Citation Nr: 1036699 Decision Date: 09/28/10 Archive Date: 10/05/10 DOCKET NO. 05-06 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a right leg disorder including secondary to status-post hysterectomy with bilateral salpingo-oophorectomy. 3. Entitlement to service connection for lumbar strain, including secondary to status-post hysterectomy with bilateral salpingo-oophorectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The Veteran had active military service from September 1978 to June 1987. This matter is 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 Winston-Salem, North Carolina. By that rating action, the RO denied service connection for PTSD, lumbar strain and a right leg disorder. The Veteran appealed the RO's April 2004 rating action to the Board. In September 2008, the Board remanded the instant service connection claims on appeal to the RO for additional development. The case has returned to the Board for appellate consideration. As noted in the Introduction section of the September 2008 remand, the Board restated the claims pertaining to a right leg disorder and lumbar strain to include the issues of whether the claimed disorder are secondarily related to service-connected status-post hysterectomy with bilateral salpingo-oophorectomy, based on the Veteran's assertions and supporting evidence provided. The issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the to the AOJ for appropriate action. The appeal is REMANDED to the RO/Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board finds that additional development is necessary with respect to the service connection issues on appeal. Specifically, a VA mental disorders examination is directed in accordance with 38 C.F.R. § 3.304(f). In addition, another VA orthopedic examination is required in order to comply with the Board's September 2008 remand directives concerning the secondary service connection issues on appeal. While the Board has presently summarized the record and directs that VA mental and orthopedic examinations be afforded to the Veteran, the summary of information does not relieve the examiners of the obligation to examine the claims folders and any other evidence generated in conjunction with their respective examinations. Regarding her claim for service connection for PTSD, the Veteran contends that it is the result of having been sexually assaulted by a chaplain at Wright Patterson Air Force Base (WPAB), Ohio during basic training. The Veteran maintains that due to the trauma surrounding the situation, she cannot remember the alleged assailant's name. She maintains that after the alleged in- service assault, she did not inform anyone of the incident because she was afraid and intimated because her alleged assailant was Caucasian and she is African American. She asserts that she finally told her daughter and First Sergeant [redacted], who is now deceased. As indicated in a November 2007 RO formal finding, the Veteran's complete service treatment records (STRs) are unavailable. A December 2008 response from the National Personnel Record Center indicates that a search of records from WPAB for the calendar year 1984 concerning the Veteran was negative. Despite the foregoing, the Veteran provided a STR, dated in late June 1984, reflecting that she had been transferred from Fort Benjamin Harrison to WPAB for psychiatric evaluation. At that time, the Veteran gave a history of having marital problems and difficulties in school. She indicated that she was in the process of a divorce. She stated that her husband had told her that if she failed her physical fitness course, that she would lose custody of her children. The Veteran reported that she subsequently failed the course and was served divorce papers during one of her classes. She stated that after the above-cited incident, she went to see the base Chaplin [for counseling]. Upon admittance to WPAB, the Veteran indicated that she had been upset for the previous seven (7) weeks (i.e., since being stationed at Fort Benjamin Harrison). She was diagnosed with an adjustment disorder with mixed emotional features. The remainder of the STRs are devoid of any further subjective complaints or clinical findings of any further psychiatric pathology and for any gynecological-related disorders as a result of sexual trauma. Nor do they contain any evidence of physical trauma that would have been associated with the alleged in-service sexual assault (e.g., bruises, cuts, scrapes, or broken bones). The Veteran's service personnel records do not contain evidence of any behavioral changes in response to the claimed stressor. These same records reveal that the Veteran received a promotion from PFC to SP4 in April 1980. In August and December 1980, the Veteran graduated from the Noncommissioned Officers' Academy and received a certificate of Achievements for meritorious service during the period from February 15, 1979 to December 1, 1980 for her positive manner and outgoing personality in her performance as a mail clerk, respectively. In May and June 1984, coincident to the above-cited psychiatric hospitalization, the Veteran received counseling after she received two sub-standard test scores. In the case of a claim for service connection for PTSD based on non-combat stressors, such as the case here, the United States Court of Appeals for Veterans Claims (Court) has held that "credible supporting evidence" means that the Veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The VA Adjudication Manual M21-1 (M21-1) provides that the required "credible supporting evidence" of a non-combat stressor "may be obtained from" service records or "other sources." M21- 1, part VI, formerly 7.46. With regard to specific claims based upon personal assault, M21-1, part III, 5.14(c), provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred. Included among the sources are statements from confidants, such as fellow service members, and records that indicate behavioral changes that occurred at the time of the incident that may indicate the occurrence of an in- service stressor. In Patton v. West, 12 Vet App 272 (1999), the Court highlighted the importance of the RO to follow the more particularized requirements delineated in the M21-1 for personal- assault PTSD claims. The RO advised the Veteran of the Patton requirements via an August 2007 letter. The law provides that 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). Of particular relevance to this matter, 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). Post-service VA and private clinicians have diagnosed the Veteran with dysthymia secondary to PTSD, as well as a notation that some of her depressive symptoms overlapped with her PTSD. (See November 2006 VA PTSD examination report). The November 2006 VA examiner diagnosed the Veteran with PTSD, provided that that the military sexual trauma was confirmed. Id. The November 2006 VA examiner, as well as a private psychologist, Kathy H. Hedrick, PhD, both concluded that because they were not trained in interpreting military personnel records, that they were not experts and would not be able to know whether they indicated any behavioral markers toward military sexual trauma. (See November 2006 VA examination