Citation Nr: 1136766 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 04-29 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder, panic disorder and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from July 1985 to December 1988, with subsequent service in the United States Navy Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2004, the Veteran and her spouse testified at a personal hearing before a Decision Review Officer (DRO) at the Waco RO. A transcript of this hearing was prepared and associated with the claims file. In March 2007, the Board remanded this case for additional development, and the case was returned to the Board for further appellate review in July 2009. At that time it was once again remanded for further development. 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 The Veteran asserts that she has a psychiatric disorder to include major depressive disorder, panic disorder, and PTSD attributable to service on two bases. When the Veteran initially filed her claim for service connection of a psychiatric disorder, she did so on the grounds that such a disorder was directly incurred in service and was attributable to her service as a Postal Clerk. In this regard, she believes that the stress of this job led to development of a psychiatric disorder. She points to in-service complaints of headaches, shortness of breath and heart palpitations in this regard. During the adjudication of her claim, the Veteran subsequently offered a history of sexual assault during service, specifically in 1986. She also seeks service connection for a psychiatric disorder due to this alleged incident. A review of the Veteran's service treatment records discloses no diagnosis of any psychiatric disorder during the Veteran's period of active service. At entrance the Veteran denied any psychiatric problems and her psychiatric state was normal on clinical evaluation. The Veteran provided a history of child birth in 1983 at the age of 20. See May 1985 reports of medical history and examination. However, the service treatment records do show that in early May 1988 the Veteran presented with a complaint of headaches and a fast heartbeat, with episodes of these symptoms having occurred about weekly for the past few months. The Veteran described that during these episodes she had bi-frontal headache, pressure sensation in the chest, lightheadedness and shortness of breath. The note associated with this complaint notes that a Holter monitor showed no symptomatology in March 1988. At this time, the Veteran was treated with vagal maneuvers, eye pressure was applied and a carotid massage was performed. Paroxysmal atrial tachycardia (PAT) relieved by carotid massage was assessed. A service treatment noted dated a few days later in May 1988 documents a history of episodic headaches with associated palpitations, thought to be PAT. Examination resulted in an impression of "normal cardiac" and that the Veteran's headaches may have been stress-induced tension headaches or possibly a migraine, although nothing really suggested the latter. In late May 1988 the Veteran sought follow-up treatment for headaches and tachycardia. At this time, she reported that she continued to have headaches with an associated rapid heartbeat. Examination resulted in an impression of headaches and tachycardia. Cardiac etiology was ruled out and the physician felt that the symptoms were related to "sinus" and were not PAT. A neurology consultation resulted in a provisional assessment of headaches. In December 1988 the Veteran received a separation examination. At this time ,she denied a history of frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia and nervous trouble of any sort. She did, however, acknowledge a history of frequent or severe headache and sinusitis. A history of frontal headaches attributable to stress and sinusitis were noted by the examining physician. See December 1988 report of medical history. Psychiatric examination was normal at this time and the Veteran was then approximately 20 weeks pregnant. See December 1988 report of medical examination. The earliest documented evidence pertaining to psychiatric treatment appears in an August 2001 private treatment record from Dr. T. At this time, the Veteran complained of problems with sleep and stress in her job and denied that she had ever been treated for depression, which was assessed at this time. In July 2003 the Veteran was seen at the VA Medical Center. At this time a complaint of depression for 1 year was noted and the Veteran was referred to mental health. An October 2003 mental health outpatient noted documents that the Veteran reported a 1 year history of being depressed, tearful and having decreased sleep and increased appetite. She also offered a history of panic attacks with increased anxiety, palpitations, sweating, tremulousness, etc., which could occur daily. She also reported problems with going outdoors and that she tended to avoid social situations. She reported a history of panic attacks since her service in the Navy, which were initially problematic, but "then she did well until about a year ago." Of record is a January 2004 VA mental health outpatient note pertaining to the Veteran's diagnosed panic disorder and major depressive disorder. At this time, the Veteran was extremely distressed as her husband had just been deployed to Iraq and she was particularly concerned about her inability to function independently. It was noted that the Veteran was a somewhat challenging historian in a sense that she was often somewhat vague and circumstantial; however, this was thought to be likely due to her overwhelming anxiety. At this time the Veteran reported that she had first experienced anxiety in the mid to late 1980s, noting that she had been alarmed by associated palpitations at this time, but that a cardiac workup was negative at that time. Within the past year, the Veteran explained that she had experienced escalating symptoms of anxiety and depression. Panic disorder without agoraphobia and major depressive disorder, recurrent, severe, without psychotic features, were assessed at this time. In June 2004 the Veteran was seen at the VA Medical Center for a psychological assessment. At this time, the Veteran reported some improvement of her symptoms and an assessment of PTSD was considered. With respect to her sexual history, the Veteran reported that at age 15 she had to fight off a sexual assault by a non-family member. She related that she kept this incident to herself, although it apparently disturbed her. She also related that during service she had been involved with another soldier and became pregnant and that "all of a sudden he didn't lover [her] anymore" and had abandoned her. She reported that at this time she had her first panic attack, and that although she sought treatment for them they were discounted as being insignificant. She explained that she married the man who was still her husband soon after she became pregnant and that she and her daughter "were a package deal." She also detailed other post-service events, including on-the-job stress. The VA examiner felt that the Veteran met all of the criteria for an assessment of PTSD. In October 2004 the Veteran and her husband offered testimony before a DRO. With respect to service, she noted that beginning in approximately February 1988 she first complained of chest pains and pressure, nausea, lightheadedness and headaches. She noted that testing was negative and that she was referred to stress management. She felt, therefore, that she had incurred a psychiatric condition in service. At this time, she explained that immediately after her separation from service she did not seek any psychiatric treatment as she was pregnant with her son. Her husband testified that he "knew something was wrong" with the Veteran during service and that she was in a very stressful job in the Navy. Of record is a September 2007 letter from the Veteran's husband. In this letter, he relates that the Veteran had been suffering from PTSD and depression since 1986, when he met her aboard the USS McKee. He related his observations of the Veteran complaining of chest pain and problems sleeping at that time and that she had indeed been assessed as having anxiety attacks in service, as well as "stress." He explained that over the hears the Veteran had tried to live with her medical condition but that sleepless nights, panic attacks and uncontrollable outbursts stemming from her paranoia got the best of her and that since June 2003 her condition had continued to deteriorate. In furtherance of substantiating her claim, the Veteran was provided a VA examination in October 2008. The report associated with the examination notes that the entire claims file had been reviewed by the VA examiner. The examiner noted that the Veteran began having medical treatment for her condition in 1987 by a doctor onboard ship and was then treated by a private physician in 2002. At the time of the examination, the Veteran reported that she began having symptoms of emotional distress in 1986 following a sexual assault in the Navy. The Veteran related that she did not like to socialize, however, she was very stylishly attired and exhibited good social skills. With respect to military history, the Veteran noted that she had been the first woman in her area on ship and that she was spoken harshly to. She reported, in fact, that she was sexually assaulted, but that the event was never reported. She stated that she had actually been raped by a seaman who was "on her same level" and indicated that "it was somebody [she] thought was nice." Mental status examination showed a somewhat hyperactive and histrionic individual. Her thought processes were logical, coherent and relevant. She was noted as attractive, articulate, verbal, well dressed, well-groomed and cooperative. She was immature and histrionic during the interview. Major depressive disorder was assessed. The examiner noted that the Veteran did present with some features of PTSD, although she was not able to give a clear enough picture for the examiner to make this assessment. As the Veteran reported that she had been treated, apparently for a psychiatric condition, while in the military, the examiner felt that the Veteran's "present condition [was] one in the same with the condition for which she was treated in the military." When this claim was last before the Board it was remanded to develop the aspect of the claim involving sexual assault and to attempt verification of the Veteran's alleged rape. The RO attempted corroboration, but received a negative response to its request from the Naval Criminal Investigative Service (NCIS). See August 2010 response from NCIS. Based upon this negative response, the RO apparently concluded that no credible corroborating evidence of the alleged sexual assault existed and did not further develop the claim by obtaining a VA examination per the Board's conditional remand directives. Unfortunately, upon further review, the Board finds that another VA examination is necessary to decide the appeal. When the Veteran was afforded a VA examination in October 2008, the VA examiner offered an apparently favorable opinion that the Veteran's "present condition is one in the same with the condition for which she was treated in the military." However, the examiner did not identify what condition that was in service or adequately address the service treatment records, which notably contain no diagnosed psychiatric disability, although her assessment of stress related symptomatology suggests possible manifestations of a psychiatric disability. It also appears that the examiner did not thoroughly review the claims file as they did not note any of the discrepancies in the Veteran's offered histories, as outlined above. Thus, the examination was not based upon consideration of the Veteran's prior history. Also, if a claim for PTSD is based on an in-service personal assault, 38 C.F.R. § 3.304(f)(5) provides that VA may submit any evidence that it receives regarding the alleged in-service assault to an appropriate medical or mental health professional for an opinion as to whether the personal assault actually occurred. In light of the various discrepancies in the Veteran's offered histories, the Board concludes that such an opinion is necessary in this case. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for another VA examination to determine the likelihood that the Veteran's claimed personal assault actually took place, and if so, whether major depressive disorder, panic disorder or PTSD is the result of that stressor. The complete claims folder should be provided to the examiner, and the examiner should be asked to specifically state that the complete folder has been reviewed, to include service treatment and personnel records. The examiner should be asked to provide a specific opinion as to the likelihood that the alleged stressor actually occurred, and if so, whether it is as least as likely as not that PTSD or any other psychiatric disorder found to be present to include major depressive disorder and panic disorder is related to such stressor. The examiner should render an opinion as to whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that the claimed assault took place, and whether it is at least as likely as not that the Veteran's PTSD or any other psychiatric disorder, to include major depressive disorder and panic disorder, is related to that assault. If the examiner concludes that it is unlikely that the claimed assault took place, the examiner should then offer an opinion as to whether it is at least as likely as not that any psychiatric disorder found to be present is otherwise related to service, to include the May 1988 complaints of headaches, headache, pressure sensation in the chest, lightheadedness and shortness of breath, etc. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The clinician is also advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. 2. Thereafter, the issue on appeal should be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and her representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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. 2010). _________________________________________________ MICHAEL LANE 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) (2010).