Citation Nr: 1308928 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 08-39 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and panic disorder. 2. Entitlement to an initial rating greater than 30 percent, for the period prior to December 5, 2011, and an evaluation greater than 40 percent disabling, for the period beginning December 5, 2011, for chronic cervical spine strain. 3. Entitlement to an initial rating greater than 10 percent, for the period prior to December 5, 2011, and an evaluation greater than 40 percent disabling, for the period beginning December 5, 2011, for chronic thoracic spine strain. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from October 1990 to May 1993, and thereafter served in the Army National Guard from May 1993 to June 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran had a hearing before the Board in August 2011 and the transcript is of record. This case was previously before the Board in November 2011 when it was remanded for further development. Subsequently, in September 2012, the RO issued a rating decision granting service connection for fibromyalgia. As the Veteran has not appealed either the rating or effective date assigned to this disability, the RO's decision represents a complete grant of the Veteran's appeal on this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In a September 2012 rating decision the RO increased the rating for the Veteran's chronic cervical spine strain to 40 percent disabling, effective December 5, 2011, and increased the rating for the Veteran's thoracic spine strain to 40 percent disabling, effective December 5, 2011. Although each increase represents a grant of benefits, a decision awarding a higher rating, but less that the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, these matters continue before the Board. The Board recognizes that the RO initially developed and adjudicated the psychiatric claim as entitlement to service connection for PTSD. Subsequently, the RO adjudicated the claim as entitlement to service connection for PTSD and MDD. However, the evidentiary record also includes references to panic disorder. While this appeal was pending, the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record, not merely the diagnosis mentioned by the claimant. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). In compliance with the Court's holding in Clemons, the Board has recharacterized issue as reflected on the first page of the present decision. The issues of entitlement to an initial rating greater than 30 percent, for the period prior to December 5, 2011, and an evaluation greater than 40 percent disabling, for the period beginning December 5, 2011, for chronic cervical spine strain, and entitlement to an initial rating greater than 10 percent, for the period prior to December 5, 2011, and an evaluation greater than 40 percent disabling, for the period beginning December 5, 2011, for chronic thoracic spine strain are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A diagnosis of PTSD based on a claimed in-service stressor has been offered. 2. A diagnosis of MDD and panic disorder based upon the Veteran's active service has been offered. 3. Credible supporting evidence that the claimed in-service stressor occurred has been submitted. 4. Credible supporting evidence that the Veteran's MDD and panic disorder are related to the Veteran's active service has been submitted. CONCLUSION OF LAW PTSD with MDD and panic disorder was incurred in active service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). For certain chronic disorders, to include psychosis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of 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 claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The law provides that "[i]f the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor." 38 C.F.R. § 3.304(f)(2). Where, however, VA determines that the Veteran did not engage in combat with the enemy, or that the Veteran did engage in combat with the enemy but the claimed stressor is unrelated to such combat, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the reported stressor. Instead, the record must contain evidence that corroborates the Veteran's testimony as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f); West v. Brown, 7 Vet. App. 70, 76 (1994). Further, there are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(4) , provides that PTSD based on a personal assault in service permits evidence from sources other than the Veteran's service records which may corroborate his or her 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. 38 C.F.R. § 3.304(f)(4). VA's Adjudication Procedures Manual (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. 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. 38 C.F.R. § 3.304(f)(4). It is important to note that, for personal assault PTSD claims, an after-the-fact medical opinion can also serve as the credible supporting evidence of the reported stressor. Patton v. West, 12 Vet. App. 272, 280 (1999). Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) expressly held in Menegassi v. Shinseki, 638 F.3d. 1379 (Fed. Cir. 2011), that, in PTSD cases where the alleged in-service stressor is a sexual assault, "under 38 C.F.R. § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether occurrence of the stressor is corroborated." Accordingly, the Federal Circuit held that favorable medical opinions that diagnose PTSD must be weighed against all other evidence of record for purposes of determining whether a claimed in-service sexual assault has been corroborated. 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. In addition, 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)(4). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD, MDD, and panic disorder. The Veteran contends that her current psychiatric disorder is related to personal assault in service. She reports that she was threatened, verbally abused, and frightened by her roommate while stationed in Germany. She reports that she was required to go out in the field for a month or two and at that time would be the only female with up to three battalions of men. She indicates that she was not allowed to go anywhere without an escort or "guard." She reports that she was cornered by guys all the time, groped, and sexual innuendos and jokes were made. She reports that she had a hard time sleeping in service because there were guys in the room and she was not comfortable. She states that she was always blamed for problems with vehicles that she worked on, even if she did not work on the exact problem area. She reports that she was written up for bad performance and that even if she could identify who had done the deed it would be insisted that it was her. She reports that her requests for transfer and complaints were "lost." She states that she was told that she had stress disorder and that the symptoms have continued since service and had gotten worse. She has indicated that that she had sleep problems, depression, headaches, body aches, anxiety attacks, etc. The Veteran reports that she has indentified VA records of emergency or normal clinic calls that had no reason for health problems complained about and the same issue with Kaiser. Service treatment records do not reveal any complaint, diagnosis, or treatment for any psychiatric disorder. Service personnel records that have been associated with the claims file do not reveal any complaints or requests for transfer or poor evaluations. In a February 1997 rheumatology note for fibromyalgia, the Veteran was noted to have had quite a stressful period while in the military. However, she stated that she does not dwell on the past and cannot see what the connection is between her military experience and her current symptomology. In the assessment it was noted that reviewing the Veteran's history there clearly were major stressors while she was in the military in Germany. The provider reported that this was not gone into any further as it was felt that the Veteran should be formally evaluated by psychology colleagues to fully rule out stress-related or primary psychological problems rather than labeling her condition all a physical disorder. In a September 1998 assessment it was indicated that "we should talk about any sexual abuse or harassment in the past." In August 1999 the Veteran was noted to have negative depression and PTSD screenings. In October 2001 the Veteran was noted to be positive for military sexual trauma (MST) with no desire to initiate a new mental health referral. In December 2007 the Veteran underwent a private examination. She reported that while posted in Germany she was under a constant threat of rape by her fellow military personnel. She stated that there was a high incidence of rape during her deployment at her particular base and that she was accompanied by armed escort throughout her time there. She described an environment of being in constant fear for her safety, stating "there was no safe place for me for those 2 years." The Veteran reported that since she returned to the United States she experienced what appeared to PTSD symptoms. The symptoms reported were inability to sleep without locking her bedroom door, a fear of loud and crowed areas, hyper-reactivity to loud noises or perceived aggressive men, difficulty with sleeping, nightmares, and avoidance of situations in which she is likely to remember her time in Germany. She reported disruption in her relationships and her work life. When asked why she came to the clinic, she stated that her VA advocate thought she had PTSD and that she just wanted to take care of all this. She stated that she has experienced the symptoms for many years and that she manages them because otherwise she would not make it. She reported that the symptoms were worsening since she was under more pressure at work. She indicated that this was the first time she had ever sought psychotherapy. After examination the Veteran was diagnosed with PTSD, rule out major depressive disorder, and rule out panic disorder without agoraphobia. The private examiner stated that the Veteran met the criteria for PTSD due to the symptoms of exposure to events that involved threat to physical integrity of self and others, an intense fear and sense of hopelessness, intense psychological distress at exposure to external cues, efforts to avoid thoughts, activities, and relationships with others, as well as difficulty falling and staying asleep, and an exaggerated startle response. The examiner stated that given her history and reported symptoms, the Veteran should also be assessed for a diagnosis of major depressive disorder and panic disorder. In April 2008 the Veteran was afforded a VA Compensation and Pension (C&P) examination. The Veteran was noted to be receiving psychotherapy to treat her mental disorder and that she had been diagnosed with PTSD, rule out MDD, and rule out panic disorder. The Veteran reported symptoms of depression and anxiety, with adjustment issues related to her current job assignment in security operations. She reported ongoing anxiety and depression, with sleep disturbance noted. She was noted to have been honorably discharged with no disciplinary infractions or adjustment problems. The Veteran was noted to be working full-time in security, although she indicated that there was some ongoing stress in her job situation. She was involved with family and friends. She had some continuing symptoms of anxiety and depression and had initiated counseling to deal with these symptoms. She reported some limitations in her daily activities due to anxiety and depression. The Veteran reported being subject to harassment and an ongoing tense work situation at her duty station in service. She had recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions, and intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. She demonstrated efforts to avoid activities, places, or people that arouse recollections of the trauma. She had feelings of detachment or estrangement from others. The Veteran was noted to have difficulty falling or staying asleep, difficulty concentrating, and hypervigilance. The symptoms were noted to be chronic. This Veteran endorsed post-traumatic symptoms. The examiner noted that some of her reported symptoms may also be associated with clinical depression. She did not report any periods of remission. She also reported impairment in dating relationships in that she feels unable to sustain a close relationship over time. The examiner noted that it was not clear whether or not the described events are fully consistent with the criteria for PTSD, as the Veteran primarily described a hostile work environment, with precautions taken to assure her safety in the field. She recounted harassment during military service; working in dangerous work locations and being accompanied during all activities. She described sleeping in the field in a truck with male soldiers present. She also described threatening behavior and harassment by a female roommate at the same duty station. She reported that she "never felt safe at any time" during her assignment in Germany. After examination and testing the Veteran was diagnosed with major depression, recurrent. The Veteran was noted to have filed an initial claim for PTSD related to harassment during military service. The examiner summarized that the Veteran reported ongoing stressful work situation when based in Germany, harassment by a female roommate, and being accompanied by another member of her unit at all times because of the danger inherent in her assignment. The examiner rendered the opinion that based on the current evaluation and a review of the record, this Veteran has a psychiatric condition (Major Depression, recurrent) with likely onset during her period of military service. The rationale provided was that the Veteran reported onset of symptoms of anxiety and depression during this time and continued to experience ongoing symptoms of clinical depression. The examiner stated that the stress in her work environment contributed to her clinical depression. The Veteran was diagnosed with anxiety and depression in March 2009. In March 2009 the Veteran underwent a psychiatric evaluation. She reported that she had been depressed since the 90's when she was stationed in Germany. As a tank mechanic she went into the field where she was the only female among 3,000 men. She reported having to have a guard for safety against attacks by the men. She said she was not assaulted but she was grabbed and had unwanted kisses from men. She reported she had no privacy because of her "bodyguard" and that when he was not around, men subjected her to harassment. She stated that she complained about sexual harassment but the papers "got lost." She reported that she continues to suffer from the sexual harassment. A recent "episode" had been the worst and she did not want to do anything, did not want to leave her house, cannot sleep, took sleeping pills, Tylenol PM, and drank 2 shots of whiskey. Her sleep was erratic one to fifteen hours. She had memory/concentration problems, anxiety, and tried to get 8 hours of sleep. The Veteran reported that she was born in Vietnam and was taken out of Vietnam in 1975. She was diagnosed with rule out PTSD from military sexual trauma and war in Vietnam. In April 2009 the Veteran was noted to have anxiety and depression. In January 2010 the Veteran reported that she experienced real happiness prior to the Army, which changed her ability to trust. In March 2010, June 2010, and July 2010 the Veteran was diagnosed with anxiety and depression. In August 2010 the Veteran underwent a psychiatric evaluation. The Veteran stated that she had symptoms of PTSD, depression and panic attacks dating and relating to experience of sexual harassment and injury in the military. Symptoms