report and July 2007 report, prepared by Kathy H. Hedrick, PhD). A January 2009 VA outpatient report contains a diagnosis of PTSD from military sexual trauma (MST). Because of the November 2006 VA examiner's and private psychologist's inexperience in interpreting and evaluating personal military sexual trauma-type cases, the Board finds that such a VA examination is necessary before it may adjudicate the Veteran's claim for service connection for PTSD. 38 C.F.R. § 3.304(f). Regarding the secondary service connection claims on appeal, in its September 2008 remand directives, the Board instructed the RO to schedule the Veteran for VA orthopedic examinations to determine the etiology of any currently present right leg and low back disabilities found on examination, to include consideration of a secondary medical relationship between these claimed disorders and the service-connected status-post hysterectomy with bilateral salpingo-oophorectmey. The VA examiner was also requested to provide an opinion as to whether any self-described preexisting right leg disorder underwent permanent aggravation during military service. (See September 2008 Board remand, pages (pgs.) 7, 8). VA examiners examined the Veteran in March 2009. (See March 2009 VA orthopedic and spine examination reports). After a physical evaluation of the Veteran's right lower extremity and spine, the VA examiners opined that it was less likely than not that the Veteran's right leg disability (right hip arthralgia) and low back disability (lumbar strain) were related to her period of military service. The March 2009 VA examiners concluded that the Veteran's right hip arthralgia and lumbar strain were not "the result of" or "connected to" the service-connected hysterectomy with bilateral salpingo-oophorectomy, respectively. Neither examiner, however, discussed whether the above-cited service-connected disability had "chronically aggravated" any currently diagnosed right leg and low back disabilities, as directed by the Board in its September 2008 remand directives. In addition, the March 2009 VA orthopedic examiner failed to provide an opinion as to whether any pre-existing self-described right leg injury underwent aggravation during military service, also directed by the Board in September 2008. Based on the foregoing, the Board finds that the RO did not substantially comply with the mandates of its September 2008 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Therefore, the Board finds that re-examination of the Veteran is necessary in accordance with the directives, as described in the indented paragraphs below. Accordingly, 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, right leg and low back disorders 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 folders. Regarding her claim for service connection for PTSD, the RO/AMC will advise the Veteran that she may submit any further information towards substantiation of the claimed stressors, that is not presently of record. 2. After completion of the above, the AMC must schedule the Veteran for a comprehensive mental disorders examination, by a mental health care examiner or examiners who are qualified to render opinions as to whether, based upon the patient's reported and documented history, personal or sexual assault trauma occurred, in accordance with 38 C.F.R. §3.304(f). The following considerations will govern the examination: (a) The claims files, and a copy of this remand, will be reviewed by the examiner, who must acknowledge receipt and review of these materials in his or her examination report generated as a result of this remand. All necessary tests and studies should be conducted. The examiner must respond to the following questions/directives and provide a full statement of the basis for all conclusions reached. (b) The examiner must conduct an examination with consideration of the criteria for PTSD as specified in the applicable section of the current edition of the Diagnostic and Statistical Manual. The examiner should reconcile all psychiatric diagnoses documented in the Veteran's records and provide a current psychiatric diagnosis. The examiner must respond to the following inquiries: (i) After examination of all of the evidence of record, does the evidence indicate that a personal assault occurred, as alleged by the Veteran? and (ii) Does the Veteran have PTSD as a result of an in-service assault? (c) In formulating the requested opinion, the examiner must review and comment as to the medical significance, if any, of service treatment and personnel records, November 2006 VA examination report and July 2007 report, prepared by Kathy H. Hedrick, PhD, as reviewed above. (d) The examiner must identify the information on which his or her opinion is based, to specifically include, but not limited to, the evidence listed above. The opinion should adequately summarize the relevant history and clinical findings, and provide detailed explanations as to all medical conclusions rendered. The opinion should also allocate the Veteran's various symptoms and manifestations to the appropriate diagnostic entity. 3. The Veteran must be scheduled for a VA orthopedic examination to determine the etiology of any current right leg and low back disorders. The following considerations will govern the examination: (a) The claims files, and a copy of this remand, will be reviewed by the examiner, who must acknowledge receipt and review of these materials in his or her examination report generated as a result of this remand. All necessary tests and studies should be conducted. The examiner must respond to the following questions/directives and provide a full statement of the basis for all conclusions reached. review. (i) Is it at least as likely as not (e.g., a 50 percent or greater probability) that any currently diagnosed right hip arthralgia and lumbar strain were aggravated (made permanently worse) by the service-connected status-post hysterectomy with bilateral salpingo-oophorectomy? In formulating his or her response to this question, the examiner must specifically noted the consideration of the May 2005 private physicians' report, wherein it was indicated that the due to a prior complete hysterectomy, the Veteran had developed osteoporosis with various bone and joint problem, as well as VA March 2009 VA spine and orthopedic examination reports; and ii) Did the Veteran's self-described preexisting right leg injury undergo aggravation beyond its normal progression during military service, resulting in development of the current right leg disability? 4. To help avoid future remand, the RO/AMC must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the claims files must be reviewed to ensure that all of the foregoing requested development has been completed. Then, the claims for service connection for PTSD, right leg disorder and low back strain, both to include as secondary to status-post hysterectomy with bilateral salpingo-oophorectomy must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case, and an adequate time to respond. Thereafter, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2008). _________________________________________________ A. C. MACKENZIE 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).