Citation Nr: 1304402 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-22 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant (Veteran) represented by: Wounded Warrior Project WITNESSES AT HEARING ON APPEAL Veteran and S.V. ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from April 2003 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran appeared before the undersigned Veterans Law Judge in a hearing at the RO in May 2012 to present testimony on the issue on appeal. The appeal is 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 contends that she incurred a psychiatric disorder during service as a result of experiencing sexual assaults, and as a result of engaging in combat with the enemy. With regard to the sexual assault, the Veteran detailed her contentions during the May 2012 hearing before the undersigned, and in an undated stressor statement of record. Moreover, VA treatment records indicate that the Veteran has been diagnosed with several psychiatric disorders, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (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). Based on this evidence, the Board finds additional development warranted into her claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection for PTSD, there must be: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between the current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a PTSD claim is based on in-service personal assault, such as in this case, 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; 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. VA will not deny a PTSD 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. 38 C.F.R. § 3.304(f)(5)(2012). Moreover, VA has implemented additional procedures in VA's M-21 Adjudication Procedure Manual to assist claimants who file claims based on military sexual trauma. They were most recently amended in September 2009. See M-21MR, Part IV, Subpart ii, Chapter 1, Section D, Topic 17. The Veteran was provided with a notification letter in June 2008. But a review of the record reveals that the requisite process has not been followed, and that the Veteran has not been specifically advised that evidence from sources other than her service records, or evidence of behavior changes, may constitute credible supporting evidence of the in-service assault stressors. Though certain of this information was noted in the April 2010 statement of the case, the Board nevertheless finds full notice in accordance with the September 2009 amendment warranted in a new duty-to-assist letter to the Veteran. On remand, the Veteran should be provided with a duty-to-assist letter which conforms to both the Veterans Claims Assistance Act of 2000 (VCAA) and the current amendment of VA's Adjudication Procedure Manual regarding claims based on military sexual trauma. Additionally, under 38 C.F.R. § 3.304(f)(5), VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for interpretation. Bradford v. Nicholson, 20 Vet. App. 200 (2006). Most significantly, for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. See Bradford v. Nicholson, 20 Vet. App. 200 (2006); Patton v. West, 12 Vet. App. 272, 278 (1999). The Board is indeed very mindful of the fact that veterans claiming service connection for disability due to in-service personal assault face unique problems documenting their claims. Since assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. As noted by the Veteran's representative during the May 2012 hearing, the Veteran experienced disciplinary problems during service that led to an administrative discharge. The Board also notes evidence in service personnel records indicating a "suicidal gesture" during service. This type of evidence may indicate post-assault behavioral changes that could corroborate a claim for service connection. The Veteran has not undergone VA compensation examination into her claim. Under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he or she suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, the Veteran should be scheduled for an appropriate VA examination to ascertain whether she has a psychiatric disorder to include PTSD that is etiologically related to the asserted in-service sexual assaults. With regard to her claim that she incurred a psychiatric disorder due to involvement in combat, the Board again notes that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). VA recently amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing in-service stressors. 75 Fed. Reg. 39843 (July 13, 2010). The amendments, which took effect July 13, 2010, redesignated current paragraphs (f)(3) and (f)(4) of 38 C.F.R. § 3.304(f) as paragraphs (f)(4) and (f)(5), respectively, and added a new paragraph (f)(3) that reads as follows: If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." In place of corroborating reported stressors, a medical opinion must instead be obtained from a VA, or VA contracted, psychiatrist or psychologist. In this case, the Veteran contends that, in part, she developed a psychiatric disorder to include PTSD as a result of combat activity while serving in Iraq. The Veteran's service personnel records show that she did serve in Iraq. However, she has not provided a detailed stressor statement that would enable VA to adequately assess her claim. If she submits into the record credible lay statements regarding her asserted combat with the enemy, a VA examiner should comment on her claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with appropriate notice, pursuant to the VCAA under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), regarding her claim for an acquired psychiatric disorder, to include taking the steps identified in M-21MR, Part IV, Subpart ii, Chapter 1, Section D, Topic 17 of the VA Adjudication Procedure Manual for developing claims for service connection for PTSD based on personal trauma, such as military sexual assaults, as well as the amended regulations relating to fear of hostile military or terrorist activity. 2. Request from the Veteran a written stressor statement in which she details the circumstances of combat in Iraq which led to the development of a psychiatric disorder. 3. Obtain and associate with the claims file any VA treatment records dated after May 2011. 4. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder diagnosed, to include both PTSD and non-PTSD disabilities. The claims file must be reviewed in conjunction with the examination and the examiner's report should note that review. All testing deemed necessary, if any, must be conducted and results reported in detail. The VA examiner's opinion should: a) Diagnose all current psychiatric disabilities and provide a full multi-axial diagnosis pursuant to the Diagnostic and Statistic Manual of Mental Disorders, Fourth Edition (DSM- IV). b) Specifically state whether or not each criterion for a diagnosis of PTSD is met pursuant to DSM- IV. c) If a diagnosis of PTSD is warranted, indicate the specific claimed in-service stressor or stressors upon which that diagnosis is based and state whether each stressor is related to the asserted in-service sexual assault, or to an asserted fear of hostile military or terrorist activity. Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The examiner is advised that the Veteran's personnel records confirm service in Iraq. d) Discuss whether it is at least as likely as not (50 percent or more probability) that any other currently diagnosed psychiatric disorder, including PTSD, was caused or aggravated by the Veteran's reported in-service stressors or any other aspect of her military service. Please provide the reasons behind all opinions expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. In preparing the requested opinions, all pertinent evidence of record should be considered. The examiner's attention is specifically invited to the Veteran's written statements and Board testimony attesting to various in-service stressors during her period of active service. The examiner should also consider the VA mental health treatment records, and her lay assertions regarding a continuity of symptomatology of psychiatric problems since active service. 5. The claim on appeal should then be readjudicated. If any aspect of the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 Supp. 2012). _________________________________________________ BETHANY L. BUCK 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).