Citation Nr: 0942681 Decision Date: 11/09/09 Archive Date: 11/17/09 DOCKET NO. 04-09 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a psychiatric disability, to include bipolar disorder and post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active service from October 1981 to February 1982, and from November 1982 to March 1988. This appeal initially come before the Board of Veterans' Appeals (Board) from a February 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Chicago, Illinois, which reopened the Veteran's claim for service connection for bipolar disorder and denied the claim on the merits. In November 2006, the Board, determining that new and material evidence had been received to reopen the previously denied claim, remanded the matter so that additional development of the evidence could be conducted. 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 claimed entitlement to service connection for depression in May 1988. The RO denied this claim in March 1989, characterizing the claim as entitlement to service connection for adjustment disorder with mixed emotional features. The Board here observes that adjustment disorder with depression was diagnosed during the Veteran's active military service. The Veteran sought to reopen his claim for "depression" in July 2001. See VA Form 21-4138. Several VA outpatient medical records, dated in 1999, include diagnoses of bipolar disorder and major depression. The report of a January 2002 VA mental disorders examination included a diagnosis of bipolar disorder, depressed. In February 2002, the RO, while reopening the claim, confirmed and continued the previous denial of service connection for "bipolar disorder, depressed (previously rated as adjustment disorder, with mixed emotional features)." The Veteran perfected an appeal, and the Board, in November 2006, found that new and material evidence had been received to reopen the claim for entitlement to service connection for bipolar disorder. The Board remanded the claim to enable additional development of the evidence to be conducted. Following the Board's November 2006 remand the Veteran, by means of additional argument submitted to VA in November 2007, essentially claimed that his psychiatric problems for which he sought service connection were related to his being sexually assaulted in service. As part of this same correspondence, consisting of many handwritten pages, he both claimed to not have reported this to his superiors, and also to have reported it (to the 13th area medical department). He also claims that his wife was sexually assaulted by a named staff sergeant, and that he first learned of this later (he did not say when) from a named master sergeant. Review of the VA psychiatric examination ordered as part of the Board's November 2006 remand, conducted in June 2009, shows that the Veteran provided his history of in-service sexual assault to the examiner. This appears to be the first time, based on review of the medical records on file dated before this time, that he had so provided such a history to a medical examiner. The examiner reported that he had reviewed the Veteran's claims folder. The examiner noted that the Veteran had been previously diagnosed with bipolar disorder but was now seeking compensation for PTSD. The examiner also observed that the Veteran had been treated during his military service for adjustment disorder with depressed mood. The examiner was requested to "identify all psychiatric disorders and provide an opinion as to whether it is at least as likely as not that the diagnosed disorder(s) is causally related to [the Veteran's] military service." Following his examination of the Veteran the examiner provided a diagnosis of PTSD. He opined that it was more likely than not that the Veteran had PTSD which was misdiagnosed as bipolar disorder due to effects of methamphetamine & cocaine. He added that the Veteran's in-service sexual assaults were the cause of his PTSD, diagnosed as adjustment disorder in service. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) considered a case in which the Board had denied a claim for service connection for PTSD where the Veteran specifically requested service connection for PTSD, but the medical record also included diagnoses of an anxiety disorder and a schizoid disorder. The Board narrowly construed the claim and denied upon the absence of a current diagnosis. The Court, in vacating the Board's decision, pointed out that a claimant cannot be held to a "hypothesized diagnosis - one he is incompetent to render" when determining what his actual claim may be. The Court further noted that the Board should have considered alternative current conditions within the scope of the filed claim. Id. The Board has reviewed the case at hand and, while noting that the fact pattern here is dissimilar to that in Clemons, finds that Clemons is nevertheless somewhat applicable here. Notably, while this claim has been adjudicated by the RO and certified to the Board as a claim for service connection for bipolar disorder, the Veteran has also been diagnosed with, as indicated in the above-discussed medical records, adjustment disorder (with mixed emotional features), major depression, and PTSD. As indicated under Clemons, these other diagnoses are to be considered as part of the underlying claim. To date, however, the RO has not adjudicated this claim so broadly as to incorporate psychiatric diagnoses other than bipolar disorder. The RO has also not provided adequate notification addressing what is needed for a claim incorporating such diagnoses. This is significant because the statutory and regulatory provisions addressing PTSD claims, as contained in 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f), are different from the provisions addressing other service connection claims. See 38 C.F.R. §§ 3.303, 3.307, 3.309. And, of significant note, are the special provisions of VA Adjudication Procedure Manual M21-1 (M21-1), Part III, regarding personal assault. Notice of these have not been afforded the Veteran. M21-1 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, and stalking." M21-1, Part III, 5.14c. M21-1 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. M21-1, Part III, 5.14c(4)(a). 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: visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; lay statements indicating increased use or abuse of leave without apparent reason; changes in performance or performance evaluations; lay statements describing episodes of depression, panic attacks or anxiety with no identifiable reasons for the episodes; increased or decreased use of prescription medication; evidence of substance abuse; obsessive behavior such as overeating or under eating; pregnancy tests around the time of the incident; increased interest in tests for HIV or sexually transmitted diseases; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; breakup of a primary relationship. M21-1, Part III, 5.14c(7)(a)-(o). See also 38 C.F.R. § 3.304(f)(3) (2009); Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21 manual evidentiary procedures apply in PTSD personal assault cases). Corrective notification action, as well as further adjudication, is thus needed. 38 C.F.R. §§ 3.159(b), 19.9. While the Board again notes that in the course of the recent VA mental disorders examination conducted in June 2009, at which time the examiner seemed to relate the Veteran's diagnosed PTSD to his having been sexual assaulted while in the military, another examination here is needed, to follow the Veteran having been provided the opportunity to substantiate his claim of in-service sexual assault. Here, the Board observes that while the VA examiner in June 2009 did not provide a diagnosis of bipolar disorder, bipolar disorder had been diagnosed during the course of this appeal. In McClain v. Nicholson, 21 Vet App 319 (2007), the Court held that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolves prior to the Secretary's adjudication of the claim. Under such circumstances, provided the resolved disability is related to service, a claimant would be entitled to consideration of staged ratings. Accordingly, this case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding the claim on appeal, now characterized as service connection for a psychiatric disorder, to include bipolar disorder and PTSD. This letter must inform the Veteran about the information and evidence that is necessary to substantiate the claim, in terms of 38 C.F.R. §§ 3.303, 3.307, and 3.309, and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The Veteran should be afforded the opportunity to identify potential alternative sources of information to verify the claimed sexual assault as set forth in M21-1, part III, 5.14(c). He should be informed that these alternative sources could include, but are not limited to, private medical records; civilian police reports; reports from crisis intervention centers; testimonials from family members, roommates, fellow service members, or clergy; and copies of any personal diaries or journals. 2. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the Veteran was exposed to a stressor(s) in service, and if so, what was the nature of the specific stressor(s). In rendering this determination, the attention of the RO is directed to the law cited in the discussion above. If official service records or alternative records discussed in M21-1, Part III, Sec. 5.14c corroborate the Veteran's allegations of stressors occurring, the RO should specify that information. The RO should also indicate whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors and if so should decide whether this evidence needs the interpretation by a clinician. See M21- 1, Part III, 5.14c (9). In this regard, the RO should comment on the January 1988 Physical Evaluation Board report, which found that the Veteran was unfit for military service, in part to his having been diagnosed with adjustment disorder with history of depression. If the RO determines that the record establishes the existence of a stressor or stressors, the RO must specify what stressor(s) in service it has determined are established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 3. Upon completion of the above, the RO should schedule a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. If feasible, this examination should be conducted by a psychiatrist who has not previously examined, evaluated or treated the Veteran. The examiner should review the entire claims folder, to include all of the service treatment records, and all post service VA medical records, to include the examination reports dated in December 1988, January 2002, and June 2009. A copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). Any diagnosis must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multi-axial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether it is at least as likely as not that the current symptomatology is linked to one or more of the in-service stressors found to be established by the record and found sufficient to produce PTSD. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed psychiatric disorder(s) as shown by the evidence of record, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to prior diagnoses of bipolar disorder, major depression, and PTSD. The examiner should also provide an opinion as to whether it is at least as likely as not that any psychiatric disorders diagnosed in the course of the examination, other than PTSD, is/are etiologically related to the Veteran's period of active service. Further, in line with the M21-1 provisions, the examiner is requested to provide detailed medical analysis and interpretation of the diagnoses found present on examination in light of all the evidence of record for the purpose of addressing whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. Note: 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 a certain conclusion as it is to find against it. 4. The Veteran is hereby notified that it is his responsibility to report for a scheduled VA examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Thereafter, the RO must review the claims folder and ensure that the foregoing development actions, as well as any other indicated development, have been conducted and completed in full. If the response is deficient in any manner, the RO must implement corrective procedures. 6. Thereafter, the RO should complete any additional development that is indicated and readjudicate the issue of entitlement to service connection for a psychiatric disability, to include bipolar disorder and PTSD. If the benefit requested on appeal is not granted, the RO should issue a supplemental statement of the case, which must contain notice of all relevant action taken on the claim. A reasonable period of time for a response should be afforded. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ 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) (2009).