Citation Nr: 1039905 Decision Date: 10/25/10 Archive Date: 11/01/10 DOCKET NO. 06-32 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February and March 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York that denied the Veteran's application to reopen a previously denied claim of service connection for PTSD and denied entitlement to service connection for PTSD. A May 2008 Board decision reopened the claim and remanded it for additional development. The Veteran testified at a hearing before the Board in October 2007. As the Board is obligated to construe a claim for an acquired psychiatric disorder liberally, the claim for PTSD has been recharacterized as it appears on the cover page of the instant decision. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND A review of the claims file reveals that a remand is once again necessary before a decision on the merits of the claim can be reached. Service connection for PTSD requires that there be medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2009); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2009). In addition, in cases involving claims of personal assault, evidence from sources other than the appellant's service records may corroborate the Veteran's account of the stressor incident. 38 C.F.R. § 3.304(f)(3) (2009). The Veteran contends that he suffers from PTSD as a result of a sexual assault which occurred while he was in service. He indicated that he did not report the incident but he sought treatment for hemorrhoids following the incident. The Veteran has not been sent the necessary notice, in compliance with 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b), that relates directly to his claim for service connection for PTSD. The Board notes that the RO generally advised the Veteran of the evidence/information required to substantiate a claim for entitlement to service connection. However, the Veteran should be specifically informed of the type of information or evidence necessary to substantiate a claim of service connection for PTSD, as well as which evidence VA would seek to provide and which information or evidence the Veteran was to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This is especially important in claims of service connection for PTSD based on personal assault. Notice of the kind of evidence that might corroborate the occurrence of a personal assault as noted in 38 C.F.R. § 3.304(f)(3) (2009) should be provided. The Veteran's service treatment reports do not include any complaints, findings, or treatment for any psychiatric disorders. The private and VA treatment records since service include various psychiatric diagnoses including PTSD, major depression, major depressive disorder, and chronic adjustment disorder with depression. Several of the Veteran's counselors have indicated that the Veteran's diagnoses are related to a military sexual trauma. In order to properly assess the Veteran's claim, a VA psychological examination should be accomplished. Accordingly, the case is REMANDED for the following action: 1. Review the claims file and ensure that all notification actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2009) are fully complied with and satisfied. See also 38 C.F.R. § 3.159 (2009). Specifically, the Veteran should be told to submit detailed information regarding his claimed in-service stressor, including the dates, times, and location of the claimed stressor, and the parties involved. 38 U.S.C.A. § 5103(a) (West 2002). In addition, the Veteran should be informed that in cases involving personal assault, evidence from sources other than the service records may corroborate the Veteran's account of the stressor incident(s). 38 C.F.R. § 3.304(f)(3) (2009). He should be instructed regarding the specific types of evidence that may be used to corroborate personal assault. Id. 2. After completion of the above action, the Veteran should be afforded a VA psychological examination. A review of the claims file should be accomplished. Prior to the interview, all indicated studies, tests and evaluations deemed necessary should be performed, but should specifically include psychological testing, including tests to determine whether the Veteran in fact now experiences PTSD. (The examiner is advised that the Veteran received various diagnoses including PTSD, major depression, major depressive disorder, and chronic adjustment disorder with depression.) The examiner should also determine whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should comment upon the link between the current symptomatology and any in-service stressor reported by the Veteran. Consideration should be given to evidence that might tend to support or corroborate the occurrence of a personal assault, such as evidence of behavioral changes, etc. 38 C.F.R. § 3.304(f)(3). (If the examiner concludes that an in-service personal assault led to the development of PTSD, the evidence relied on to conclude that the assault occurred should be specifically noted.) If another diagnosis is deemed appropriate the examiner should specifically indicate whether the diagnosis is more likely than not (greater than 50 percent) related to the Veteran's military service. The examiner should reconcile his/her opinion with the other medical opinions of record. The report of examination should include a complete rationale for all opinions expressed. 3. After undertaking any other development deemed appropriate, re- adjudicate the issue on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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. 2009). _________________________________________________ KELLI A. KORDICH 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).