Citation Nr: 1114023 Decision Date: 04/08/11 Archive Date: 04/15/11 DOCKET NO. 07-05 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder ("PTSD") and bipolar disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1987 to October 1988. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a July 2005 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Phoenix, Arizona, which denied the Veteran's claim of entitlement to service connection for PTSD. Jurisdiction has since been transferred to the Sioux Falls, South Dakota, RO. In October 2006, the Veteran testified during a video conference hearing before a Decision Review Officer located at the Sioux Falls RO. A transcript of the hearing has been associated with the Veteran's claims folder. The record reflects that the Veteran subsequently requested a Travel Board hearing, but, in September 2007, withdrew her request. See 38 C.F.R. § 20.702(e) (2010). In July 2009, the Board remanded the appellant's claim for additional development, specifically, to attempt to obtain additional information concerning the Veteran's reported arrests for driving while under the influence of alcohol ("DUI") and to obtain a VA examination and opinion regarding whether she had a current diagnosis of PTSD, and if so, whether it was based on her claimed stressors. This was accomplished, and in November 2010, the VA Appeals Management Center ("AMC") issued a Supplemental Statement of the Case, in which it continued to deny the appellant's claim. The claims folder has been returned to the Board for further appellate proceedings. The Board notes that, although the Veteran's claim was previously adjudicated solely as one of entitlement to service connection for PTSD, the United States Court of Appeals for Veterans Claims ("Court") has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the issue on appeal has been recharacterized and broadened to encompass all theories of entitlement. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the appellant if further action is required on her part. REMAND The Veteran claims entitlement to service connection for PTSD, which she states is the result of in-service sexual assaults and sexual harassment. After a thorough review of the claims folder, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the claim. With certain exceptions, service connection for PTSD specifically requires (1) medical evidence establishing a diagnosis of the disability, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2010). See also Cohen v. Brown, 10 Vet. App. 128 (1997). If a PTSD claim is based on military sexual trauma ("MST") or an in-service personal assault, evidence from sources other than the claimant's service records may corroborate his or her account of the stressor incident. 38 C.F.R. § 3.304(f)(4) (2010). Examples of such evidence include, but are not limited to the following: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians, and statements from family members, roommates, fellow service members, or clergy. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavioral changes that may constitute credible evidence of the stressor include, but are not limited to the following: 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)(4); see Patton v. West, 12 Vet. App. 272 (1999) (holding that special VA Adjudication Procedure Manual evidentiary procedures apply in PTSD personal assault cases). In March 2010, the Veteran was afforded a VA examination to determine if she had a current diagnosis of PTSD or another acquired psychiatric disorder, and an opinion as to the etiology of such disorder(s). Review of the examination report shows that the Veteran reported that she first began to experience mental health problems during early adolescence. The VA examiner concluded that she did not have PTSD, but rather diagnosed her with bipolar disorder that he opined pre-existed service and had been aggravated by service. See VA examination addendum, August 2010. In this respect, the Board notes that every veteran who served in the active military, naval, or air service after December 31, 1946 is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). Only those conditions recorded in examination reports can be considered as "noted" (38 C.F.R. § 3.304(b) (2010)), and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. Id. § 3.304(b)(1). Determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion (see Miller v. West, 11 Vet. App. 345, 348 (1998)), or a later medical opinion based upon statements made by the Veteran about the pre-service history of his/her condition. Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000). To rebut the presumption of soundness for conditions not noted at entrance into service, VA must show by both clear and unmistakable (obvious and manifest) evidence that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005); Wagner v. Principi¸ 379 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2010). Temporary or intermittent flare-ups of a pre-existing injury or disease during service are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. See Hunt v. Derwinski, 1 Vet. App. 292 (1991); Beverly v. Brown, 9 Vet. App. 402 (1996). If the presumption of soundness is not rebutted, "the Veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. That is to say, no deduction will be made for the degree of disability existing at the time of the Veteran's entry into service. Id.; 38 C.F.R. § 3.322 (2010). In this case, review of the Veteran's December 1986 service enlistment examination revealed normal findings for all systems, including psychiatric. Similarly, on the accompanying medical