Citation Nr: 1234923 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 07-20 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) due to personal trauma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1978 to February 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO), which, in pertinent part, denied the benefit sought on appeal. In a November 2010 decision, the Board denied a claim for an increased rating for bilateral foot disability (identified as calluses on both feet). At that time, the Board broadened the scope of the remaining claim on appeal to include other psychiatric diagnoses, as identified above, in consideration of the Court of Appeals for Veterans Claims (Court) decision, Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board then remanded the matter to the RO (via the Appeals Management Center (AMC)) for additional development. 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 the November 2010 remand, the Board instructed the RO/AMC to accomplish the following: to provide the Veteran with proper notice compliant with 38 C.F.R. § 3.304(f), as required for PTSD claims based on in- service personal assault or harassment; to obtain any outstanding VA and private treatment records; to ask the Veteran to submitted a completed PTSD questionnaire; to attempt verification of the Veteran's alleged stressor or to provide a formal finding for itemizing unsuccessful attempts; and to provide the Veteran with a VA psychiatric examination. Initially, there was substantial compliance with the November 2011 remand directives. The RO/AMC sent the Veteran proper notice in November 2010 and asked him to submit a completed PTSD questionnaire. It does not appear that the Veteran responded in a timely manner (his response was received in January 2012), and the RO/AMC attempted to verify the Veteran's alleged inservice trauma regarding a personal assault and sexual abuse based on the information contained in the claims folder. Based on the available information contained in the claims folder, and in particular on the information contained in a December 1983 statement report of accident, the RO described the Veteran's alleged inservice stressor as involving a physical and sexual assault by the Air Force military police at the Charleston Air Force Base (AFB) in April 1981. At the time, the Veteran was assigned to HHB, 1st BN, 6th FA, FT Bragg, NC. The Veteran reported that he was at the Charleston AFB on layover while waiting to take a flight home so that he could attend a funeral of a family member. The Veteran reports that he was approached by the military police and asked to what he was doing. The Veteran was arrested under the suspicion of window peeping and taken to the station to be questioned further. Reportedly, the Veteran was angry at being falsely accused, and although he was instructed to calm down, the Veteran took his frustration out by breaking the window. Based on the Veteran's later statements, an alleged altercation with the MPs then ensued, resulting in the claimed assault. The Board notes that a review of the claims folder also contains a hospital summary reported dated in April 1981 that shows the Veteran was hospitalized for three days for injuries sustained when he jammed his elbow thorough a window at the Air Force Police Station at the Charleston AFB. The Veteran's service personnel records also showed that the Veteran went AWOL from his assigned unit between November 20, 1981 to December 19, 1981, and he surrendered to the authorities on December 24, 1981. The Veteran received an Under Other than Honorable (OTHC) discharge in February 1982 and he received an administrative discharge in lieu of trial by court-martial. The findings contained in the character of discharge determination show that the Veteran reported that he went AWOL because of his desire to assist his family members whom were suffering financial and emotional hardship. It was noted that the Veteran stated "that he could better assist his family by finding civilian employment than by remaining in the Military service and his only desire is to receive a discharge and return home as soon as possible." There was no indication of a personal assault noted in the administrative determination. A December 2011 memorandum to the record that was signed by the JSRRC Coordinator and Coach shows that the RO/AMC determined that the record lacked information required to corroborate the Veteran's alleged inservice stressor event, but that an examination would be needed. The December 2011 memorandum itemized the actions taken in attempt to corroborate the alleged inservice stressor, including contacting the United States Air Force Office of Special Investigations (AFOSI) and the US Army Crime Records Center, Criminal Investigation Division (CID). Negative responses were received regarding any information that would assist in corroborating the Veteran's alleged inservice stressor. The January 2012 completed PTSD questionnaire contains the Veteran's statement that while he was en route to his uncle's funeral and on layover at Charleston AFB, he was falsely arrested. While in custody, he was assaulted and abused by the military police. He was hospitalized for two days for injuries he sustained from the physical assault. The Veteran's statements appear to mirror the RO's previous description of his alleged inservice assault and do not provide any further information that would assist in corroborating his claims of physical and sexual assaults. The record also shows that the RO/AMC twice attempted to provide the Veteran with a VA psychiatric examination pursuant to the Board's November 2010 remand directives. The record shows that the Veteran cancelled his first scheduled VA examination in January 2012 and that he requested to be scheduled for another. He failed to report to the second scheduled VA examination in March 2012. The Board notes, however, that it is unclear whether the Veteran actually received notification of the rescheduled VA examination. Review of correspondences sent to the Veteran demonstrates that he has changed addresses multiple times during the course of the appeal. Also, the December 2011 memorandum documented the RO's inability to contact the Veteran. In a July 2012 statement, the Veteran listed his current address (which is different from his previous ones shown in the record) and stated his desire and willingness to attend an examination when it is scheduled. In light of the above, the RO/AMC should make another attempt to schedule the Veteran for VA examinations in connection with his claim currently on appeal. It is crucial that the RO/AMC do so using the Veteran's most current address. Prior to the examination, the RO/AMC should seek the Veteran's assistance to obtain any outstanding records of pertinent VA or private treatment. It appears that the Veteran has received on-going VA mental health treatment. The Veteran's Virtual VA paperless claims file contains VA mental health treatment records dated through June 2012 that were not considered in the most recent March 2012 Supplemental Statement of Case (SSOC). VA regulations provide that the Board cannot consider evidence in the first instance unless the appellant waives initial consideration by the AOJ. See 38 C.F.R. § 20.1304 (2011). These VA records must be considered by the AOJ on remand. Accordingly, the case is REMANDED for the following action: 1. By appropriate means, and with any necessary assistance from the Veteran, the RO/AMC should seek to identify and obtain any VA and/or private records of pertinent medical treatment that are not yet on file. 2. Schedule the Veteran for a VA psychiatric examination, with the appropriate specialist, who has reviewed the claims file. The examiner should conduct all necessary testing and render a multi-axial diagnosis. In the examination report, the examiner should determine whether the Veteran has symptomatology that satisfies the required criteria under DSM-IV for a diagnosis of PTSD as defined under 38 C.F.R. § 4.125, and if so, provide a medical opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that any such diagnosed disorder is related to an inservice stressful event. The VA examination report should be conducted in accordance with the revised 38 C.F.R. § 3.304(f). For each Axis I diagnosis other than PTSD, the examiner should provide an opinion as to whether it is at least as likely as not that such disorder is etiologically related to service. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. This fact should be so indicated in the examination report. A complete rationale for all opinions provided should be given. If the examiner is unable to address any inquiry sought above, then he or she should explain why. 3. The RO/AMC should then re-adjudicate the claim for service connection for a psychiatric disorder, to include PTSD, to include as due to personal assault. If the claim remains denied, issue the Veteran and his representative a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board 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. 2011). _________________________________________________ DENNIS F. CHIAPPETTA 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) (2011).