Citation Nr: 1136476 Decision Date: 09/28/11 Archive Date: 10/11/11 DOCKET NO. 09-50 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant, Spouse ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from December 1971 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the above claim. In November 2009, the Veteran was afforded a personal hearing before a hearing officer at the RO and in May 2011, the Veteran was afforded a personal hearing before the undersigned. Transcripts of the hearings are of record. Broadly construing the Veteran's contentions as having a psychiatric disorder related to service, and given the findings of record, which include diagnoses of bipolar disorder and PTSD, the Board has recharacterized the Veteran's claim as above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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 has been diagnosed as having PTSD related to his experiences in service as well as childhood abuse. During the November 2009 and May 2011 hearings, the Veteran claimed that he feared for his life during Marine Corp training when he saw a young man being choked unconscious during choke-hold training and being choked unconscious himself. The Veteran also reported being forced to smoke cigarettes while wearing a bucket over his head making him dizzy. In a letter dated June 2008, VA psychologist stated that the Veteran had been treated by her since August 2007 and attributed his diagnosed PTSD to several traumatic incidents that occurred during boot camp. Because the Veteran's claimed stressors include allegations of a personal assault, development must be in accordance with that required for such. See Patton v. West, 12 Vet. App. 272 (1999). Although a VA psychologist attributed the Veteran's diagnosed PTSD to inservice stressors, the evidence of record does not show that the Veteran's claimed personal assaults has been confirmed or that attempts at verification have been made. VA will not deny a PTSD claim that is based on an inservice personal assault without first advising the claimant that evidence from sources other than 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. 38 C.F.R. § 3.304(f). In addition, the RO should verify that the Veteran's complete service personnel file is associated with the record. Thus additional due process compliance is needed. The record also shows that the Veteran psychiatric VA treatment in November 1999 during which he reported being molested and raped for many years as a child by men his father brought home. There was also extensive sexual molestation by his father and his sisters, who were also molested by their father. He reported being somewhat depressed since he was 8 years old. He was diagnosed as having bipolar disorder and PTSD from childhood trauma as well as personality disorder traits. During his VA psychiatric treatment in November 1999 and December 1999, the Veteran focused on his childhood trauma and only once reported an inservice stressor which was being forced to wear a bucket on his head and smoke cigarettes. The record is silent for subsequent psychiatric treatment until an August 2005 VA psychiatric evaluation. The Veteran reported being sexually abused when he was a child by a boy who had been abused by the Veteran's father. He stated that the molestation left him confused and wounded, but denied having current distress about it although he became tearful discussing it. He also reported being troubled by his basic training experiences when they were being trained to choke one another. His drill sergeant choked another man unconscious and was subsequently choked himself. The Veteran was diagnosed as having anxiety disorder and major depression by history. The psychologist stated that PTSD was also a possible diagnosis due to symptoms he struggled with, though a clear criterion A was not present as the Veteran did not focus on his childhood abuse and it was unclear whether his military experiences presented severe enough stressors. In January 2007, the Veteran was afforded a psychological evaluation relating to his claim for Social Security disability benefits. He reported being choked during basic training and being sexually molested at age 9 by a 16-year-old cousin. He was diagnosed as having bipolar disorder and PTSD as well as a personality disorder. During an August 2007 VA mental health assessment, the Veteran reported both childhood and inservice trauma of watching a man being choked and being choked himself, in addition to discovering the body of his nephew who committed suicide. The Veteran was diagnosed as having PTSD. Although the Veteran was diagnosed as having PTSD during psychiatric assessments, the only formal psychiatric evaluation of record dated August 2005 stated that is was questionable whether the Veteran did in fact have PTSD. In addition, the etiology of the Veteran's other diagnosed psychiatric disabilities is unclear as both his history of childhood abuse and inservice experiences were discussed. Therefore, the Board finds that an examination is necessary in this case to properly assess the Veteran's psychiatric condition and a medical opinion is necessary to determine if any acquired psychiatric disorder is related to or aggravated by service, including any confirmed stressor and addressing any pre-existing disorder. See 38 C.F.R. § 3.159 (c)(4); 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete service personnel and medical records from the National Personnel Records Center (NPRC) or other pertinent sources. Copies of any entry examination should be specifically requested; the report is not included in the treatment records already associated with the claims file. All efforts to obtain these records should be fully documented, and the NPRC and any other source contacted must provide a negative response if records are not available. The Veteran must be notified of the outcome of any search. 2. Ask the Veteran to identify potential alternative sources for supporting evidence of his alleged personal assaults in accordance to the M21-1MR Manual. See also 38 C.F.R. § 3.304(f). In particular, the Veteran should provide as much detailed information as possible including the dates, places, names of people present, and detailed descriptions of events. The Veteran should be asked to provide any additional information possible regarding personal assaults and to identify alternative sources for supporting evidence of such reports. The Veteran is advised that this information is necessary to obtain supportive evidence of the stressful events and that he must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. 3. Following the completion of the foregoing, request any supporting evidence from alternative sources identified by the Veteran and any additional alternative sources deemed appropriate, to include inquiry of the Joint Services Records Research Center (JSRRC), if the Veteran has provided sufficiently detailed information to make such a request feasible. If no inquiry of JSRRC is warranted, such should be noted in a memorandum to the file. 4. Following the above, make a specific determination, based upon the complete record, with respect to whether the Veteran was exposed to a stressor(s) in service, and if so, what was the nature of the specific stressor(s). In rendering this determination, attention is directed to the law cited in the discussion above. If official service records or alternative records discussed in the VA Adjudication Policy and Procedures Manual M21-1MR IV.ii.1.D corroborate the Veteran's allegations of stressors occurring, specify that information. If needed the Veteran's credibility should be addressed. Also, indicate whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors and if so should decide whether this evidence needs the interpretation by a clinician. See VA Adjudication Policy and Procedures Manual M21-1MR IV.ii.1.D.17. If it is determined that the record establishes the existence of a stressor or stressors, specify what stressor(s) was established by the record. In reaching this determination, address any credibility questions raised by the record. 5. Schedule the Veteran for a VA psychiatric examination for the purpose of ascertaining whether any currently diagnosed psychiatric disorder is etiologically related to his period service. The claims folder must be reviewed in conjunction with the examination. All indicated testing should be conducted. Prior to the examination, the AMC/RO must identify for the examiner any stressor or stressors that are established by the record. Based on the examination and review of the record, the examiner should answer the following questions: (a) Does the evidence of record clearly and unmistakably show that the Veteran had a psychiatric disorder that existed prior to his entry onto active duty? The examiner should specifically comment on the effects of his childhood abuse. (b) If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting psychiatric disorder was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The clear and unmistakable evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)). (c) If the answer to either (a) or (b) is no, and a diagnosis of PTSD is appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the evidence of record (whether by the AMC/RO or in the case of the alleged personal assault, in the examiner's opinion) was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors sufficient to produce PTSD. (d) If the answer to either (a) or (b) is no, and if the examination results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not (a 50 percent or greater probability) that any currently demonstrated psychiatric disorder, other than PTSD, is related to the Veteran's service. In offering these assessments, the examiner must acknowledge and comment on the lay evidence. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (CONTINUED ON NEXT PAGE) 6. Readjudicate the Veteran's claims on appeal, with application of all appropriate laws and regulations and consideration of any additional information obtained. If the decision with respect to the claims remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 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). 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). _________________________________________________ WILLIAM H. DONNELLY 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) (2010).