Citation Nr: 1301564 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-18 512A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from May 1986 until August 1989. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2009 rating decision of the RO. Recent case law mandates that a claim for a mental health disability 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. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Given the holding in Clemons, the Board has recharacterized the matter to the broader issue of service connection for an acquired psychiatric disability, to include PTSD, as is reflected on the cover page. A review of the record reflects that, although a claim for a mental condition was previously denied by the RO in April 2000, the RO received service personnel records, the enlistment examination and report of medical history, and service treatment records of the Veteran's ex-husband from the National Personnel Records Center (NPRC) in August 2008. The applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). See 38 C.F.R. § 3.156(c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. In the instant case, the Board finds that the newly received service personnel records, and in particular the enlistment report of medical history, are relevant to the Veteran's claimed acquired psychiatric disability. Therefore, 38 C.F.R. § 3.156(c) applies and, as such, the claim of service connection for an innocently acquired psychiatric disorder, to include PTSD, will be addressed on a de novo basis. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND A preliminary review of the record reflects further development is necessary in this case. As an initial matter, there are outstanding treatment records that are relevant to the claim. The VA outpatient treatment records refer to treatment at Northern Pines Mental Health Center, Crookston Clinic and Onamia Hospital. None of these records have been requested. Additionally, the record reflects the Veteran has been treated at the St. Cloud and Fargo VA Medical Centers (VAMC) and the Brainerd VA Clinic. Ongoing treatment records from these facilities from July 2012 until the present also should be secured and associated with the claims file. Additionally, a July 2012 VA outpatient treatment record noted that the Veteran was hospitalized at the New York VA hospital. Hence, the RO should assist the Veteran in obtaining any outstanding private and VA medical records. 38 U.S.C.A § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159 (2012); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (Observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims folder, are in the constructive possession of the Board and must be considered). The Veteran has claimed service connection for an acquired psychiatric disorder, including PTSD, based, in part, on her assertion of military sexual trauma (MST) that resulted in the conception and subsequent stillbirth of her son. The record reflects several current psychiatric diagnoses, including schizoaffective disorder, schizophrenia, mood disorder, bipolar disorder, PTSD, depression, psychoses and psychotic disorder. Significantly, the VA outpatient treatment records reflected assessments of PTSD related to military sexual trauma; however, no rationale for this assessment is provided. The RO previously scheduled a VA examination, but the Veteran failed to report. See 38 C.F.R. § 3.655 (noting that failure to report to an examination without good cause has consequences, including deciding the claim based upon the evidence in record and in some cases denying the claim). The October 2008 notification letter that advised the Veteran of the examination only indicated that it was "most important that you report at the exact date and time as shown above as it is very difficult to reschedule most of these examinations." In this case, the service treatment records are mostly unavailable with the exception of a handful of personnel records and the entrance examination. When the claimant's service records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In light of the fact that the service treatment records are unavailable and that the Veteran did not receive notice of the consequences of 38 C.F.R. § 3.655 prior to the examination, another attempt should be made to schedule VA examinations to address her claim. Thus, the RO should schedule the Veteran for a VA examination with a psychiatrist or other qualified mental health care provider to determine the nature and likely etiology of the claimed psychiatric disorder, including whether there were any indications (behavior changes, etc, including after her military service) the Veteran was sexually assaulted while in the military. 38 C.F.R. § 3.304(f)(1), (f)(5); see McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4); Patton v. West, 12 Vet. App. 272 (1999) (allowing for after the fact analysis of behavior changes to serve as corroborating evidence that the inservice stressor occurred for cases involving personal assault). Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the Veteran and ask her to identify all medical care providers who treated her for the claimed psychiatric disorder. The RO should then obtain and associate with the claims file copies of all records from any identified health care provider that are not already associated with the claims file. Her assistance in identifying and obtaining records should be requested as needed. The RO also should take appropriate steps to obtain copies of all private treatment records from Northern Pines Mental Health Center, Crookston Clinic and Onamia Hospital, as well as copies of any VA medical records from the St. Cloud and Fargo VAMC and the Brainerd VA clinic dated since July 2012. The RO should also obtain copies of all records from the New York VA hospital related to the July 2012 period of hospitalization. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. After the above requested development has been completed and any additional records are associated with the claims file, the RO should have the Veteran scheduled for a VA psychiatric examination to determine the nature and likely etiology of the claimed psychiatric disorder. All indicated tests must be accomplished. The claims folder must be reviewed by the examiner in conjunction with the examination, and the examiner must acknowledge this receipt and review in any report generated as a result of this remand. The examiner is requested to provide an opinion as to the following: a) whether it is at least as likely as not (a 50 percent or greater probability) the Veteran has disability manifested PTSD that is related to an in-service stressor of military sexual trauma that resulted in the conception and stillbirth of her son. In rendering this opinion, the examiner should comment upon whether there is any indication (behavior changes, etc.) the Veteran was sexually assaulted while in the military. b) whether it is at least as likely as not (a 50 percent or greater probability) that another psychiatric disability, including but not limited to schizophrenia, a schizoaffective disorder, a mood disorder, a bipolar disorder or a depressive disorder, had its clinical onset during the Veteran's period of active service. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. 3. The Veteran is hereby notified that it is her responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. The RO shall then take such additional development action as it deems proper with respect to the claim. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2012). _________________________________________________ STEPHEN L. WILKINS 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).