Citation Nr: 1300490 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 07-01 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney at law ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran had active military service from May 1970 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Paul, Minnesota. This appeal was denied in a July 2009 Board decision, which the Veteran appealed to the United States Court of Appeals for Veterans Claims. A Joint Motion for Remand was filed and granted by Order of the Court in December 2010. In June 2011 and February 2012, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran has claimed PTSD as a result of various stressors related to humanitarian assistance his ship purportedly gave to people in The Philippines after a typhoon and/or as a result of personal assaults while in service. The Veteran has been assigned a diagnosis of PTSD by a VA psychiatrist on the basis of the trauma he experienced in The Philippines. However, multiple efforts to verify his ship's participation in typhoon relief efforts have yielded no information corroborating the Veteran's claims. Even so, the Board concludes that insufficient effort has been made to determine if the Veteran's reported physical assaults in service occurred and if they resulted in his current acquired psychiatric disorder. The Board observes first that there are particular notice requirements in PTSD claims involving personal assault. In such cases, evidence from sources other than the Veteran's service records may corroborate an account of a 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; pregnancy tests or 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. 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. 38 C.F.R. § 3.304(f)(3). VA regulations provide that VA will not deny a PTSD claim that is based on in-service personal trauma 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 her or him the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. See 38 C.F.R. § 3.304(f)(3); Patton v. West, 12 Vet. App. 272, 278 (1999). Although the Veteran was sent VCAA letters in July 2005, August 2006, March 2008, and July 2011 for his service connection claim for PTSD, he was not notified of the evidence that may be submitted in support of PTSD claims based on personal assault. Consequently, this remand for substantive development will allow VA opportunity to provide complete notice in accordance with Patton. The record reflects that the Veteran seeks treatment at the VA Medical Center in Minneapolis, but the most recent treatment note in the claims file is dated in June 2008. Therefore, VA treatment records for the Veteran dated from June 2008 onward should be added to the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Further, the agency of original jurisdiction should ensure that the Veteran's entire personnel file is of record. The July 2005 request for these records specified that the claim involved PTSD and requested certain pages from the personnel file. Therefore, an additional request should be made to obtain the Veteran's 201 file from the National Personnel Records Center (NPRC). Finally, the Board finds that the Veteran should be afforded a VA examination to assess the nature and etiology of his claimed acquired psychiatric disorder. As indicated, personal assault stressors may be verified by secondary evidence such as behavior changes or disciplinary actions. The Veteran reported that he was assaulted by three sailors and forced to give them money while in transit and also while in transit after his discharge, he had a blanket thrown over him and was beaten. The Veteran indicated that he was beaten by anti-war protesters while on leave in San Diego. He also reported being chased by protestors while in Bremerton, Washington, and falling through a department store window, causing a cut to his head that required stitches. Finally, he stated that he was singled out by students protesting the war in Bemidji, Minnesota, which resulted in him needing stitches to his left wrist and arm. The Veteran indicated each of these events happened in 1971. Service treatment records reflect that the Veteran was seen in May 1971 at the Naval Hospital in Bremerton, Washington for a laceration of his forehead; the Veteran reported at that time that he did not know what happened. The report states that he was brought to the hospital via civilian ambulance. Two days later, he was seen for follow-up of the injury. The Veteran's service separation examination found a scar on the right side of his scalp, but no other signs of in-service injuries. He had a tattoo on his left forearm, which was also found at enlistment. Service personnel records document no misbehavior or sanctions for the Veteran in 1970. However, he was AWOL from January 18, 1971 to January 29, 1971. The Veteran went AWOL again for 24 hours from May 2, 1971 to May 3, 1971, and for over a week from May 31, 1971 to June 8, 1971. Then he was AWOL from August 24, 1971 to August 25, 1971. He received an administrative discharge in October 1971. A March 1972 post-service private treatment record shows that the Veteran lacerated his left hand on some broken glass. In April 1972, he suffered another laceration to his forehead when he purportedly spun in a circle and went through a window in a possible convulsive episode. In July 1975, the Veteran was mugged in Minneapolis and was treated for a scalp laceration and nose contusion. In December 1975, he overdosed on drugs, Phenobarbital suspected, and was diagnosed with acute alcoholism, acute drug overdose, a history of seizure disorder, and psychopathic personality disorder. In an October 2003 mental health evaluation for SSA, the Veteran reported a history of legal troubles in the 1970s related to alcohol and substance abuse and that he had problem with drugs while in service. The social worker diagnosed chronic adjustment disorder with depression and anxiety, a history of alcohol abuse in remission, and a history of PTSD by self-report. The Veteran reported being treated for alcohol abuse in 1996. In 2005, he was receiving private treatment for major depression and chronic pain. In November 2005, he began treatment within VA generally, and his first mental health treatment was in February 2006. He was diagnosed with major depression and PTSD. However, the diagnosis of PTSD was based on unverified stressors surrounding the purported typhoon relief efforts. Whether verified or not, the traumatic events must meet the criterion for a traumatic event sufficient to cause PTSD under the diagnostic criteria in the DSM-IV. Thus, the Board requires that a VA examiner not only provide the diagnoses most appropriate to the Veteran's symptomatology and mental health history, but if the examiner finds the Veteran's stressor claims credible, also discuss in detail signs or evidence in the file that support those claims. Additionally, for any diagnosis, the examiner must discuss how each criterion for any given diagnosis has been met. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be sent a letter notifying him of the additional evidence he may submit in support of a claim for PTSD for personal assault as outlined in 38 C.F.R. § 3.304(f)(3) and the Court's decision in Patton. 2. Request the Veteran's complete personnel file (201 file) from NPRC and any other appropriate sources. All requests and responses, positive and negative, must be documented in the claims file. 3. Associate with the file all VA treatment records for the Veteran from the Minneapolis VAMC dated from June 2008 forward. All requests and responses, positive and negative, must be documented in the claims file. 4. Following completion of the above requested action, schedule the Veteran for another VA examination to assess the nature and etiology of his claimed acquired psychiatric disorder. The claims file should be made available for review, and the examination report should reflect that such review occurred, including Virtual VA records. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make these determinations must be conducted. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: a. Identify all acquired psychiatric disorder diagnoses which are appropriate to the Veteran's symptoms. For each diagnosis, the examiner must explain how and why the Veteran meets the criteria for that diagnosis. If the examiner determines that PTSD is an appropriate diagnosis, the examiner must not only state the stressor events that precipitated the disorder, but also state what evidence in the file in addition to the Veteran's statements, e.g., service personnel records, service treatment records, civilian medical records support the occurrence of the stressor events. b. Once all appropriate diagnoses have been determined the examiner must opine as to whether it is at least as likely as not that any diagnosis assigned is causally or etiologically a result of the Veteran's military service? If the examiner disagrees with any diagnosis discussed in prior VA examinations or treatment records, he or she must say so and explain the reason for that conclusion. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A rationale for any opinion advanced must be provided. The examiner should also state what sources were consulted in forming the opinion. If the examiner finds the Veteran's claims inconsistent or implausible when viewed in the context of the complaints, treatment, and diagnoses documented in and after service, the examiner must explain the reasons for that finding. If an opinion cannot be formed without resorting to mere speculation, the examiner should so state and provide a reason for such conclusion. 5. After completing the above actions, the AOJ should conduct any other development indicated by any response received as a consequence of the actions taken in the preceding paragraphs. 6. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence and the claim should be readjudicated. If any benefit sought is not resolved to the appellant's satisfaction, the appellant and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran has the right to submit additional evidence and/or argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. 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. 2012). _________________________________________________ U. R. POWELL 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).