Citation Nr: 1126815 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 09-23 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from January 1979 to July 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 decision rendered by the Detroit, Michigan Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2007, the appellant asked for reconsideration of that decision. Despite the fact that the appellant's request was received within one year of the RO decision, the RO treated her request as a petition to reopen service connection for PTSD. Thereafter, in February 2008, the RO issued a decision reopening the claim and denying it on the merits. The Veteran disagreed with that determination as well. The Board finds that the June 2007 correspondence from the Veteran constitutes a timely notice of disagreement to the May 2007 RO decision. Hence, although the RO has listed the February 2008 decision as being on appeal, the Board finds that the May 2007 decision is the proper decision on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Board finds that additional development is warranted prior to issuing a decision in this matter. The Veteran contends that she has PTSD due to military sexual trauma and personal assault. Here, the Veteran underwent a VA examination in March 2007. The examiner noted that the Veteran experienced stressful experiences both during service and following discharge from service. For instance, she reported that during service she was raped by an enlisted man, coerced into having sex with her sergeant, and got into a physical altercation with her then-husband. In terms of current symptoms, she described difficulty sleeping and intrusive thoughts about events during service. She also described difficulty with five marriages after service, being involved in multiple affairs, and having significant problems at work, including being criminally charged with sexual conduct with a minor when working as a social worker. Following a mental status examination, the Axis I diagnosis was PTSD. In describing the etiology of PTSD, the examiner remarked: The patient had a lot of sexual assaults while she was in the service, and, of course, she had inappropriate sexual things happen to her after she was out of the service, and she had five marriages and five divorces, and she lost her license as a social worker, and she is going through legal problems. In my opinion, I have to conclude that she has symptoms of PTSD but I cannot conclude one way or the other whether it has a relation to the things that happened to her, because things happened after she came out of service that may cause post-traumatic stress disorder. Also of record is a May 2007 VA psychological evaluation. Significantly, it notes that the despite the fact that the Veteran recently pled nolo contendere to having sexual contact with a minor, the examiner opined that she was likely the victim, rather than the perpetrator of the sexual contact. While there is reference in the report to the in-service stressors, no opinion was rendered as to the most likely etiology of PTSD. Rather, the examiner only noted that PTSD was "likely to be attributed to her previous (i.e., neglectful and abusive) life history." Once VA undertakes the effort to provide an examination for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Daves v. Nicholson, 21 Vet. App. 46 (2007); Cf. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). With respect to medical examinations, the Court has held that "a medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Court has also indicated that in evaluating the medical opinion evidence, (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert witness has applied the principles and methods reliably to the facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Court recently stated that before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Jones v. Shinseki, 23 Vet. App. 382 (2010). The Board acknowledges that there are cases when an examiner is unable to render a medical opinion due to limits to the most current medical knowledge. Here, however, the March 2007 VA examiner has pointed to facts that make it difficult to render an opinion. By stating, however, that it cannot state "one way or the other" whether PTSD is related to service, Board finds that the examiner's opinion is speculative and the Board may not rely on it in making a decision on the claim. Hence, this matter must be remanded for a supplemental opinion. While this matter is being remanded for a supplemental opinion, the appellant is informed that in PTSD cases in which the Veteran asserts personal assault as the in-service stressor, VA has provided for special evidentiary-development procedures, including interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis. See Patton v. West, 12 Vet. App. 272, 280 (1999). Specifically, in claims concerning in-service personal assault, alternative forms of evidence (i.e., evidence other than service records) may be used to corroborate the Veteran's account of an in-service assault. Examples of such evidence include records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted disease; statements from family members, roommates, fellow service-members, or clergy; evidence of behavioral changes following the claimed assault, such as a request for a transfer to another military occupational specialty (MOS) or duty assignment, deterioration in work performance, substance abuse, unexplained economic or social behavior changes, or episodes of depression, panic attacks, or anxiety without an identifiable cause. See 38 C.F.R. § 3.304(f)(5); see also Gallegos v. Peake, 22 Vet. App. 329 (2008). Here, on remand, the appellant is invited to identify or submit any evidence that would help to corroborate her contention that the in-service stressors occurred. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The RO/AMC should return the claims file to the examiner who conducted the March 2007 VA PTSD examination, or if the examiner is unavailable, to another examiner. Following a review of this remand directive, and after any further review of the Veteran's claims file, the examiner should render an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or better) that (1) any PTSD stressors occurred during active duty service and (2) whether currently diagnosed PTSD is due to or the result of the Veteran's active military service. The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. 2. After the development requested has been completed, the RO/AMC must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 3. After completing the requested actions and any additional notification and/or development action deemed warranted, the RO/AMC must readjudicate the claim of entitlement to service connection for PTSD. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and her representative a supplemental statement of the case and afford them an opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate 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. 2010). _________________________________________________ DAVID L. WIGHT 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).