history report, the Veteran specifically denied that she had ever had depression or excess worry, frequent trouble sleeping, or nervous trouble of any sort. She also stated that she had never been treated for a mental condition. The Veterans Claims Assistance Act of 2000, Public Law No. 106-475, 114 Stat. 2096 (2000), states that VA has a duty to assist claimants in substantiating their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). This includes the duty to assist the claimant in obtaining evidence necessary to substantiate his or her claim. In a further effort to substantiate her claim by demonstrating that she abused alcohol following the claimed in-service assaults, the Veteran has reported that she received three (3) DUI arrests, the first approximately one month after separation from active duty service. In this respect, the Board observes that, although the previous remand instructions requested that the RO/AMC attempt to locate and obtain these arrest reports, it is unclear whether the Veteran was sent any type of form authorizing VA to obtain such records, or, due to the various state privacy laws, whether VA would even have a legal right to such documents. The Board notes that, while VA has a duty to assist claimants in substantiating their claims, the Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, while the case is in remand status, the Veteran should be asked to obtain and submit copies of her DUI arrest reports. In addition, while review of the claims folder shows that the Veteran was diagnosed with PTSD on at least one occasion during the course of this appeal, it is unclear whether such disorder was actually attributed to her claimed in-service sexual assaults and harassment. Accordingly, the Veteran should be scheduled for another VA examination to determine whether she currently has or has ever been diagnosed with PTSD during the course of this appeal that is medically-related to her claimed MST. Finally, the Board observes that the most recent VA treatment reports of record are dated September 2010. Thus, while the case is in remand status, the RO/AMC should ensure that any additional VA treatment records, specifically pertaining to treatment of the Veteran's mental health disorder(s), are obtained and associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request that she obtain copies of her previous DUI arrest reports and send them to VA. Any records received should be associated with the claims folder. Any negative reply should also be associated with the claims folder. 2. Obtain all available VA treatment records pertaining to the Veteran's mental health disorder(s) since September 2010 and associate with the claims folder. Any negative reply should also be associated with the claims folder. 3. Thereafter, the RO/AMC should schedule the Veteran for an examination with an examiner of appropriate expertise to determine whether she has a current diagnosis of an acquired psychiatric disorder, to include PTSD and bipolar disorder. If possible, the Veteran should be scheduled with an examiner who has not previously examined her. The claims folder must be provided to the examiner for review of pertinent documents therein in conjunction with the examination and the examiner must note that the claims folder has been reviewed. Any and all tests or studies deemed necessary should be performed and all clinical findings should be reported in detail. The examiner should elicit from the Veteran specific details concerning her claimed in-service military sexual assaults and harassment (e.g., dates, locations, persons involved) and note that, in addition to the medical reports, the Veteran's statements have been considered. For any acquired psychiatric disorder diagnosed, the clinician must opine as to whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that such disorder is related to service. In addition, if the examiner finds, by both clear and unmistakable (obvious and manifest) evidence, that such disorder pre-existed service, he or she is asked to indicate whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that such disorder was caused or aggravated (permanent worsening as opposed to temporary flare-ups or increase in symptoms) by active duty service beyond the normal course of its progression as a result of her claimed military sexual trauma. A complete rationale for any opinions expressed, as well as a discussion of the medical principles involved, must be provided. a). The clinician is also advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. b). If the examiner finds that it is impossible to provide the requested opinion without resort to speculation, it should be so stated. In that case, the examiner must specifically support this conclusion with a detailed medical explanation that takes into consideration all of the pertinent evidence of record (including the Veteran's self-reported history), and addresses such matters as whether 1) there is inadequate factual information upon which to base an opinion (e.g., the lack of service treatment records); 2) the question falls outside of the limits of current medical knowledge or scientific development; 3) the condition manifested in an unusual way, such that its cause or origin is unknowable; or 4) there are other risk factors for developing the condition. 4. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and her representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate consideration. 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). _________________________________________________ BARBARA B. COPELAND 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).