Citation Nr: 1307219 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-37 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder and dysthymic disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from January 1986 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In September 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board observes that in addition to being diagnosed with PTSD, the Veteran has also been diagnosed with major depressive disorder and dysthymic disorder. The United States Court of Appeals for Veterans Claims (Court) held that, when a claimant identifies PTSD without more, it cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court found that such an appellant did not file a claim to receive benefits only for a particular diagnosis, but rather for the affliction (symptoms) that her mental condition, whatever that particular disorder may be, causes her. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has recharacterized the issue as set forth on the title page. 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 Regrettably, a remand is necessary for further development. According to the Veteran's VA treatment records, she was denied disability benefits from the Social Security Administration (SSA). However, it does not appear that any attempt to obtain the Veteran's SSA records was undertaken. Although the Veteran has not specifically reported that she sought SSA benefits based on her psychiatric disorders, the Board cannot conclude that such records are not relevant. Thus, the Board finds that it is incumbent on VA to obtain the SSA records prior to a final adjudication of the Veteran's appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 369-370 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). The Board observes that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). That regulation was amended, effective March 7, 2002, with respect to claims based on personal assault. See 67 Fed Reg. 10330 -10332 (March 7, 2002); 38 C.F.R. § 3.304(f)(4). The amended VA regulations provide that if PTSD is based on an in-service personal assault, the Veteran must be informed that evidence from sources other than her service records may corroborate her account of the stressor incident. See 38 C.F.R. § 3.304(f)(4). Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may constitute credible evidence of the stressor and such evidence includes, but is 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 may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3). The Veteran contends that she has a psychiatric disorder that is related to military sexual assault. She contends that she was assaulted by two superiors in a storage room sometime in 1987. See, e.g., June 2008 stressor statement. In her June 2008 stressor statement, the Veteran reported what she believes are in-service behavioral changes that she asserts support the occurrence of her claimed stressor. Such changes include a change in what department she worked in and having an eating disorder that caused her weight increase to 187 pounds prior to discharge and 230 pounds in the first couple of years after service. A review of the Veteran's personnel records show that she had consistently good performance evaluations from July 1989 to February 1992. A review of her service records shows a weight gain from 117 pounds at enlistment in July 1985 to 185 pounds at discharge in February 1992. The Board is unable to discern any changes in her service personnel and treatment records that may corroborate this stressor. However, as noted above, 38 C.F.R. § 3.304 provides that VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Accordingly, as a remand is necessary, the Board finds that a VA opinion should be obtained as to whether the evidence, to include the weight gain, supports her assertion of a sexual assault. Also, the Veteran claims a second stressor of a friend being killed. She has submitted articles regarding a serviceman convicted of kidnapping and killing a woman who served with him. At the Veteran's hearing, she testified that the woman killed was her best friend. September 2012 Hearing Transcript (T.) at 4. She testified that a picture taken by her of the woman killed was submitted in connection with her claim. However, a review of the claims file fails to show such picture. There is no corroboration in the evidence of record that the Veteran actually knew the woman who was killed. The Board notes that this account of the reported stressor differs significantly from previous stressor reports provided by the Veteran. The Veteran should be provided with the opportunity to submit additional pictures and any other evidence confirming her friendship with the woman who was killed. The most recent VA treatment records from the VA Medical Center (VAMC) in Asheville, North Carolina are dated in March 2011. On remand, records of any VA psychiatric treatment that the Veteran received since March 2011 should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Also, as the Veteran has received psychiatric treatment from The Pisgah Institute in Asheville, those records should also be updated as the most recent records from that provider are dated in 2008. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder the SSA records pertaining to the Veteran's claim for benefits, to include copies of the decision as well as the medical records used in support of that determination. All attempts to obtain these records should be documented in the claims folder. Efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. Because these are Federal records, if they cannot be located or no such records exist, the Veteran should be notified in writing. 2. After obtaining the appropriate release of information forms where necessary, procure records of post-service psychiatric treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from the Asheville VAMC and from The Pisgah Institute. If any such records identified by the Veteran are not available, she should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 3. Then, a VA psychiatrist or psychologist should review the claims folder, particularly any service records, and determine whether there is evidence that the Veteran had behavioral changes following the claimed assault which indicate that the assault actually occurred. 4. The AMC should then make a determination as to whether it is at least as likely as not that any alleged stressors occurred. 5. If it is concluded that one or more stressors occurred, accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed psychiatric disorder, to include PTSD, major depressive disorder and dysthymic disorder, that she may have. Her claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. Psychological testing should be conducted with a view toward determining whether the Veteran meets the criteria for a diagnosis of PTSD or any other psychiatric disability. The examiner is requested to obtain a detailed history of the Veteran's symptoms since service, review the record, and offer opinions as to the following: A. For any PTSD diagnosed on examination, the examiner should opine as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's PTSD is related to the claimed in-service stressors of military sexual assault and the murder of her friend. The examiner should address the fact that post-service records reveal a history of abuse by her ex-husbands. B. For any psychiatric disability other than PTSD diagnosed on examination, the examiner should opine as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that such diagnosed disability had its clinical onset in service or is otherwise related to service, to include being due to the claimed sexual assault and murder of her friend. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 6. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 7. Then, readjudicate the issue on appeal. If the benefit remains denied, the Veteran and her representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. 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). _________________________________________________ MICHAEL MARTIN 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).