Citation Nr: 1237498 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 10-27 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1953 July 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied entitlement to PTSD. The Court has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claim for benefits based on PTSD encompassed benefits based on other psychiatric disabilities). Therefore, the Board construes the Veteran's claim for service connection for PTSD as encompassing entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, regardless of the precise diagnosis. The Veteran provided testimony during a personal hearing before a Decision Review Officer (DRO) at the RO in October 2009. He provided testimony during a hearing before the undersigned at the RO in June 2012. A transcript of each hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Veteran stated during his June 2012 Board hearing that he has continued to obtain VA mental health treatment. A June 2009 treatment record indicated that the Veteran was beginning regular treatment with a men's sexual trauma group. In addition, there is evidence of in-patient treatment from March to May 2008 for major depression. VA treatment records current associated with the claims file are dated from September 2008 to February 2009, and March 2009 to July 2009. Therefore, there are outstanding VA treatment records relevant to this claim. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). As this evidence is relevant to the Veteran's claim, all relevant records in VA's possession must be obtained. The Veteran contends that he developed an acquired psychiatric disorder, to include PTSD and depression, as the result of a sexual assault during active duty service. In general, to establish service connection for PTSD, a claimant must present (1) evidence of a current diagnosis of PTSD; (2) evidence of an in-service stressor, with supporting evidence verifying the actual occurrence of the claimed stressor; and (3) medical evidence of a causal nexus between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2008); see Cohen v. Brown, 10 Vet. App. 128, 138 (1997). In the case of a claim for service connection for PTSD based on in-service personal assault VA has undertaken a special obligation to assist a Veteran in producing corroborating evidence of an in-service stressor. Gallegos v. Peak, 22 Vet. App. 329, 335 (2008) (citing Patton v. West, 12 Vet. App. 272, 280 (1999)). In accordance with this special obligation, 38 C.F.R. § 3.304(f)(5) (2012) (formerly 38 C.F.R. § 3.304(f)(4)) places a heightened burden of notification on VA in claims for service connection for PTSD based on in-service personal assault. First, VA must inform the Veteran that he may submit alternative forms of evidence, other than service records, to corroborate his account of an in-service assault, and suggest potential sources for such evidence. 38 C.F.R. § 3.304(f)(5); see Bradford v. Nicholson, 20 Vet. App. 200, 206 (2006); Patton, 12 Vet. App. at 281-82. The Veteran should also be notified that, alternatively, evidence of behavioral changes following the alleged in-service assault may constitute credible supporting evidence of the stressor. 38 C.F.R. § 3.304(f)(5); see Bradford, 20 Vet. App. at 206. The regulation also provides that VA may refer evidence to a mental health examiner for an opinion as to whether the evidence supports a finding of behavior changes in response to a stressor. In a February 2009 letter, the Veteran was asked to submit specific alternative forms of evidence, but he was not explicitly told that he could substantiate the claim with alternate records, and was not advised that evidence of behavioral changes could also constitute credible supporting evidence of the in-service assault. Thus, additional notice should be provided in this case. Additionally, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service includes credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Board finds that a VA examination is necessary in this case. The Veteran reported during his Board hearing that his psychiatric symptoms began following the reported in-service sexual assault and that they have continued since. He also reported during VA treatment that his symptoms resulted from an in-service sexual assault. An examination is needed to determine whether the Veteran meets the criteria for a diagnosis of PTSD, and, if so, to specify the stressors supporting the diagnosis. In addition, an opinion is needed to determine whether there is evidence of behavior changes following the claimed stressor and whether any other psychiatric disability was incurred during active duty. Finally, the VA examiner must opine as to whether any other currently diagnosed psychiatric disability, to include depression, was incurred during or as a result of service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be provided notice informing him that evidence from sources other than service records or evidence of changes in behavior may constitute credible supporting evidence of the claimed stressors. The Veteran should then be allowed the opportunity to submit such evidence or advise VA of the sources of such evidence. 2. Obtain all outstanding VA medical records and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 3. After the above development has been completed and all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule for a VA psychiatric examination with a qualified physician. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should provide an opinion as to whether the Veteran meets the criteria for a diagnosis of PTSD. If not, the examiner should specify which of the criteria are not met. If the Veteran does meet the PTSD criteria, the examiner should specify the stressors supporting the diagnosis. If a supporting stressor consists of an in-service personal assault, the examiner should provide an opinion as to whether there is evidence of behavior changes in response to the stressor. The examiner should also provide an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that any currently diagnosed psychiatric disorder had its onset in active service or is otherwise the result of disease or injury in service. The rationale for all opinions should be provided. The examiner should provide a rationale for each of the opinions that takes into account the Veteran's reports of injuries, stressors, and symptoms. 4. The agency of original jurisdiction should review the examination report to ensure that it contains the opinions and rationales requested in this remand. 5. After completion of all requested and necessary development, the RO should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. 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 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 2002 & Supp. 2012). _________________________________________________ ERIC S. LEBOFF 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) (2012).