Citation Nr: 1301036 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 12-28 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Bryan Held, Agent ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to April 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. 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 Board regrets further delay in this case but finds that additional development is necessary before a final decision can be rendered. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court 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. The Veteran has been diagnosed with a mood disorder, panic disorder with agoraphobia, depression, alcohol dependency, and PTSD. See VA Examination, August 2011; Psychiatry Outpatient Note, June 23, 2011; Mental Health Crisis Intervention Note, June 2, 2008. The Veteran repeatedly dates the onset of his various psychiatric disorders and alcohol abuse to his military service and states that these conditions have continued to the present time. Thus, the record raises the issue that the Veteran's current symptoms arise from various psychiatric disorders, including PTSD that began in-service. Additionally, the Veteran's initial June 2011 claim for benefits phrases the issue as entitlement to service connection for an acquired psychiatric condition. Therefore, the Board cannot limit its analysis of the Veteran's claim solely to PTSD. That is, the Veteran's PTSD claim potentially encompasses psychiatric conditions other than PTSD that are reasonably raised by the record. In August 2012, the Veteran submitted a statement in support of his claim. In this statement he raised for the first time the issue of being the victim of sexual and physical assault in-service. Specifically, the Veteran claimed that during his confinement in the Brig after deserting, he was raped twice and beaten up. A careful review of the Veteran's service personnel records reveal that in January 1967, the Veteran was confined to the Naval Brig for four days as a result of several unauthorized absences. The Veteran was transferred to the Naval Station, where he was confined for an additional two months while awaiting disciplinary action. In March 1967, the Veteran was sentenced to confinement and hard labor for two months and given a reduction in his pay grade for going absent without leave (AWOL). The Veteran was discharged from military service in April 1967. The appellant's service records do not indicate that he reported the alleged sexual or physical assaults. The Board notes that if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the 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; 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: deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault 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 him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA has a heightened burden of notification when a veteran claims service connection for PTSD based upon personal assault. Gallegos v. Peake, 22 Vet. App. 329 (2008). Thus, the Board finds that the RO must send the Veteran the appropriate VCAA notice that deals with PTSD based upon alleged in-service sexual and physical assault. For personal assault PTSD claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. Id.; Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011); Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006); Patton v. West, 12 Vet. App. 272, 280 (1999). See also VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section H, part 30(b), (c), (e) (Aug. 1, 2006). Therefore, after updating the claims file with any pertinent information from the Veteran and VA treatment facilities, the Veteran should be scheduled for a VA examination to determine whether there were behavioral changes or other indications of the Veteran being subjected to sexual and/or physical trauma in-service and to determine the etiology of any current psychiatric disorder(s) to include PTSD. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The VA examiner who diagnosed PTSD in 2011 based solely on the Veteran's childhood abuse did not have access to critical evidence of alleged in-service sexual and physical assault. The probative value of medical opinion evidence, among other factors, is based on whether a clinician was "informed of the relevant facts" and medical history in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Therefore, a new VA examination will be necessary. Additionally, it is necessary to seek clarification regarding the August 2011 PTSD VA examination. Specifically, the Board will request clarification of the rationale as to why the examiner found the Veteran's diagnosis of PTSD solely related to his childhood abuse and not his in-service trauma. Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "[i]f further evidence or clarification of the evidence... is essential for a proper appellate decision"). Thus, the new VA examination should be performed by the August 2011 examiner if they are available. Finally, the Veteran's VA treatment records on file date to August 2012. If the Veteran has received additional VA treatment at any VA facility, these records must be secured. VA's duty to assist includes obtaining records of the Veteran's relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). Accordingly, the case is REMANDED for the following action: 1. The RO should send an updated VCAA notice letter specifically notifying the Veteran of the evidence yet needed to substantiate his service connection claim for an acquired psychiatric disorder, including PTSD, claimed as due to in-service personal assault/sexual trauma, and of what part of such evidence he should obtain, and what part the RO will attempt to obtain on his behalf, including VA records. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Such letter should notify the Veteran that evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the 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; 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. 2. The RO must contact the Veteran to ascertain if he has had any additional relevant treatment at a VA facility since August 2012. Then obtain the records of any relevant medical treatment since August 2012 to the present, including records from the VA Medical Center (VAMC) in Fort Harrison, Montana and the Community Based Outpatient Clinics (CBOCs) in Las Vegas, Nevada and Great Falls, Montana. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 3. After completion of the above, the RO should arrange for a VA examination with the same examiner that conducted the Veteran's 2011 PTSD examination (if they are unavailable, a medical professional with appropriate expertise), to determine whether there were behavioral changes or other indications of the Veteran being subjected to sexual and/or physical trauma in-service and the nature and etiology of any currently present psychiatric disorder(s), to include PTSD. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner must be advised that actual corroboration of the claimed sexual and physical assaults (e.g., by way of contemporaneous police reports, military disciplinary proceedings, etc.) is not dispositive as to the question of whether the assault(s) occurred. The Board is requesting that the examiner opine as to whether they believe that the Veteran sustained one or more sexual and/or physical assault(s) as he has alleged, even without corroboration of record. The examiner should provide a current psychiatric diagnosis. The examiner should utilize the DSM-IV in arriving at any diagnoses and should explain whether and how each of the diagnostic criteria is or is not satisfied. The examiner should then determine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any currently diagnosed psychiatric disorder(s) are etiologically related to any incident(s) of the Veteran's active duty service, to include his reports of sexual and/or physical assaults during service. The VA examiner is requested to provide a thorough rationale for any opinion provided. The examiner should also provide a rationale as to their August 2011 opinion that the Veteran's diagnosis of PTSD solely related to his childhood abuse and not his in-service combat trauma, including the date of onset of the PTSD. 4. Readjudicate the claims on appeal with consideration of all evidence of record. If the benefits sought are not fully granted, provide the Veteran and his representative a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order. The appellant 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 Supp. 2012). _________________________________________________ MILO H. HAWLEY 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).