Citation Nr: 1306242 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 07-10 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran had active duty service from October 1979 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This matter was previously before the Board in January 2011, at which time the Board denied the claim for service connection for a psychiatric disorder, to include PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 Memorandum Decision, the Court vacated the January 2011 Board decision, as it essentially determined that the Board provided inadequate reasons and bases for its conclusion that the Veteran's account of in-service military sexual trauma was not credible. The Court remanded this matter for further proceedings. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). REMAND The Veteran contends that she is entitled to service connection for a psychiatric disorder. Specifically, she alleges that she has PTSD as a result of in-service sexual assaults and harassment. Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim. 38 U.S.C.A. §5103A (2002); 38 C.F.R. § 3.159 (2012). The Veteran has identified numerous incidents of military sexual trauma (MST) that she believes caused her to develop PTSD. She claims that drill sergeants during her basic training would select recruits with whom they would have sex in exchange for drugs, alcohol, and food. The Veteran also reports that she was raped by a staff sergeant when she served at Fort Rucker, Alabama, and that she subsequently had to have an abortion. She claims that she did not report the attack because it would have been her word against that of a non-commissioned officer. Additionally, she claims that while stationed at Fort Meade, she was groped by a captain who threatened to end her career if she reported the incident. Post-military VA medical records show that the Veteran has been diagnosed with PTSD. A VA medical record dated in July 2003 shows a diagnosis of PTSD due to MST, and additional VA records dated from August to October of 2006 note a history of PTSD, MST, and sexual abuse. A VA treatment record dated in July 2008 reflects a medical history of PTSD due to MST and indicates that the Veteran was raped while in the military. Similarly, letters dated in April 2005, November 2005, April 2008, and November 2008 from the Veteran's private physician include diagnoses of PTSD and chronic major depression attributed to sexual harassment while in the military. The private physician indicated that the in-service sexual harassment has left the Veteran traumatized and depressed, and that some of her psychiatric symptoms (specifically nightmares) began during her military service. While the Veteran's post-military medical records show a history of PTSD and MST, her available service personnel and service treatment records do not reflect reports of in-service sexual harassment or trauma and do not include a psychiatric diagnosis. The service treatment records, however, do show that she underwent an abortion in January 1981. Additional records show that in July 1982, the Veteran requested a profile due to her difficulty adjusting to a new environment and her report of a family medical history of a nervous condition. According to an August 2006 VA treatment record, the Veteran also underwent a mental health assessment in July 1986 while on active duty following conflict with a supervisor. (As discussed further below, the service records from the 1986 mental health assessment have not been associated with the claims file.) The Veteran's service personnel records do not reflect any disciplinary actions or indicate any behavior changes. The Board notes that the Veteran's testimony with respect to her in-service sexual trauma is not sufficient to verify the personal assault stressors set forth in this case. However, it is also recognized that the present case falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran alleges. See, e.g. Patton v. West, 12, Vet. App. 272 (1999). Moreover, the Veteran is competent to describe her in-service experiences. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In any event, the Board acknowledges that the relevant regulation stipulates that if a PTSD is based on in-service personal assault, evidence from sources other than a veteran's service records may corroborate his or her account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Moreover, and as highlighted by the Court, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims (Court) erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor). In light of the above, it would be inappropriate to deny the Veteran's claim at this point in time. Specifically, the medical evidence of record does not include a definitive opinion that takes into account all of the evidence, to include the Veteran's service records, in determining whether the Veteran's alleged in-service stressors occurred and whether the Veteran's PTSD is related to such stressors. Thus, the Veteran must be afforded a VA examination so that an opinion can be obtained in this regard. Moreover, there is also evidence of additional psychiatric diagnoses, to include depression, anxiety, and a mood disorder. The Court has held that even if a Veteran's claim is limited to PTSD, VA must interpret the Veteran's claim to be a claim for any mental disability that may reasonably be encompassed by the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Thus, VA must also obtain an adequate medical opinion with supporting rationale regarding whether any other psychiatric diagnosis is etiologically related to the claimed MST or is otherwise related to service Additionally, upon reflection, it appears that not all of the records from the Veteran's military service have been associated with the claims files. As highlighted by the Court in the August 2012 Memorandum Decision, the Veteran underwent a neuropsychiatric evaluation in August 2006, at which time she provided portions of her service treatment records reflecting that she was referred for a mental health evaluation in July 1986. According to the VA's physician's review of these records, mental health noted that the Veteran presented with job-related stress and conflict with her supervisor. What is more, although her service treatment records do not contain any records of a mental health referral and assessment, the Board acknowledges that the National Personnel Records (NPRC) sometimes maintains in-service psychiatric records apart from general service treatment records. Therefore, further development to obtain these records is in order. Finally, on remand, the originating agency shall endeavor to obtain all outstanding VA and private medical records relevant to the Veteran's psychiatric disability claim. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Contact the National Personnel Records Center (NPRC) or any other appropriate agency and request that it conduct a search for any in-patient and out-patient health clinic records related to the Veteran's evaluation and/or treatment for any psychiatric disorder in or around July 1986. In addition, contact the Veteran and request that she submit any service treatment records showing psychiatric evaluations and/or treatment that are in her possession. All development efforts and any negative response(s) should be associated with the record 2. Undertake appropriate development to obtain all outstanding VA treatment records and private medical records identified by the Veteran as relevant to the issue being remanded. 3. After completion of the above, the Veteran should be afforded a VA examination by a psychiatrist or psychologist. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Following an examination of the Veteran and a review of the relevant records and lay statements, the psychiatrist is asked to opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran displayed any behavior in service that would be consistent with her claim of being sexually assaulted and harassed during her active service. If the examiner is of the opinion that personal assault(s) occurred, the examiner should then state whether the Veteran has PTSD, or any other acquired psychiatric disorder, as a result of such assault(s) in service. If the examiner determines that there is inadequate evidence to support the occurrence of the in-service personal assault(s) or determines that the clinical evidence does not support a diagnosis of PTSD or psychiatric disorder due to the assault(s), the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed psychiatric disorder (including PTSD) had its onset in service or is otherwise etiologically related to the Veteran's service. The examiner must provide a complete rationale for all opinions offered. In this regard, the examiner should note 1) the Veteran's alleged service stressors/incidents, which are found in written statements; 2) medical records; and 3) lay statements of record (from her friend and mother). 4. Undertake any other indicated development. 5. Then, readjudicate the Veteran's claim for service connection. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and her representative should be provided with a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until she is otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above this case has been advanced on the Board's docket. It must also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Shane A. Durkin 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).