Citation Nr: 1309944 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-43 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to compensation benefits for psychiatric disability, to include posttraumatic stress disorder, as a result of treatment at a VA facility, pursuant to 38 U.S.C.A. § 1151. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from January 1980 to February 1984. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision issued in June 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In October 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge, via videoconference. A transcript of the hearing is associated with the claims file. 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 he developed posttraumatic stress disorder (PTSD) as a result of a sexual assault that occurred during inpatient substance abuse treatment at a VA facility. Upon review of the record, the Board determines that a remand is necessary so that the Veteran may be scheduled for another VA examination to assess the existence and etiology of any psychiatric disability, to include PTSD. In March 2008, a VA examiner found that the Veteran did not have PTSD and diagnosed major depressive disorder. In an addendum dated in June 2008, the same VA examiner opined that the Veteran's major depression was unlikely related to the sexual assault because he had depression for many years prior to the assault. However, the examiner did not address whether the major depression was aggravated by the sexual assault. Additionally, a June 2012 VA opinion was obtained that addressed whether a delay in treatment after the assault caused additional disability and whether such delay was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. This opinion did not discuss the appropriate diagnosis for the Veteran's psychiatric disability, including the more recent VA treatment records that reflect a diagnosis of PTSD. In light of these facts, the Board finds that a remand is necessary to afford the Veteran a VA examination to assess the nature and etiology of his mental health disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to assess the nature and etiology of his psychiatric disability. The claims file must be made available for review, and the examination report should reflect that such review occurred. Upon review of the record, the examiner should respond to the following: a) Identify all diagnoses appropriate to the Veteran's psychiatric symptoms. The examiner should address how the symptoms meet the criteria for the diagnosis under the DSM-IV. See 38 C.F.R. § 4.125. If the examiner determines that a diagnosis of PTSD is not supported by the Veteran's symptomatology, the examiner must discuss the inconsistency of that finding with the VA and private treatment records proffering a diagnosis of PTSD. b) The examiner must opine as to whether it is it at least as likely as not that the Veteran's depression was aggravated, i.e., increased beyond normal progression, as a result of the sexual assault in January 2006 or otherwise the result of treatment by VA during and after that event? c) If the examiner finds that the Veteran has an additional psychiatric diagnosis not present prior to the sexual assault in January 2006, is it at least as likely as not that the disability was incurred as a result of the sexual assault or is otherwise the result of treatment by VA during and after that event? d) If the answer to b) and/or c) is positive, i. Discuss whether the event or circumstances that led to the additional disability were at least as likely as not the result of failure by VA to exercise the degree of care that would be expected of a reasonable health care provider, to include carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing treatment. ii. Discuss whether it is at least as likely as not that the event or circumstances were reasonably foreseeable. (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 conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A complete rationale for any opinion advanced must be provided. 2. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of his claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). _________________________________________________ U. R. POWELL 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).