Citation Nr: 0814808 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 06-23 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD Rory E. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from February 1980 to June 1981. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefits sought on appeal. The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. 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 Reasons for Remand: To provide a proper notice letter, to attempt to verify the veteran's alleged in-service stressor, to obtain the veteran's complete personnel file and to provide the veteran with a VA examination. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The veteran in this case has filed a service connection claim for a psychiatric disorder to include PTSD, based on the theory of personal assault in service. There is an enhanced duty to assist the veteran with the development of her claim for service connection for PTSD as a result of a personal assault. Specifically, the RO must consider all of the special provisions of VA Adjudication Procedure Manual M21- 1MR (M21-1MR), Part IV, regarding personal assault. M21-1MR notes that personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, stalking, and harassment. M21-1MR, Part IV, Subpart ii, 1.D.17.a. M21-1MR identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1MR, Part IV, Subpart ii, 1.D.17.g. When there is no indication in the military record that a personal assault occurred, alternative evidence, such as behavior changes that occurred at the time of the incident, might still establish that an in-service stressor incident occurred. Examples of behavior changes that might indicate a stressor include: a request to be transferred 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) (2007); see Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21 manual evidentiary procedures apply in post-traumatic stress disorder personal assault cases). VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. See 67 Fed. Reg. 10330-10332 (March 7, 2002). 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. 38 C.F.R. § 3.304(f)(3) (2006). In this case, the veteran was not provided with a notice letter advising her of VA's special evidentiary development procedures, including the provisions of 38 C.F.R. § 3.304(f)(3). In this regard, the record contains a letter dated in July 2005, which indicated what the evidence must show to establish a claim for service connection for PTSD. However, the veteran did not receive a PTSD personal-assault letter and questionnaire, advising her of the alternative sources of evidence that may be submitted to corroborate her claim of the alleged in-service stressor. See M21-1MR, Part IV, Subpart ii, 1.D.17.g. The Board observes that in her August 2005 statement, the veteran indicated the occurrence of an alleged in-service stressor. In this statement, the veteran indicted that she was molested in her office by another service member. The veteran identified the perpetrator, indicating that he received a letter of reprimand, and the location of the event. However, the veteran did not provide a specific timeframe for when the alleged incident occurred. Furthermore, in June 2007, the veteran, through her representative, submitted a statement correcting the name of the alleged perpetrator of the incident. However, no attempt has been made to verify this in-service stressor. Therefore, the RO should request that the veteran provide additional details to corroborate her claim and then attempt to verify the claimed in-service stressor. In addition, although the veteran's DD-214 and several documents referencing an event of nonjudicial punishment are of record, it appears that the veteran's entire personnel folder is not part of the claims file. It is not clear from the record whether the RO has attempted to obtain the veteran's entire personnel folder, as required when developing a claim for service connection for PTSD based on personal trauma. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section D, Subsection 17 (December 13, 2005). Finally, the Board notes that a review of the veteran's clinical records shows that she has a current psychiatric disability, which has been predominantly diagnosed as schizophrenia. However, none of this evidence contains an opinion regarding whether the veteran's current psychiatric disorder is causally or etiologically related to service. Therefore, the Board finds that a VA examination is warranted to determine the current nature, extent and etiology of any psychiatric disorder, and to specifically determine if the veteran's psychiatric disorder is related to service. With regard to the veteran's claim for PTSD, the examiner should only be asked to comment on the disorder if a stressor is verified. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Therefore, in order to give the veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must provide the veteran a proper notice letter. The letter must comply with the special provisions of VA Adjudication Procedure Manual M21-1MR, Part IV, regarding personal assault, including notification of the alternative sources of evidence the veteran may submit or evidence of behavioral changes that may support her claim. 38 C.F.R. § 3.304(f)(3). 2. To the extent that the veteran indicates the existence of any alternative sources of evidence, or the RO/AMC determines that such sources may exist, the RO/AMC should request any potentially relevant documents from the appropriate source(s). 3. The RO should contact the veteran and offer her the opportunity to provide any additional information she can remember regarding her claimed stressors, as well as inform her of the importance of providing as much detail as possible. The veteran should be asked to provide specific details of the claimed stressful events during service, including the approximate date of the event. 4. The RO/AMC should obtain the veteran's complete personnel records from the National Personnel Records Center (NPRC) and associate it with the claims file. 5. With the above information, the RO should undertake any and all further development action indicated by the evidence of record concerning the veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD. The RO should review the file and attempt to verify the veteran's alleged in-service stressor. The RO should contact the Air Force Security Forces at Dyess Air Force Base or any other appropriate agency to obtain any available incident reports regarding the alleged stressor. If necessary, the RO may also 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 in service. 6. The RO should then make a determination as to whether there is any credible supporting evidence that the veteran was assaulted during active service. A statement of the RO's determination should be placed into the claims file. If no stressor has been verified, the RO should so state in its report. 7. After completing the above actions, the veteran should be afforded a psychiatric examination to determine the diagnosis of any and all psychiatric disorders which may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include psychological testing including PTSD sub scales. Regarding the claim for service connection for PTSD, the examiner should only be asked to comment on the disorder if a stressor is verified. The RO should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in current PTSD symptoms. The examiner should also determine whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. If the PTSD diagnosis is appropriate, the examiner should comment upon the link between the current symptomatology and one or more of the verified in-service stressors. If it is determined that the veteran has a current psychiatric disorder in addition to or other than PTSD, the examiner should indicate whether it is at least as likely as not that the disorder is causally or etiologically related to her military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (2007), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 8. After an appropriate period of time or after the veteran indicates that she has no further evidence to submit, the veteran's claim of service connection for a psychiatric disorder to include PTSD should be readjudicated. In the event that the claim is not resolved to the satisfaction of the veteran, she should be provided a supplemental statement of the case (SSOC) which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. She should be given the opportunity to respond thereto. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).