had worsened in the past two years related to worsening health, loss of employment, and financial pressures (large debt load, limited income). The provider noted that she reported nearly all symptoms of PTSD and met criteria for PTSD assuming the veracity of her reported in service stressors. Her score on PCL-c (a self report scale capture info regarding symptoms and severity of symptoms of PTSD) was 81, consistent with severe PTSD. She reported all symptoms of depression. Though she denied recent thoughts of suicide or wishes for death she has had chronic, intermittent fleeting suicidal ideation with plan to overdose (OD) when health and social circumstances worsen. However, she denied intent for self harm due to connection to family/friends and spiritual beliefs. The Veteran was noted to own a firearm for self protection but indicated that she would not use it on herself and declined to remove it from the home. She also declined to remove medications she could potentially use for an OD from the home as she denied she would ever try to harm herself. The Veteran had no previous suicide attempts. She denied homicidal ideation. She declined development of a formal suicide safety plan. The provider noted that the Veteran's score on PHQ-9 was 16, consistent with moderately severe depression. The Veteran denied symptoms of mania or psychosis. She was noted to have had panic symptomatology dating back to her experiences of harassment in Germany. She had episodes of sudden onset with: severe anxiety, chest tightness, sweatiness, flushed feeling, tingling sensation through her body, palpitations, and a feeling of something bad about to happen and a need to escape, lasting 5 to 30 minutes at a time, often coming on in a crowd. The Veteran was noted to avoid being in crowds to avoid panic symptoms. After examination the Veteran was diagnosed with PTSD, related to military trauma, mood disorder due to her general medical condition (GMC) (pain), panic disorder, and alcohol abuse. It was noted that the PTSD diagnosis was provisional dependent upon VBA review of her military history. The provider restated that the Veteran had PTSD, chronic depression due to GMC (pain), and panic disorder, dating and relating to trauma and injuries in the military and worsening recently in response to worsening pain, loss of employment, financial pressures and need to give up nearly all possessions. At a hearing before the undersigned Veterans Law Judge in August 2011 the Veteran reported that she would have a guard while she was in the field in Germany. She reported that she lived with six men in a truck while in the field and she was groped. The Veteran stated that she was not raped but that there were a couple of times where guys had to be pulled off of her. She reported that her roommate threatened her. She stated that she requested transfers and that every time she requested a transfer she got a counseling session for poor performance. The Veteran reported that when she returned to the United States she did not seek treatment immediately but eventually started treatment in 2004. She indicated that she received treatment from VA. The Veteran reported that she was in a motor vehicle accident in service and that she continues to have nightmares of that incident. The Veteran stated that after service she suppressed her symptoms but that eventually she could not deal with it any longer. She could not handle being in crowds. She stated that she was becoming a hermit. Lay statements from the Veteran's acquaintances reveal that the Veteran did not speak about her time in the military often or easily. She was noted to struggle to trust people, to be in crowded situations, and to feel safe in certain situations. She was noted to be guarded of herself in relationships. In one statement the Veteran was reported to be more introverted and less social than the person he knew. In November 2009, January 2010, and March 2010 it was noted that the Veteran was not ready to discuss her experiences and declined a referral to group or the Vet Center. In September 2010 the Veteran was diagnosed with chronic pain with underlying depression. In October 2010, November 2010, January 2011, March 2011, June 2011, July 2011, September 2011, December 2011, April 2012, and June 2012 the Veteran was diagnosed with PTSD related to military trauma, provisional diagnosis dependent upon VBA review of military history, mood disorder due to general medical condition of pain, panic disorder, and alcohol abuse. In December 2011 the Veteran was afforded a VA C&P examination. The Veteran was noted to be diagnosed with PTSD, chronic, panic disorder with agoraphobia, and major depressive disorder, recurrent, severe, without psychotic features. The examiner noted that symptoms could be distinguished between the different diagnoses. For PTSD the Veteran's symptoms were noted to be thoughts about a traumatic event that included actual threatened serious injury, intense fear when thinking about the trauma, re-experience of the events in a distressing way, or avoiding things that reminded her of the event, having to avoid thinking about the event, trouble recalling some important part of what happened, becoming less interested in hobbies or social activities, feeling detached or estranged from others, feeling being numbed, feeling that her life would be shortened because of the trauma, difficulty sleeping, feeling irritable, difficulty concentrating, feeling nervous or constantly on guard, and being easily startled. The problems interfered with social activities and cause significant distress. For the Veteran's panic disorder, her symptoms were spells when suddenly felt anxious, frightened or uneasy in situations when most people would not feel that way, spells that come on unexpectedly, persistent fear of having another attack/spell, skipping, racing or pounding of her heart, sweating or clammy hands, trembling or shaking, shortness of breath or difficulty breathing, choking sensation or lump in her throat, chest pressure or pain or discomfort, nausea, stomach problem, feels dizzy, lightheaded, things seem unreal, strange or detached, fear of losing control or going crazy, tingling or numbness in parts of her body, hot flushes or chills, and have attacks repeatedly followed by fear of having another attack. For the Veteran's major depression, her symptoms were depressed or sad mood most of the day, nearly every day; diminished interest of pleasure in all, or almost, all, activities most of the day, nearly every day; significant weight gain; insomnia nearly every day; psychomotor agitation or retardation nearly every day; fatigue or loss of energy nearly every day; feelings of worthlessness or excessive or inappropriate guilt nearly every day; diminished ability to think of concentrate, or indecisiveness, nearly every day; and recurrent suicidal ideation. Her symptoms were noted to cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Veteran was noted to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Each of the Veteran's disorders were noted to be quite severe and to result in diminished level of social and occupational functioning. In the opinion of the provider each set of symptoms simply lowered the level of occupational and social impairment in an additive manner, and therefore could not be "split apart." In regard to the Veteran's experience in service, the provider noted that the Veteran experienced intermittent and ongoing sexual harassment and sexual advances while in service. This stressor was noted to meet the criteria for PTSD. After service the Veteran was noted to initially think she was "going to be allright" but developed severe psychiatric symptomatology that caused her to cease working as a security guard one and one half years prior. The Veteran was noted to have gotten married one year prior and to describe the relationship as positive and intimate. The Veteran was noted to be an "honors student" in high school. However, she has been unable to work because of recurring panic attacks and agoraphobia. She started mental health treatment in 2007. She discontinued treatment three months prior because she thought she was better but since she had become extremely symptomatic and was going to return to psychiatric care in the week following the treatment note. The Veteran reported being quite fearful and to keep a pistol by her bedside and in her car. In December 2012 a VA physician rendered an opinion based upon review of the claims file. In the report the physician summarized the findings of the prior VA medical examination reports. The physician rendered the opinion that the Veteran's claimed mental disorders, diagnosed as PTSD, major depression, recurrent, and panic disorder, were less likely than not (less than 50 percent probability) incurred in or caused by or aggravated by the claimed in-service injury, even, illness, to include in-service sexual harassment. It was the opinion of the physician that the Veteran's mental disorders are less likely than not proximately due to or the result of the Veteran's service-connected conditions including temporomandibular joint dysfunction, muscle contraction headaches associated with temporomandibular joint dysfunction, fibromyalgia associated with cervical strain, thoracic spine strain associated with temporomandibular joint dysfunction, cervical strain associated with temporomandibular joint dysfunction, chronic tendonitis of the left wrist, tinnitus, and bilateral hearing loss. The rationale provided was that the Veteran was not evaluated or treated for mental disorder, including symptoms of depression, panic disorder, or PTSD while on active duty and she received only family counseling prior to entering the service related to the brother. The Veteran provided a history of suffering sexual harassment while on active duty; however, the Veteran's statements are unsubstantiated. It was noted to be fully appreciated that the Veteran is 100 percent service connected and is only seeking ongoing medical care for her mental disorders. The examiner noted that what is medically substantiated is a significant motor vehicle accident with the Veteran hospitalized in Germany after a car accident. The examiner noted that the MVA accounts for many of the Veteran's on-going physical conditions. The Board finds that entitlement to service connection for PTSD with major depressive disorder and panic disorder is warranted. The Veteran's service treatment records do not reveal any complaint, diagnosis, or treatment for any psychiatric disorder. In addition, service personnel