Citation Nr: 1308765 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 09-35 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a bilateral leg disorder. 3. Entitlement to service connection for an acquired psychiatric disorder, to include depression. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran was scheduled for a hearing before the Board in July 2011; however, she did not appear for that proceeding. The Veteran has not requested that the hearing be rescheduled, nor has she provided good cause. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702 (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 observes that the issue of entitlement to service connection for a psychiatric disorder was initially adjudicated as entitlement to service connection for depression. However, the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for one psychiatric disorder encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App 1 (2009). In this case, the Veteran has been assessed as having various diagnoses, including depression, dysthymic disorder, adjustment disorder with anxiety, and posttraumatic stress disorder (PTSD). Therefore, the Board must remand the issue of entitlement to an acquired psychiatric disorder for development and adjudication. Moreover, the Veteran has specifically claimed that she developed a psychiatric disorder due to military sexual trauma. As explained above, her claim for service connection for depression also encompasses a claim for service connection for PTSD. The Board notes that VA has established special procedures for evidentiary development in cases of PTSD due to personal assault. Specifically, the RO must consider all of the special provisions of VA Adjudication Procedure Manual M21-1MR (M21-1MR), Part IV, regarding personal assault. M21-1MR notes that personal assault is an event of human design that threatens or inflicts harm. Examples of personal assault include rape, physical assault, domestic battering, robbery, mugging, stalking, and harassment. M21-1MR, Part IV, Subpart ii, 1.D.17.a. M21-1MR also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1MR, Part IV, Subpart ii, 1.D.17.g. When there is no indication in the military record that a personal assault occurred, alternative evidence, such as behavior changes that occurred at the time of the incident, might still establish that an in-service stressor incident occurred. Examples of behavior changes include a request to be transferred to another military duty assignment, deterioration in work performance, substance abuse, episodes of depression, panic attacks, anxiety without an identifiable cause, or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5); see Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21 manual evidentiary procedures apply in post-traumatic stress disorder personal assault cases). Applicable regulations specifically provide that VA will not deny a claim for service connection for PTSD 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 may also 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)(5) (2012). In this case, the Veteran was not provided a notice letter advising her of VA's special evidentiary development procedures in case involving personal assault. Therefore, the Board finds it necessary to remand the Veteran's claim so that she may be afforded a proper notice letter. In addition, the Board notes that a November 2010 treatment record indicates that the Veteran reported receiving treatment at the Bronx VA Medical Center; however, there are no treatment records from that facility associated with the claims file. As such, it appears that there may be outstanding VA medical records. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the RO should take this opportunity to obtain and associate any outstanding treatment records pertinent to the Veteran's claimed disorders. Finally, the Board notes that the Veteran was scheduled for a VA examination in March 2011, but the record indicates that she failed to appear for that examination. Such an examination may have provided the evidence necessary to support her claims. Given that the case is already being remanded, the Board will provide the Veteran another opportunity to undergo VA examinations to determine the nature and etiology of her claimed disorders. The Board reminds the Veteran that the "duty to assist is not always a one-way street," and she has an obligation to actively participate in the retrieving of any information pertinent to her claim, to include attending scheduled VA examinations and identifying relevant records. She is expected to cooperate in the efforts to adjudicate the claims, and her failure to do so would subject her to the risk of an adverse adjudication based on an incomplete and underdeveloped record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). Pursuant to 38 C.F.R. § 3.655 (2012), failure to appear for a scheduled VA examination and/or identify relevant records may detrimentally affect the claim because the subsequent adjudication will be based solely on the evidence of record Accordingly, the case is REMANDED for the following action: 1. The RO should develop the Veteran's claim for service connection for a psychiatric disorder, including all necessary notification and assistance. A notice letter should be sent to the Veteran in connection with that claim informing her of the evidence necessary to substantiate the claim and of the division of responsibilities in obtaining such evidence. The letter must comply with the special provisions of the VA Adjudication Procedure Manual M21-1MR, Part IV, regarding personal assault, including notification of the alternative sources of evidence the Veteran may submit or evidence of behavioral changes that may support her claim. 38 C.F.R. § 3.304(f)(5). After completing all appropriate development, the RO should adjudicate the claim in accordance with Clemons v. Shinseki, 23 Vet. App 1 (2009). 2. To the extent that the Veteran indicates the existence of any alternative sources of evidence or the RO determines that such sources may exist, the RO should request any potentially relevant documents from the appropriate source(s). The RO/AMC should review the file and attempt to verify the Veteran's alleged in-service stressors to the extent possible. 3. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for her claimed disorders. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. A specific request should be made for any outstanding VA medical records, including records from the Bronx VA Medical Center. 4. The Veteran should be scheduled for a VA examination to determine the nature and etiology of any and all headaches that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, and assertions. It should be noted that the Veteran was assessed as having tension headaches during her military service in September 1985 and also reported having headaches when she was treated for sinus congestion. The examiner should also review the lay statements attesting to the fact that the Veteran has had headaches since she was in service. It should be noted that the Veteran and other laypersons are competent to attest to observable symptomatology and matters of which they have first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran currently has headaches that manifested in service or are otherwise causally or etiologically related to the Veteran's military service, including her symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. The Veteran should be scheduled for a VA examination to determine the nature and etiology of any bilateral leg disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, and assertions. It should be noted that the Veteran fell off a ladder during her military service in June 1979 and sustained a hematoma to the right leg. Her post-service medical records also document treatment for restless leg syndrome. It should be noted that the Veteran is competent to attest to observable symptomatology and matters of which she has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify all current bilateral leg disorders. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service, including her injury in June 1979. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. The Veteran should be scheduled for a VA examination to determine the nature and etiology of any psychiatric disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include psychological testing including PTSD sub scales. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, and assertions. The Veteran has claimed that she suffered military sexual trauma, and she has submitted lay statements to support her claim. It should be noted that the Veteran and other laypersons are competent to attest to observable symptomatology and matters of which they have first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders other than PTSD. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service, including the alleged military sexual trauma. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) Regarding PTSD, the RO should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any personal assault he or she determines to have occurred in service may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. If there is a verified stressor or if he or she determines that a personal assault occurred in service, the examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including personal assault. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 7. After completing the above actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 8. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). _________________________________________________ JESSICA J. WILLS 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).