Citation Nr: 1104184 Decision Date: 02/02/11 Archive Date: 02/14/11 DOCKET NO. 07-07 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fleming, Associate Counsel INTRODUCTION The Veteran had active military service from July 18 to September 20, 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, that denied the Veteran's claim of service connection for posttraumatic stress disorder. In this instance, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has recently held that, although an appellant's claim identified posttraumatic stress disorder without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim of service connection for any mental disability that may reasonably be encompassed by several factors-including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court reasoned that the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the Veteran filed his claim seeking service connection for posttraumatic stress disorder specifically, the Board notes that the Veteran has been diagnosed with and sought treatment for additional acquired psychiatric disorders, including a dysthymic disorder. The Board thus finds that, pursuant to Clemons, supra, the Veteran's service connection claim is more accurately classified as one for an acquired psychiatric disorder, to include posttraumatic stress disorder. See Clemons, 23 Vet. App. 1 (2009). REMAND The Board finds that additional evidentiary development is necessary before a decision can be reached on the merits of the Veteran's claim. At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2010). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board recognizes that the present case, which involves allegations of a personal assault (the alleged sexual assault of the Veteran by three men while he was on sentry duty in August 1974), falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events about which the Veteran complains. See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999). As noted under Part IV, Subpart ii, Chapter 1, Section D, Paragraph 17 of the VA Adjudication Procedures Manual Rewrite (M21-1 MR), personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking. Id. Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault. See YR v. West, 11 Vet. App. 393, 399 (1998). The Manual also notes that because personal assault can be an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, making it difficult to obtain direct evidence and requiring that alternative evidence be sought. (Nevertheless, the Veteran in this case has indicated that he in fact reported the assault to authorities.) Likewise, under 38 C.F.R. § 3.304(f)(4), 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; 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. The Board notes that § 3.304(f)(4) also stipulates that 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. In this case, a review of the record reflects that the Veteran has not been apprised of 38 C.F.R. § 3.304(f)(4) or that evidence from other sources could help corroborate the claimed in-service personal assault stressor, nor has he been provided a list of those alternative sources from which he could submit evidence to help substantiate the stressor incident. As such, the agency of original jurisdiction (AOJ) must further develop the Veteran's claim in accordance with those special alternative evidentiary development procedures associated with personal assault claims as noted in 38 C.F.R. § 3.304(f)(4) and the M21-1 MR, Part IV, Subpart ii, Chapter 1, Section D, Paragraph 17. Thus, the Board finds action is required to satisfy the notification provisions of the VCAA. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim; those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the appellant's service and the disability; (4) degree of disability; and (5) effective date of the award). After providing the required notice, the AOJ must again attempt to obtain any pertinent outstanding evidence for which the Veteran provides sufficient information and, if necessary, authorization. See 38 U.S.C.A. § 5103A(a), (g); 38 C.F.R. § 3.159. See also Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record further indicates that the Veteran has informed VA on multiple occasions that he has received private psychiatric treatment at the Menard Psychiatric Center in Menard, Illinois. He has further provided consent for VA to obtain records of these treatment, which the RO attempted to obtain, most recently in May 2008. The Board acknowledges that, to date, the treatment center has failed to respond to the RO's requests for records. However, as noted above, VA is required by the VCAA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim, to include relevant records from both Federal and private sources. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1). This includes contacting private providers until it is certain that no further efforts will result in the records being obtained. The Board does not find that such a point has yet been reached. Therefore, as the identified treatment records may have a bearing on the Veteran's claim, the AOJ must again request consent from the Veteran to seek any available records and must then attempt to obtain any examination or treatment records from the identified private care provider and associate them with the claims file. Regarding the Veteran's claimed in-service stressor, the Board notes that the Veteran has stated on multiple occasions to VA that his current claimed PTSD is related to an incident in service in which he was sexually assaulted in August 1974 by three men who attacked him while he was on sentry duty. The Veteran has further claimed that this attack traumatized him and led to his September 1974 discharge from the military for reasons of "inaptitude," which discharge is documented in his service personnel records. Credible supporting evidence that a claimed in-service stressor occurred is important in light of the specific elements necessary to substantiate a service connection claim for PTSD compared to other psychiatric disorders. See 38 C.F.R. § 3.304(f) (2010). Under the circumstances of this case, the Board believes that additional effort should be undertaken to allow the Veteran to submit any corroborating evidence, to include supportive statements from other individual(s) who may be able to provide corroborative evidence of the Veteran's claimed personal assault stressor. Therefore, on remand, the AOJ must search for other evidence corroborating the assault. Furthermore, as instructed in the remand, the Veteran must be notified if the search for corroborating information leads to negative results. Although the Veteran has been examined for compensation purposes with regard to the claim of service connection for PTSD, a specific medical analysis of the implied claims of service connection for other psychiatric disease has not been