Citation Nr: 1124640 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 10-35 035 ) 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 Jebby Rasputnis, Associate Counsel INTRODUCTION The Appellant served on active duty for training from August 1983 to November 1983 with several subsequent years of reserve service until July 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by 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 After careful review of the record, the Board finds that a remand for additional development is necessary before proceeding to evaluate the merits of the Appellant's claim for service connection. The Appellant has claimed entitlement to service connection for PTSD based on alleged in-service personal assaults. VA treatment notes reveal a diagnosis of PTSD and observe that the Appellant is "dealing with sexual trauma." The Board observes that, with respect to the Appellant's reserve service, applicable laws and regulations permit service connection for disability resulting from disease or injury incurred in, or aggravated while, performing ACDUTRA or INACDUTRA. See 38 U.S.C.A. § 101(22), (24) (West 2002); 38 C.F.R. § 3.6 (2010). 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. The Appellant contends that she experienced two (2) personal assaults during training and reserve service. On her December 2008 claim form she stated that she experienced an assault in 1993. On a May 2009 statement she reported that she could not remember when the assaults occurred, but believed they took place in the 1990s and "93?." An April 2009 VA treatment note reflects that she reported the first assault occurred when she was 18 or 19. An August 2009 VA treatment note reflects that she reported an assault occurred in 1993 or 1994. Service personnel records reveal that she was recommended for discharge from the National Guard in September 1995 for concealment of an arrest record. Arrests were noted in the period from June 1993 to May 1995. A December 1995 evaluation report identifies the Appellant as a "very poor performer" and states that "in the beginning she accomplished tasks, but as of the last few months, can't count on her." A June 1998 transfer counseling form states that the Veteran has "problems [] too numerous and too personal to discuss here." VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the Appellant has been diagnosed with PTSD and her service personnel record reveals instances of behavior that may warrant further inquiry under 38 C.F.R. § 3.304(f)(3), a mental examination is warranted. Further, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to assist claimants with the evidentiary development of pending claims. The claims file reflects that the Appellant is in receipt of Social Security Administration (SSA) disability benefits. VA has a duty to obtain SSA records when they may be relevant (Voerth v. West, 13 Vet. App. 117, 121 (1999)) and a September 2009 VA treatment record reflects that the Appellant recounted "her trauma history" during her SSA benefit hearing. However, no SSA records have been associated with the claims file. Accordingly, the RO/AMC must contact the SSA and obtain, and associate with the claims file, copies of the Appellant's records regarding SSA benefits, including the complete medical records upon which any decision was based. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2) (2010). The appeal is therefore REMANDED to the RO/AMC for the following actions: 1. Afford the Appellant an additional opportunity to submit any information that is not evidenced by the current record. Gather any outstanding records of VA medical treatment. Provide the Appellant with the necessary authorizations for the release of any private treatment records not currently on file. Obtain these records and associate them with the claims folder. If unsuccessful in obtaining any medical records identified by the Appellant, inform her and provide her an opportunity to submit copies of the outstanding medical records. 2. Obtain from the SSA a copy of the evidence relied on in any decision regarding the Appellant's eligibility for disability benefits or eligibility for Supplemental Security Income (SSI) due to disability. The records must specifically include, but are not limited to, medical records and the SSA hearing transcript. Those records will be associated with the claims folder. If the records are unavailable, the RO/AMC must document the unavailability within the claims file and advise the Appellant so that she can submit any copies of such documents in her possession. 3. Schedule the Appellant for a VA examination at an appropriate location to determine whether she has PTSD as the result of her military service. The following considerations will govern the examination: a. The entire claims folder and a copy of this remand must be made available to the examiner in conjunction with the examination. The examiner must be advised that the absence of corroboration of the alleged personal assault is not determinative of it nonoccurrence, as applicable regulation 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. b. The examination report must reflect review of pertinent material in the claims folder. After reviewing the claims file and interviewing the Appellant, the examiner must determine whether or not she experiences any current mental health disorders. If so, the examiner must provide diagnoses thereof and an opinion as to whether any such disability is likely the direct result of an in-service personal assault as contended by the Appellant. c. The examiner must independently review the record for pertinent evidence, but his or her attention is called to the following: i. The December 1995 NCO evaluation report; ii. The December 1995 Recommendation for Discharge for Concealment of Arrest Record; iii. A March 1998 Department of Defense memorandum showing that the Appellant tested positive for marijuana; iv. A June 1998 transfer counseling form referring to the Appellant's problems as "too personal to discuss here;" v. The Appellant's May 2009 statements as to the alleged assaults; vi. VA treatment notes dated in April, June, and August 2009 reflecting a diagnosis of PTSD and the Appellant's reports of personal assault. d. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of pertinent evidence of record. If the examiner is unable to render an opinion without resort to speculation, he or she must explain why and so state. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail and correlated to a specific diagnosis. 4. After the above has been completed, review the claims file and ensure that all of the foregoing development actions have been conducted in full. If any development is incomplete, appropriate corrective action is to be implemented. Provide the Appellant and her representative a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition. The Appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Appellant is notified that it is his responsibility to report for any examinations 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 (2010). If the Appellant 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 Appellant 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. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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. 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).