Citation Nr: 1139700 Decision Date: 10/26/11 Archive Date: 11/07/11 DOCKET NO. 10-12 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from March 1975 to March 1978. This matter comes to the Board of Veterans' Appeals (Board) from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in December 2009, a statement of the case was issued in March 2010, and a substantive appeal was received in March 2010. The Veteran testified at a Board hearing in August 2011; the transcript is of record. In a November 2010 RO Report of Contact, the Veteran requested reconsideration of the "bilateral arthritis" issue, which appears to be the bilateral arthritis of the feet issue. This is referred to the Agency of Original Jurisdiction for appropriate action. The issue of entitlement to service connection for an acquired psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any further action is required on her part. 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). FINDING OF FACT In a November 2010 written submission, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of entitlement to service connection for PTSD. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of entitlement to service connection for PTSD. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION DISMISSAL Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by her authorized representative. 38 C.F.R. § 20.204. In this case, the Veteran withdrew her appeal of entitlement to service connection for PTSD in a November 2011 written submission. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal, and the issue of entitlement to service connection for PTSD is dismissed. ORDER Entitlement to service connection for PTSD is dismissed. REMAND The Veteran claims entitlement to service connection for an acquired psychiatric disability due to a rape that occurred in service in December 1975. The Veteran did not report the rape during service. The Veteran has also suggested that she had a pre-existing acquired psychiatric disability (due to childhood sexual abuse) that was aggravated in service. As detailed hereinabove, the Veteran's claim of service connection for PTSD has been dismissed as the Veteran withdrew her claim. The basis of the Veteran's withdrawal was that a diagnosis of PTSD has not been rendered. A February 1975 Report of Medical Examination reflects that her psychiatric state was clinically evaluated as normal. On a Report of Medical History completed by the Veteran in February 1975, she checked the 'No' boxes for 'nervous trouble of any sort' and 'depression or excessive worry.' A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Thus, the Veteran was presumed sound upon entry into service. See id. Service treatment records do not reflect any complaints or treatment for a mental disability. A January 1978 Report of Medical Examination performed for separation purposes reflects that her psychiatric state was clinically evaluated as normal. On a Report of Medical History completed by the Veteran in January 1978, she checked the 'No' boxes for 'nervous trouble of any sort' and 'depression or excessive worry.' 38 C.F.R. § 3.304(f)(5) specifically addresses claims of PTSD based on in-service personal assault. But in this case, the Veteran is claiming entitlement to an acquired psychiatric disability based on in-service personal assault which is generally considered per 38 C.F.R. § 3.303. Nevertheless, the regulations and VA Adjudication Procedure Manual M21-1 (M21-1) will provide guidance as to the establishing the occurrence of the claimed in-service stressor. VA Adjudication Procedure Manual M21-1 (M21-1), Part III, regarding personal assault notes that: "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." M21-1, Part III, 5.14c. M21-1 identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1, Part III, 5.14c(4)(a). When there is no indication in the military record that a personal assault occurred, alternative evidence, such as behavior changes that occurred at the time of the incident, might still establish that an in-service stressor incident occurred. Examples of behavior changes that might indicate a stressor include: visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; lay statements indicating increased use or abuse of leave without apparent reason; changes in performance or performance evaluations; lay statements describing episodes of depression, panic attacks or anxiety with no identifiable reasons for the episodes; increased or decreased use of prescription medication; evidence of substance abuse; obsessive behavior such as overeating or under eating; pregnancy tests around the time of the incident; increased interest in tests for HIV or sexually transmitted diseases; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; breakup of a primary relationship. M21-1, Part III, 5.14c(7)(a)-(o). See also 38 C.F.R. § 3.304(f)(3); Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21 manual evidentiary procedures apply in PTSD personal assault cases). The Veteran has testified that she sought mental health treatment in 1981 or 1982; however, she was unable to provide the name of the medical provider. She recalled the location of the office, and the record was left open for 30 days to allow her to attempt to obtain such records. To date, such records have not been received, and in an August 2011 submission she stated that she had enclosed all remaining information that she has to support her claim. She has also testified that a non-mental health medical provider prescribed medication for her depression; however, she did not identify this medical provider. VA outpatient treatment records reflect diagnoses of major depressive disorder recurrent, moderate, and anxiety disorder, not otherwise specified. A diagnosis of depression was initially assessed in June 2008. Initially, the Veteran should be contacted and requested to identify the name, address, and dates of treatment with regard to the private medical provider who prescribed medication for depression. Upon obtaining an appropriate release, the Veteran's treatment records from this medical provider should be requested. The Veteran has testified that she is in receipt of Social Security Administration (SSA) benefits and she has submitted a copy of the Notice of Award letter which reflects that she was entitled to SSA disability benefits beginning in November 2008. The Veteran's SSA records should be requested and associated with the claims folder. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). Updated VA treatment records should be obtained from the Nashville VA Medical Center (VAMC) for the period December 1, 2009, to the present. See Bell v. Derwinski, 2 Vet. App. 611 (1992). After completion of the above, the Veteran should be scheduled for a VA psychiatric examination to address the nature and etiology of her major depressive disorder and anxiety disorder. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that she identify the name, address, and dates of treatment with regard to the private medical provider who prescribed medication for depression, and that she complete an appropriate release with regard to such medical provider. In the event the Veteran responds and upon obtaining an appropriate release from the Veteran, request the Veteran's treatment records from any identified medical provider. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain the entirety of the Veteran's records from the SSA. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Obtain updated treatment records from the Nashville VAMC for the period December 1, 2009, to the present. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. The RO should schedule the Veteran for a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. Service treatment and personnel records do not document the alleged in-service incident. The examiner is specifically requested to provide a detailed medical analysis and interpretation of any behavioral changes that occurred at or close in time to the alleged in-service incident (December 1975) that could possibly indicate its occurrence. 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 examiner should respond to the following: a) Please identify all acquired psychiatric disabilities. b) For each acquired psychiatric disability diagnosed, did it at least as likely as not (a 50% or higher degree of probability) have its clinical onset during the Veteran's period of service, or is any such disability otherwise related to such period of service, including to any asserted sexual assault? A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. 5. After completion of the above, the RO should review the expanded record and readjudicate the service connection claim. If the benefit sought is not granted in full, the Veteran and her representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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 Veteran and her representative have 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs