Citation Nr: 1123697 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 09-47 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1968, and had a period of active duty for training (ACDUTRA) from January 1980 to May 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. 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 she has PTSD as a result of in-service military sexual trauma. Her claim is remanded to enable the RO, through the AMC, to develop the service connection claim under 38 C.F.R. § 3.304(f)(3) pertaining to in-service personal assault. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). The VA has a heightened burden of VCAA notification for claims of service connection for PTSD based on in-service personal assault. See Gallegos v. Peake, 22 Vet. App. 329 (2008). 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. The Veteran should also be allowed the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f). In fact, in Bradford v. Nicholson, 20 Vet. App. 200 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.304(f) "unequivocally" provides that VA cannot deny a PTSD claim without first providing the requisite notice discussed above. See also Patton v. West, 12 Vet. App. 272, 281-82 (1999) (noting that the RO must send the claimant a "special PTSD personal-assault letter" and questionnaire to assist VA in identifying alternative sources of evidence to establish an in-service stressor). The November 2006 VCAA letter sent to the Veteran by the RO did not meet the heightened burden for VCAA notification for service connection for PTSD based on personal assault. Therefore, the RO must provide the requisite notice on remand. Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Generally, the occurrence of an event alleged as the "stressor" upon which a PTSD diagnosis is based (as opposed to the sufficiency of the alleged event to cause PTSD) is an adjudicative determination, not a medical determination. See Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993). If a PTSD claim is based on an 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. 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 him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. However, regardless of the factual adjudication of the occurrence of an assault, 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. See Gallegos v. Peake, 22 Vet. App. 329 (2008); Patton v. West, 12 Vet. App. 272, 276 (1999); 38 C.F.R. § 3.304(f). In this case, correspondence dated December 2006, from Marcia Stern, Ph.D., the Military Sexual Trauma Counselor at the Harlem Veterans' Center (Vet Center), shows the Veteran sought treatment for military sexual trauma. Additionally, the most recent medical evidence of record is a March 2008 VA psychiatry emergency room note, which indicated the Veteran should be evaluated for possible PTSD. There is insufficient evidence on file to make a determination on the claims. Therefore, a remand is necessary to afford the Veteran a VA examination to determine whether service connection can be granted under 38 C.F.R. § 3.304 (2010). The Veteran has (1) provided specific details as to how she was allegedly raped; (2) reported the name of her alleged assailant and; (3) further stated that she consulted a military chaplain within days following the assault. However, she has apparently not been asked if she provided any witness statement; or testified at any proceeding under Article 32 of the Uniform Code of Military Justice (mandating pre-trial hearing proceedings in General Courts-Martial proceedings) or testified at any courts-martial action against her assailant. Given these factors, further factual investigation will be conducted. Accordingly, the case is REMANDED for the following action: 1. 1. The RO/AMC must: a. Ask the Veteran to identify all records of VA and non-VA health care providers who have provided any psychiatric treatment. After obtaining any appropriate authorizations for release of medical information, the RO/AMC must obtain relevant and previously unobtained records from each health care provider the Veteran identifies. b. Advise the Veteran that with respect to private medical evidence, she may alternatively obtain the records on her own and submit them to the RO/AMC. The records sought must include any relevant records of VA or private treatment created or updated after the most recent medical evidence associated with the claims folder from May 2008. c. Advise the Veteran that, to substantiate a claim for entitlement to service connection for PTSD due to an in-service assault, she may submit evidence of a decline in performance of duty, appearance or behavior changes, suggestive of in-service personal assault, from sources other than her service medical records, including lay evidence of behavior changes, outside medical treatment, police records, and military personnel records. d. Advise the Veteran that she must provide all relevant details of the alleged assault, including date, time, location, her unit, the name of her assailant, whether the Veteran provided a witness statement to military police authorities, and whether she testified at an Article 32 investigation or court-martial. e. Allow the Veteran the opportunity to furnish any additional evidence to substantiate his claim. The RO/AMC must attempt to verify any information the Veteran provides or obtain any records she identifies regarding an in-service military assault. This includes obtaining the Veteran's complete service personnel records, contacting military authorities and any other appropriate record depositories where such records may be maintained and if appropriate, contacting military authorities to ascertain if there are any records of courts-martial or other proceedings which may substantiate the Veteran's allegation. 2. After waiting an appropriate time period for the Veteran to respond and for all records to be collected, the RO/AMC must schedule the Veteran for a VA examination by a clinician with appropriate expertise in mental health. The purpose of the examination is to determine whether any current PTSD is related to any incident of service, to include an in-service assault, specifically military sexual trauma. The following considerations must govern the examination: a. The claims file and a copy of this remand must be made available to the clinician, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. b. The clinician must review all medical and lay evidence of record. In particular, the Board calls the clinician's attention to: (1) a January 2007 VA psychiatry outpatient treatment record in which the Veteran reported she was raped while on active duty at Fort Leonardwood in Mississippi, and the attending psychiatrist's opinion that the Veteran did not appear to meet the criteria for PTSD; and (2) a March 2008 VA psychiatry emergency department note which indicated a history of childhood sexual trauma, military sexual trauma, and possible PTSD. c. The clinician must consider the Veteran's lay testimony regarding her symptomatology during and since service and determine and note in his or her report whether there is a medical basis for discounting the credibility or reliability of the history provided by the Veteran. d. Regardless of whether factual corroboration for the Veteran's account has been obtained, the examiner must respond to the inquiry as to whether the Veteran's account, as well as all other evidence of record indicates that the Veteran sustained a personal assault as she has alleged. e. If deemed appropriate by the clinician, the Veteran must be scheduled for further examinations. All indicated tests and studies must be performed. f. The clinician must provide a diagnosis for each mental health condition found from considering the claims file and from examining the Veteran. g. For each condition diagnosed, the clinician must specifically opine whether that condition began during service, was chronically worsened during service, or is related to any incident of service, to include in-service military sexual trauma. h. In reaching this determination, the clinician must report as to whether psychiatric symptoms shown during or within one year of service, or shortly thereafter may be identified as a manifestation or "prodromal" aspect of any later-diagnosed psychotic disorder. 38 C.F.R. § 3.307(c). i. In all conclusions, the clinician must identify and explain the medical bases of his or her opinion with reference to the claims file. If the clinician is unable to render the requested opinions without resort to speculation, he or she must so state; however, a complete rationale for such a finding must be provided. 3. The RO/AMC must readjudicate the claim for entitlement to service connection for PTSD. If the benefit sought remains denied, the RO/AMC must provide the Veteran and her representative with a supplemental statement of the case and an appropriate period of time for response. 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). The Veteran is hereby notified that it is her responsibility to report for any examination and to cooperate in the development of the claim. The consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). 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 sent notice was returned as undeliverable. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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. 2010). _________________________________________________ Vito A. Clementi 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).