Citation Nr: 1113022 Decision Date: 04/01/11 Archive Date: 04/13/11 DOCKET NO. 06-31 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD) based on claimed personal assaults. 2. Entitlement to service connection for acquired psychiatric disorders, including bipolar disorder; dissociative disorder; multiple personality disorder; major depressive disorder; depression; and schizoaffective disorder (hereafter "psychiatric disorders"). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, attorney ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran had active service from March 1974 to July 1974. This appeal to the Board of Veterans' Appeals (Board) is from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In his October 2006 substantive appeal (Form 9), the Veteran requested a Central Office hearing. In a January 2007 letter, he was notified that his hearing had been scheduled for March 27, 2007. In a subsequent March 2007 letter, the Veteran's representative stated that the Veteran was withdrawing his request for a hearing. 38 C.F.R. § 20.704(d) (2010). In July 2008, the Board denied the Veteran's claims of entitlement to service connection for post-traumatic stress disorder (PTSD) based on claimed personal assaults and entitlement to service connection for psychiatric disorders. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an August 2010 memorandum decision, the Court vacated the Board's decision. The matter is now presented for the Board's further consideration. 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 In a memorandum decision, the Court vacated the Board's July 2008 denial of the Veteran's claims. That Board decision found, in part, that the evidence of record was insufficient to merit a VA examination in order to determine whether the Veteran's claimed PTSD or another psychiatric disorder could be related to service. In this regard, the Board notes that a VA examination or opinion is deemed necessary if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service- connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). Upon further review, the Board finds that a VA psychiatric examination is warranted in order to determine the etiology of the Veteran's psychiatric disorders. The Veteran contends that he has PTSD as a result of an in-service personal assault. Regarding this matter, it is noted that the Veteran's service treatment records show no reports of abnormal psychiatric findings or any documentation of such an assault taking place. As noted in the Board's July 2008 decision, in cases of personal assault, evidence from sources other than 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; 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. Patton v. West, 12 Vet. App. 272 (1999) See also YR v. West, 11 Vet. App. 393, 398-99 (1998). Moreover, the regulation provides that evidence of behavior changes following the claimed assault is one type of relevant evidence that may constitute credible evidence of the stressor. Such evidence includes, but is 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 regulation specifically provides 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. 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. 38 C.F.R. § 3.304(f)(3). While the Veteran's service treatment notes do not provide a specific diagnosis of a psychiatric disorder or any incident of personal assault, records do demonstrate that from May 13, 1974 to June 11, 1974, the Veteran was absent without leave (AWOL). Upon returning to the unit in June 1974, the Veteran was subsequently discharged from the military having been found to be wholly unwilling to participate in his service. In a May 2005 statement, the Veteran stated that he was treated at Fort Leonard Wood following the personal assault, but the whole matter was hushed because these things were not talked about during this time. He explained that he never talked to a private physician about the personal assault. The Veteran presently carries diagnoses of PTSD and several additional psychiatric disorders. He asserts that his service was the cause of these disorders. The Veteran is competent to testify to having experienced the difficulties mentioned during the many years since he was in the military. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). But by the same token, he does not have the required medical training and expertise to determine that his psychiatric disorders to include PTSD are a consequence of his claimed personal assault in the military. See 38 C.F.R. § 3.159(a)(1) and (2). In the same respect, however much as the Veteran is not found to be competent to render a medical opinion as to the etiology of his psychiatric disorders, neither is the Board a medical expert that may render such an opinion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (when the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.) In this case, determining whether there is a connection between the Veteran's psychiatric disorders and his service is greatly complicated by a number of factors to include the Veteran's extensively documented alcohol and drug abuse and his history of sexual abuse prior to service. The Board finds that a VA examination is necessary so that a medical opinion may be sought, in light of the Veteran's complicated history, as to the etiology of the Veteran's PTSD and other psychiatric disorders. Accordingly, the case is REMANDED for the following action: 1. After securing the necessary authorization, the RO/AMC should obtain any records identified by the Veteran which are not duplicates of those already contained in the claims file. 2. The RO/AMC should schedule the Veteran for a VA psychiatric examination to determine the nature of any current psychiatric disorder and to provide an opinion as to its possible relationship to service. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should provide a diagnosis for all psychiatric disorders identified. Regarding the Veteran's claim that he was personally assaulted during service, the examiner should provide an opinion as to whether the Veteran has PTSD due to the this claimed in-service stressor. In so doing, the examiner should specifically note whether the Veteran's period of absence without leave is indicative of a personal assault With respect to each psychiatric disorder diagnosed, the examiner should provide an opinion as to whether the disorder clearly and unmistakably existed prior to service and, if so, clearly and unmistakably underwent no permanent increase in severity beyond normal progression during or as a result of service. In this regard, the examiner should specifically address the Veteran's present psychiatric symptoms in relation to his reported history pre-service abuse and his history of drug and alcohol abuse. With respect to any psychiatric disorder which the examiner believes did not pre-exist active service, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the disorder arose during service or is otherwise related to the Veteran's military service. All tests deemed necessary, including psychological testing, should be performed and all findings should be reported in detail. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. The VA Medical Center should place a copy of the examination notification letter to the Veteran in the claims file prior to returning it to the RO/AMC. 3. Following the completion of the above, the RO/AMC should review the evidence and determine whether the Veteran's claims may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. 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). _________________________________________________ MICHAEL MARTIN 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).