records that have been associated with the claims file do not reveal any complaints or requests for transfer or poor evaluations. However, the Veteran has competently and credibly reported that she was harassed in service. In addition, the Veteran has competently and credibly reported that she has had symptoms of a stress disorder since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Although there is no evidence of the Veteran's reported sexual harassment in her service treatment records or any indication of poor performance appraisals or requests to be transferred in the service personnel records associated with the claims file, evidence of record associates the Veteran's PTSD, major depressive disorder, and panic disorder with the Veteran's active service. In February 1997, less than four years after separation from active duty, the Veteran was noted to have had a stressful period while in the military and that there were clearly major stressors while she was in the military in Germany. The provider noted that the Veteran should be formally evaluated by psychology colleagues. As early as October 2001 the Veteran was noted to be positive for MST. After a private medical examination in December 2007 the Veteran was diagnosed with PTSD, rule out major depressive disorder, and rule out panic disorder without agoraphobia. The private examiner stated that the Veteran met the criteria for PTSD due in part to the symptoms of exposure to events that involved threat to physical integrity of self and others. The examiner also stated that the Veteran should also be assessed for a diagnosis of major depressive disorder and panic disorder. After examination by VA in April 2008 the Veteran was diagnosed with major depression, recurrent. The examiner rendered the opinion that based on the current evaluation and a review of the record, this Veteran has a psychiatric condition (Major Depression, recurrent) with likely onset during her period of military service. The rationale provided was that the Veteran reported onset of symptoms of anxiety and depression during this time and continued to experience ongoing symptoms of clinical depression. The examiner stated that it is likely that the onset of her clinical depression was during the period of her military service, and that the stress in her work environment contributed to her clinical depression. After examination in August 2010 the Veteran was diagnosed with PTSD, related to military trauma, mood disorder due to her general medical condition (GMC) (pain), panic disorder, and alcohol abuse. It was noted that the PTSD diagnosis was provisional dependent upon VBA review of military history. However, the provider stated that the Veteran had PTSD, chronic depression due to GMC (pain), and panic disorder, dating and relating to trauma and injuries in the military and worsening recently in response to worsening pain, loss of employment, financial pressures and need to give up nearly all possessions. Several VA treatment notes indicate that the Veteran is diagnosed with posttraumatic stress disorder, related to military trauma, provisional diagnosis dependent upon VBA review of military history, mood disorder due to general medical condition of pain, panic disorder, and alcohol abuse. Upon examination in December 2011 the Veteran was noted to be diagnosed with PTSD, chronic, panic disorder with agoraphobia, and major depressive disorder, recurrent, severe, without psychotic features. The examiner noted that the Veteran had the stressor of ongoing sexual harassment and exposure to attempts at physical sexual assault while in service and that this stressor was met the criteria for PTSD. As noted above, in PTSD cases where the alleged in-service stressor is a sexual assault, "under 38 C.F.R. § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether occurrence of the stressor is corroborated." Menegassi v. Shinseki, 638 F.3d. 1379 (Fed. Cir. 2011). The Board acknowledges the December 2012 VA medical opinion which noted that the Veteran's diagnosed PTSD, major depression, recurrent, and panic disorder were less likely than not incurred in or caused by or aggravated by the claimed in-service injury. However, the Board notes that the rationale provided, at least in part, impermissibly rely on a lack of recorded evidence of any in service treatment. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). As such, the Board finds the December 2012 less probative that the other examination reports of record. As the Veteran has competently and credibly reported that she was sexually harassed in service and as medical examiners have associated the Veteran's current PTSD with the Veteran's sexual harassment in service, have opined that the Veteran's major depressive disorder had its onset in service, and have determined that the Veteran's mood disorder is related to her general medical condition, pain, the Board finds that the evidence is at least in equipoise that the Veteran's PTSD with major depressive disorder and panic disorder is related to her active duty service. As such, entitlement to service connection for PTSD with major depressive disorder and panic disorder is granted. ORDER Service connection for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) and panic disorder is granted. REMAND In December 2011 the Veteran submitted a statement from a private chiropractor (Dr. M.C.) dated in November 2011 indicating that he had treated the Veteran's back and neck disabilities since September 2011 and that the Veteran required continual care. Review of the claims file does not reveal that any treatment records from Dr. M.C. have been obtained and associated with the claims file. Review of the claims file reveals in June 2007 that the Veteran was authorized for outpatient orthopedic treatment and in August 2007 that the Veteran was treated by a naturopathic chiropractor reported. A VA treatment record dated July 2, 2007, reveals that the Veteran underwent a non-VA emergency department examination and that the records were scanned. There is a notation in the claims file in July 2010 that outside treatment records were scanned and available in CPRS. In addition, an October 4, 2011, VA treatment note indicates that outside treatment notes from OHSU were scanned into the medical records. However, these records are not associated with the claims file for review. In VA treatment records dated in June 2006, June 2010, and December 2010, the Veteran was noted to have received treatment from Kaiser. These records report that the Veteran was prescribed Oxycodone and was afforded electromyography to evaluate the Veteran for numbness and tingling of the hands and feet. The Veteran was also afforded a nerve conduction study. Records from Kaiser regarding these dates of service have not been associated with the claims file. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1). Accordingly, after obtaining adequate authorization, attempts must be made to obtain complete treatment records regarding the Veteran from Kaiser and Dr. M.C.. In addition, appropriate action must be taken to associate scanned outside of VA treatment records with the claims file. Since the claims file is being returned it should be updated to include VA treatment records compiled since January 2013. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, if and only if additional treatment records are obtained and associated with the claims file, afford the Veteran another VA examination regarding severity of her cervical and thoracic spine disabilities. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). The Court has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here the Veteran has been awared TDIU, effective May 29, 2010 to December 5, 2011 and is in receipt of a 100 percent schedular evaluation beginning December 5, 2011. As the Veteran has reported at a December 2011 VA examination that she stopped working one and a half years prior, the Board finds that the record has not raised a claim of entitlement to TDIU for the period prior to May 29, 2010. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain VA medical records pertaining to the Veteran that are dated since September 2012. 2. Take all appropriate action to associate with the claims file all previously scanned outside of VA treatment records. 3. After securing the proper authorization, request treatment records pertaining to the Veteran from Kaiser and Dr. M.C.. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 4. Thereafter, if an only if additional records have been associated with the claims file, schedule the Veteran for a VA spine examination to determine the current degree of severity of her chronic cervical spine strain and chronic thoracic spine strain. The claims file must be made available for review and the examiner's report should reflect that such review occurred. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, in detail. Any indicated diagnostic tests and studies must be accomplished. As to all information and opinions, a complete rationale must be provided. The examiner should describe any signs and symptoms associated with the Veteran's chronic cervical spine strain and chronic thoracic spine strain. Such description should include whether there is any evidence of favorable or unfavorable ankylosis of the cervical and/or thoracic spine. The examiner should also determine the range of motion of the Veteran's cervical and thoracic spine, in degrees, providing the degree at which pain is noted in each plane of motion. It should also be determined whether any weakened movement, excess fatigability, incoordination, flare ups, or repeated use results in further limitation of motion, and if so, the degree of additional range of motion loss or favorable or unfavorable ankylosis. It should also be noted whether the Veteran has intervertebral disc syndrome; if so, the examiner should state whether the Veteran experiences incapacitating episodes, as defined by 38 C.F.R. § 4.71, and the frequency and total duration of such episodes over the course of the past 12 months. The examiner should also identify any neurological impairment(s) associated with the Veteran's cervical spine and/or thoracic spine and describe any symptoms and functional limitations associated with such impairment(s). 5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated, to include all evidence received since the last (supplemental) statements of the case. If the claims remain denied, the Veteran and her representative should be issued another supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs