Citation Nr: 1310568 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-02 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a psychiatric disorder, to include anxiety, depression, posttraumatic stress disorder (PTSD) and sleep impairment. REPRESENTATION Appellant represented by: Heather Vanhoose, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from January 1977 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In February 2013, 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 anxiety, depression and sleep problems. 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 his mental condition, whatever that particular disorder may be, causes him. 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 Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND Regrettably, a remand is necessary for further development. 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 his 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 he has a psychiatric disorder that is related to a military sexual assault. He contends that he was knocked unconscious and woke up with blood and semen in the rectum area. See February 2013 Hearing Transcript (T.) at 5. The claimed assault occurred around June 1977. Id. at 11. At the time of the supplemental statement of the case (SSOC) in October 2012, the Veteran's service treatment and personnel records had not been obtained. However, after that, the National Personnel Records Center (NPRC) sent all available copies on microfiche to the RO. The microfiche do not contain complete service treatment records (STRs), but do contain some personnel records. A review of the Veteran's personnel records show that he was absent without official leave (AWOL) from the USS Edison in July 1977 through August 1977. The Veteran's claimed assault occurred while on the USS Edison. T. at 4. The Veteran received nonjudicial punishments in August 1977 and September 1977. A record dated in August 1977 shows that he was recommended for discharge by reason of unsuitability due to apathy. There is no indication in the Veteran's personnel records that he had any disciplinary or behavioral problems prior to July 1977. Since the Veteran's personnel records reflect disciplinary problems after the assault reportedly took place, 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, considering VA's heightened duty to assist as the Veteran's full STRs are unavailable, the Board finds that a remand is necessary so that a VA opinion should be obtained as to whether the evidence, to include going AWOL from July 1977 to August 1977, nonjudicial punishments in August 1977 and September 1977 and the discharge due to apathy, supports his assertion of a sexual assault. The most recent VA treatment records from the VA Community Based Outpatient Clinic (CBOC) in Charleston, West Virginia are dated in September 2012. On remand, records of any VA psychiatric treatment that the Veteran received since September 2012 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, one of the Veteran's VA treatment records indicates that he also seeks treatment from the Charleston Vet Center. On remand, those records should also be obtained. The Veteran testified receiving treatment after service from S.P., M.D. also in Charleston. Those records should also be obtained on remand. Lastly, the Veteran has received psychiatric treatment from L.K., M.D. in Charleston, 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. 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 Charleston CBOC; the Charleston Vet Center; and from Drs. S.P. and L.K. If any such records identified by the Veteran are not available, he 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. 2. Then, a VA psychiatrist or psychologist should review the claims folder, particularly any service records (including the records pertaining to the Veteran going AWOL from July to August 1977, receiving nonjudicial punishments in August 1977 and September 1977 and the discharge due to apathy), and determine whether there is evidence that the Veteran had behavioral changes following the claimed assault which indicate that the assault actually occurred. 3. The AMC should then make a determination as to whether it is at least as likely as not that the alleged stressor occurred. 4. If it is concluded that the stressor occurred, accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed psychiatric disorder, to include anxiety, depression, PTSD and sleep problems, that he may have. His 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 stressor of military sexual assault. The examiner should address the fact that post-service records reveal the Veteran witnessing the accidental shooting death of either his mother or step-mother as a child (some records indicate it was his step-mother, while others indicate it was his mother). 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. 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. 5. 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. 6. Then, readjudicate the issue on appeal. If the benefit remains denied, the Veteran and his 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).