Citation Nr: 1015403 Decision Date: 04/28/10 Archive Date: 05/06/10 DOCKET NO. 04-42 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a left elbow disability. 3. Entitlement to a rating in excess of 10 percent for service-connected gastric ulcer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from October 1952 to September 1954. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2004 rating decision, the RO denied service connection for PTSD. Then in a September 2006 rating decision, the RO denied service connection for a neuropsychiatric disability and a left elbow disability, and continued the 10 percent disability evaluation for gastric ulcer. As the claims of service connection for PTSD and a neuropsychiatric disability both involve mental health disability, they have been merged and are characterized as one issue encompassing both issues as reflected on the cover page of this decision. In September 2009, the Veteran presented testimony before the undersigned Acting Veterans Law Judge at the RO. A copy of the transcript has been associated with the claims folder. 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 contends that his current acquired psychiatric disability is related to in-service military sexual trauma. The United States Court of Appeals for Veterans Claims (Court) in Patton v. West, 12 Vet. App. 272 (1999) held that VA manual procedures for developing evidence related to PTSD claims based on personal assault must be followed and remanded the claim for additional notice and development. The Court noted that, in cases where available records do not provide objective or supportive evidence of the alleged in- service stressor, it may be required that VA develop alternative sources of information. Consistent with the holding in Patton, VA must notify the Veteran of the possible alternative sources for verifying the claimed in-service stressors due to personal assault. In personal assault cases, more particularized requirements are established regarding the development of "alternative sources" of information as service records "may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities." VA ADJUDICATION PROCEDURAL MANUAL M21-1, Part III, para. 5.14c(5). Examples of corroborating 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. VA will not deny a PTSD 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 the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 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. VA ADJUDICATION PROCEDURAL MANUAL M21-1, Part III, para. 5.14c(3). The Court likened VA's duty to notify a claimant of the criteria set forth in 38 C.F.R. § 3.304 (f) (3) to the requirements set forth in the VCAA (38 U.S.C.A. § 5103). Gallegos v. Peake, No. 05-2920 (December 31, 2008). While the Veteran received a January 2003 letter regarding his PTSD claim which included a PTSD questionnaire, that letter and subsequent letters failed to address the factors cited herein. Consequently, this claim must be remanded to comply with VA development procedures as set out in Patton and Gallegos. During his September 2009 hearing and on a June 2009 VA Form 21-4142, Authorization and Consent to Release Information to the VA, the Veteran indicated that he had been receiving treatment from the VA Medical Center up until the present time. VA treatment records dated up until 2006 are of record. Because VA is on notice that there are records that may be applicable to the Veteran's claims and because these records may be of use in deciding the claims, these records are relevant and should be obtained. 38 C.F.R. § 3.159 (c)(2) (2009); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the record contains an April 2009 letter from VA social workers in support of the Veteran's claim for service connection for an acquired psychiatric disability. While the Veteran's claims for a left elbow disability and increased rating for gastric ulcer were subsequently readjudicated in a May 2009 supplemental statement of the case, his claim for service connection for an acquired psychiatric disability was not readjudicated considering the new evidence. This evidence has not been reviewed by the agency of original jurisdiction and there is no indication from the Veteran that he intends to waive this procedural right with the evidence received. See 38 C.F.R. §§ 19.37, 20.1304 (2009). On remand, the RO must consider the additional evidence and readjudicate the claim. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). As to his increased rating claim for service-connected gastric ulcer, the Veteran was last afforded an examination in August 2006. However, during his September 2009 hearing, the Veteran's testimony indicates that his symptoms may have worsened since his examination. The Court has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, a contemporaneous examination of the Veteran's gastric ulcer is necessary to accurately assess his disability picture. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit alternative forms of evidence (evidence other than service records) to corroborate his account of the alleged in-service assault. A "special PTSD personal-assault" letter and questionnaire should be sent to the Veteran to assist him in identifying potential alternative sources of evidence to establish an in-service stressor, 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. The Veteran should also be notified that alternatively, evidence of behavioral changes following the alleged in-service assault may constitute credible supporting evidence of the stressor under 38 C.F.R. § 3.304 (f) (3). The Veteran must then be provided additional time to submit such evidence after receipt of the personal assault letter and, where appropriate, by obtaining evidence on the Veteran's behalf. 2. Obtain all outstanding treatment records from the VA Medical Center in Bronx, New York. All attempts to locate these records should be fully documented in the claims folder. 3. Afford the Veteran an examination to determine the current level of severity of his gastric ulcer. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. Any indicated studies should be performed and the examination report should comply with all AMIE protocols for rating ulcers. 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims based on all evidence of record, to specifically include evidence received since the claims were last adjudicated. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim(s). 38 C.F.R. § 3.655 (2009). 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. 2009). _________________________________________________ DAVID L. WIGHT Acting 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).