to solicit additional information from the veteran because those events had not been clearly identified. Also, the remand had recognized that the veteran's January 1986 separation examination indicated an abnormal psychiatric examination due to depression, suicidal thoughts, and difficulty sleeping. Post-service, a June 2000 VA examination (without explicit claims file review) had rendered diagnoses of bipolar disorder, by history; alcohol abuse, in remission; panic disorder of unknown etiology since 1990; and borderline personality disorder. The Board's directives asked the RO to make a determination as to whether there was any credible evidence that the veteran was assaulted by a fellow serviceman or servicemen during service, and then, the veteran should be scheduled for a VA examination. It does not appear, however, that the latter request was fulfilled. It is noted that a PTSD claim based upon personal assault involves different considerations. See 38 C.F.R. § 3.304(f)(3). In Patton v. West, 12 Vet. App. 272, 280 (1999) (quoting Cohen v. Brown, 10 Vet. App. 128, 145 (1997), the Court recognized that it had at one point held "an opinion by a mental health professional based on a postservice examination of the veteran cannot be used to establish the occurrence of a stressor[.]" The latter statement, however, had been made in the "context of discussing PTSD diagnoses other than those arising from personal assault." Id. As to personal-assault cases, the Court noted that VA had provided for special evidentiary development procedures, "including interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." Id. Evidence of behavior changes following the claimed in-service assault may constitute credible supporting evidence of the stressor. 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. 38 C.F.R. § 3.304(f)(3). As such, VA may submit any evidence it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions, Colvin v. Derwinski, 1 Vet. App. 171 (1991), which is deemed necessary in this case. Moreover, it appears that the veteran may be in receipt of Social Security Administration (SSA) disability benefits, and the RO should attempt to obtain any such records. Accordingly, the case is REMANDED for the following action: 1. The RO should send the veteran a VCAA notification letter that complies with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), such that the letter includes information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The letter should also tell the veteran to provide any evidence in her possession that pertains to the claim. 2. The RO should attempt to obtain SSA records, and any lack of success should be documented in the claims file. 3. The veteran should be scheduled for a VA psychiatric examination (the claims folder must be made available to the examiners for review) for a purpose of determining whether she meets the diagnostic criteria for PTSD (and any other acquired psychiatric disorder) and, if so, whether PTSD is linked to any incident of service, to include an alleged assault. The examiner should assess the entire record and provide an opinion as to whether there is any evidence of behavior changes during or after service after the alleged personal assault that provides corroborative evidence that a claimed in- service personal assault actually occurred. Evidence of behavior changes may include deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. If the VA examiner concludes that there is evidence of behavior changes sufficient to corroborate the claimed personal assault, he or she should provide an opinion as to whether it is at least as likely as not that the veteran currently has PTSD as a result of that claimed assault or any other incident of service. Additionally, the examiner should opine whether it is at least as likely as not that a current psychiatric disorder (other than PTSD and including depression and bipolar disorder) is etiologically related to service. 4. After completion of the above and any additional development deemed necessary, the RO must readjudicate the claim of service connection for an acquired psychiatric disorder (including PTSD, depression, and bipolar disorder). If the determination of this claim remains unfavorable to the veteran, the RO must issue a supplemental statement of the case and provide her a reasonable period of time in which to respond before this case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2005).