Citation Nr: 0811867 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-12 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD LouElla Kuta, Associate Counsel INTRODUCTION The veteran served on active duty from October 1967 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the benefit sought on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In multiple statements, the veteran has claimed that he was sexually assaulted during service and that these assaults constituted an in-service PTSD stressor. Specifically, he alleges that while serving on active duty in 1970, he was coerced by a civilian supervisor to engage in sexual acts on at least 10 occasions. See 38 C.F.R. § 3.304(f) (Requisite for a grant of service connection for PTSD is medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors). If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service 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. 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. 38 C.F.R. § 3.304(f)(3). However, VA will not deny such claims without: (1) first advising veterans that evidence from sources other than a veteran's service medical records, including evidence of behavior changes, may constitute supporting evidence of the stressor; and (2) allowing him the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. Id. The regulation specifically provides that VA "may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred." Id. (Italics added). The claim is presently remanded for this purpose. The record indicates that in April 1970, approximately four months after the veteran alleges was the onset of sexual intimidation by his supervisor, the veteran was involved in a driving while intoxicated incident. Apparently after a period of time following the driving while intoxicated incident and in an April 1970 physical profile serial report, the veteran's "PULHES" physical profile was noted to be revised to indicate a "1" as to physical capacity and stamina, from a formerly assigned profile of 3, thus suggestive of some physical condition impairing the veteran's "physical capacity and stamina." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); (Observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service. The veteran was assigned from George Air Force Base in California to a stationing in Thailand in June 1970. In November 1970, the veteran was counseled after having contracted gonorrhea, and a repeat counseling was afforded in January 1971. The Board has not reviewed the record with a view towards its merits, and as directed below, the examiners conducting the medical inquiry directed below must conduct a separate review of the record. However, the Board notes that apart from the incidents and assignments described above, the record bears the following: 1. The veteran's reports of Transfer or Discharge from the Armed forces (DD Forms 214) reveal that the veteran entered active duty on October 18, 1967 for a period of 4 years. Upon his imminent discharge from active duty, he reenlisted on September 10, 1971 and completed an additional two and one-half years of service without apparent difficulties. Both DD Forms 214 indicate that the veteran incurred no "time lost" (i.e., unauthorized absences, periods of confinement by military or civilian authorities, or hospitalizations due to causes not in line of duty). At the conclusion of his service, the veteran was the recipient of the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, the Small Arms Expert Marksmanship Medal. 2. The veteran was the recipient of the Air Force Good Conduct Medal with one Oak Leaf Cluster (i.e., an initial and subsequent award). His service "Airman Military Record" (AF Form 7) is in substantial accord with the DD Forms 214, and show satisfactory service, and an award of the Air Force Longevity Service medal. 3. The veteran's "Airman Performance" reports (AF Form 909), which for periods as reported, reflect the veteran's duties" personal qualities pertaining to performance of duty, working relations, learning ability, "self(-) improvement efforts," adaptability to military life, and bearing and behavior. These reflect that up to and including the period beginning in mid-January 1970 when the alleged sexual trauma occurred, the veteran was performed his duties without difficulty, and that he received several comments indicating that he was progressing towards acceptance of additional responsibility by the Air Force. 4. In addition to the March 1970 driving while intoxicated incident, in n incident in late 1973 (two years after the alleged sexual trauma) the veteran received non-judicial punishment for use of marijuana. 5. The record of performance evaluations shows that during the period of the alleged sexual trauma (beginning mid-January 1970), indicate that the veteran had minimal adjustment to his new duties. The record shows that the veteran adjusted to these new duties, as by July 1970, his rating indicated that his supervisors noted that the veteran was an "outstanding" non-commissioned officer who was "highly motivated and devoted to duty." He was noted to "promote harmony among his fellow workers," which had earned him the respect of both peers and superiors. 6. In a March 1974 pre-separation medical questionnaire, the veteran specifically denied then having, or ever having had, "nervous trouble of any sort". 7. Medical records following separation from service indicate the veteran has been diagnosed as having various psychiatric disorders. 8. In a January 2002 psychological evaluation, the examiner diagnosed depression, with a history of suicide attempts. The veteran reported that he often thought of unpleasant things, mostly imagined. 9. In March 2002, the veteran was examined by the North Carolina Department of Health and Human Services. The veteran reported having depression for at least 30 years. He also reported that he began experiencing anxiety while in the military because he was arrested for marijuana possession. The veteran was diagnosed with reactive depressed mood with anxiety, chemical dependence of alcohol and marijuana, and borderline dependent traits. 10. A VA outpatient treatment record dated in December 2005 showed pertinent diagnoses of alcohol dependence, marijuana dependence, and depression. 11. A June 2006 VA treatment record diagnosed the veteran with alcohol, tobacco, and marijuana addiction, with an indication from the veteran that he did not want to stop such use; bipolar disorder, and schizophrenia. A July 2006 VA treatment record indicated a diagnosis of alcohol dependence and bipolar disorder by history. 12. In July 2006 and December 2006, VA examiners diagnosed the veteran with PTSD and adult sexual abuse. Because appropriate medical inquiry must be conducted, the case is REMANDED to the RO/AMC for the following action: 1. The RO/AMC will ascertain if the veteran has received any VA, non-VA, or other medical treatment for PTSD; or whether he has any other information relative to substantiation of his claimed stressors that is not evidenced by the current record. The veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. The RO/AMC should then obtain these records and associate them with the claims folder. 2. After the passage of a reasonable amount of time, or upon receipt of the veteran's response to that advisement in paragraph 1, the RO/AMC will afford the veteran a neuropsychiatric examination, and any other necessary medical or mental health care examinations, to ascertain whether the evidence of record and any account of the veteran supports an opinion as to whether the veteran sustained one or more personal sexual assaults in service. The claims folder, and a copy of this remand, will be reviewed by the examiner(s) in conjunction with the examination and the examiner(s) will acknowledge this receipt and review in any report generated as a result of this remand. 3. After conducting any appropriate clinical testing, review of the evidence of record and any interview of the veteran, the examiner(s) must State an opinion as to whether the evidence of record indicates that the veteran sustained sexual assault trauma while serving on active military duty in early 1970 as he alleged. The examiners must provide the reasons and bases for any opinion with specific reference to the development of PTSD viz. the veteran's driving while intoxicated; development of venereal disease; duty performance; and subsequent diagnoses after service. 4. The RO/AMC should take such additional development action as it deems proper with respect to the claims, including the conduct of any other appropriate VA examinations, and follow any applicable regulations and directives implementing the provisions of the VCAA as to its notice and development. Following such development, the RO/AMC should review and readjudicate the claims. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.). If any such action does not resolve the claims, the RO/AMC shall issue the appellant a Supplemental Statement of the Case. Thereafter, the case should be returned to the Board, if in order. 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. 2007). _________________________________________________ Vito A. Clementi 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) (2007).