undertaken. The Board therefore finds it necessary to secure a new examination to ascertain not only whether the Veteran in fact has PTSD that is a result of an in-service stressor, but to determine whether he suffers from any other acquired psychiatric disorder related to service. Thus, on remand, the Veteran must be afforded a VA examination in order to obtain a current diagnosis based on both examination and a thorough review of his claims file. Specifically, the Veteran must be afforded a psychiatric evaluation by a VA or VA- contracted psychiatrist or psychologist, to include particular attention to the diagnoses made as a result of VAMC treatment. In the report, the examiner must address the relationship between any diagnosed PTSD and the Veteran's claimed in-service stressor and must specifically discuss whether the identified stressor is adequate to support a diagnosis of PTSD, and whether his symptoms are related to the identified stressor. Further, under Clemons, supra, the designated examiner must provide a medical nexus opinion with respect to any other identified acquired psychiatric disorder. The opinion must address whether the Veteran has an acquired psychiatric disorder that is attributable to his active military service. Such an opinion is also important in view of the evidence contained in the Veteran's post-service treatment records that suggests that he also has a diagnosis of dysthymic disorder. In view of the foregoing, the case is REMANDED for the following action: 1. The Veteran and his representative must be sent a letter requesting that the Veteran provide sufficient information, and if necessary authorization, to enable any additional pertinent evidence not currently of record to be obtained. The Veteran should also be invited to submit any pertinent evidence in his possession. The AOJ must explain the type of evidence that is the Veteran's ultimate responsibility to submit. In addition, the AOJ must send the Veteran a corrective VCAA notice that explains specifically what evidence and information is required to substantiate a claim of service connection for PTSD based on a claim of in-service personal assault. See 38 C.F.R. § 3.159 (2010). The Veteran must be specifically told of the information or evidence he should submit and of the information or evidence that VA will obtain with respect to his claim of service connection for PTSD. The Veteran must be specifically notified that an alleged personal assault in service may be corroborated by evidence from sources other than his service records, as defined in 38 C.F.R. § 3.304(f)(4). (All specific examples of alternative sources of evidence listed in this regulation must be included in the notification letter.) 2. The Veteran's claim for service connection for PTSD must be further developed in accordance with those special alternative evidentiary development procedures associated with personal assault claims as noted in 38 C.F.R. § 3.304(f)(4) and the VA Adjudication Procedures Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Chapter 1, Section D, Paragraph 17. In this respect, a request must be made to the Veteran, with a copy to his representative, that he provide as much detail as possible regarding the alleged sexual assault, to include any other evidence corroborating the incident. He should be asked to specifically identify the authorities to whom he reported the incident. The Veteran must also be invited to submit statements from former service comrades or others who might help establish the occurrence of his alleged personal assault. A letter must be prepared asking the service department to provide any available information that might corroborate the Veteran's alleged in-service personal assault stressor. Specifically, any unit records showing that the Veteran reported the incident to a commander or other authority should be sought. All lay statements or investigative reports maintained by the service department relating to the Veteran should be sought. Any additional action necessary for independent verification of the alleged personal assault stressor must be accomplished. If the search for corroborating information leads to negative results, this must be documented in the claims file. Then, the Veteran must be notified of this fact, of the efforts taken to obtain the information, and of any further action to be taken. 3. The AOJ must obtain from the Veteran's private care provider, and any other provider identified by the Veteran, any available medical records pertaining to the Veteran's examination or treatment with the treatment provider(s) at any time since his separation from active duty, to include in particular treatment records from the Menard Psychiatric Center in Menard, Illinois. The AOJ must request that a negative response be returned if no such records are available. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159(c) (2010) as regards requesting records. All records and/or responses received must be associated with the claims file. The Veteran should be given opportunity to provide the records. 4. After associating with the claims file all available records and/or responses received pursuant to the above-requested development, the Veteran must be scheduled for VA examination and notified that failure to report to any scheduled examination, without good cause, could result in a denial of his claim. See 38 C.F.R. § 3.655(b) (2010). All examiner(s) must thoroughly review the Veteran's claims file, to include a copy of this remand. Psychological testing must be conducted with a view toward determining whether the Veteran in fact meets the criteria for a diagnosis of PTSD. A VA or VA-contracted psychiatrist or psychologist must review the Veteran' claims file and test results, examine the Veteran, and provide an opinion as to whether the Veteran has symptomatology that meets the diagnostic criteria for PTSD. The examiner must identify the specific stressor underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor. In the report, the examiner must address the relationship between any diagnosed PTSD and the Veteran's in-service stressor and must specifically address whether the identified stressor is adequate to support a diagnosis of PTSD; and whether his symptoms are related to any identified stressor. A complete rationale must be provided for all opinions expressed. In addition to an opinion regarding PTSD, the examiner must provide an opinion as to the medical probabilities that each diagnosed disease process other than PTSD is attributable to the Veteran's period of military service from July to September 1974. All opinions must be set forth in detail and explained in the context of the record. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the claim on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. The Veteran 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).