Citation Nr: 1311935 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 05-35 797A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to compensation for a penile deformity pursuant to 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active service from August 1972 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2009, the Veteran testified at a videoconference hearing before a Veterans Law Judge concerning the issue of entitlement to service connection for an acquired psychiatric disorder, and a transcript of that hearing has been associated with the claims file. The matter was remanded for additional development in November 2009. In December 2010, VA notified the Veteran that the Veterans Law Judge who conducted his July 2009 videoconference hearing was no longer with the Board, and offered him the opportunity to have an additional hearing before a different Judge. Subsequently, a second hearing was conducted in October 2011 before a different Veterans Law Judge. A transcript of that hearing is of record and has been associated with the claims file. In March 2012, VA notified the Veteran that the Veterans Law Judge who conducted his October 2011 videoconference hearing had also left the Board. The Board offered him the opportunity to have another hearing before another Veterans Law Judge who would then adjudicate the issue on appeal. In January 2013, the Veteran testified before the undersigned; a transcript of that hearing is associated with his Virtual VA electronic record. 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 Veteran's claim of entitlement to service connection for an acquired psychiatric disorder must be remanded to obtain a clarification of nexus opinion provided in the May 2010 psychiatric examination report. The May 2010 examiner diagnosed the Veteran with posttraumatic stress disorder (PTSD). In addressing whether it was at least as likely as not that any current psychiatric disorder, to include PTSD, began during service or was causally linked to any incident during active duty, to include an alleged sexual assault, the May 2010 examiner stated, "[y]es. . . . [It] is as least as likely as not (50/50 probability) caused by or a result of Depression and PTSD symptoms." While the Board recognizes that the report included a positive nexus opinion, the rationale offered is insufficient to render the opinion probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). As such, the May 2010 report must be sent back to that examiner, if he is available, to obtain an adequate rationale in support of the opinion. In remanding this matter to the examiner, the Board finds sufficient evidence to hold that it is at least as likely as not that the "alleged" in-service sexual assault, upon which the Veteran bases his claim for service connection, actually occurred. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); 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). The Veteran's current claim is based solely on an allegation that he was subjected to a sexual assault during service. Specifically, he claims that in 1974, he was sexually assaulted by a man in a hotel room while stationed in Okinawa, Japan. The Veteran has not alleged, and the evidence does not suggest, that he engaged in combat with the enemy or that his alleged stressor was combat related. As such, credible evidence corroborating the occurrence his claimed in-service stressor is required. Although there is no documentation of this assault in his service treatment records or personnel records, and while he did not inform anyone of the assault until 2004, that lack of contemporaneous evidence is not fatal to his claim. In cases involving allegations of sexual assault, it is not unusual for there to be an absence of service records documenting the events of which the Veteran alleges. See Patton v. West, 12 Vet. App. 272, 281 (1999). Applicable regulations reflect a recognition that service records may not contain evidence of personal assault, and that alternative sources may provide credible evidence of an in-service stressor premised on personal assault. 38 C.F.R. § 3.304(f)(3). If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's 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; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 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. Id. (emphasis added). The Veteran has consistently informed VA of the circumstances of the in-service rape that occurred in 1974. (The Board notes that the May 2010 examination report reflects an incident date of 1978; that single discrepancy is not sufficient to detract from the Veteran's credibility concerning the date of the attack, considering his consistency throughout the rest of the appeal concerning the 1974 timeframe. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995)). A letter from his mother, the only person he has ever informed of the matter, confirms that he first told her about the assault in 2004 when he was hospitalized for unrelated medical concerns. Most importantly, the Veteran's service treatment records reflect that twice in 1974 - once in February, and again in March - he tried to commit suicide by overdosing on Darvon, a prescription drug. Those suicide attempts, well documented in the service treatment records with notations of the Veteran's depression with regard to situational concerns, suggest changes in behavior and episodes of depression, the type of evidence that under 38 C.F.R. § 3.304(f)(3) may be considered as corroborating that an in-service personal assault occurred. Although the Veteran provided various explanations for the overdoses at the time of his in-service hospitalization, the Board finds it reasonable, for the same reasons that he refrained from informing anyone about the assault until 2004, that he did not tell the examiners at that time that he was a rape victim. The Board believes that there is no additional development that would provide evidence one way or the other concerning whether the claimed in-service personal assault occurred. As the evidence is at least in equipoise on the question of whether the assault occurred, considering the benefit of the doubt doctrine, the Board finds that it is at least as likely as not that the Veteran was a victim of military sexual trauma during his active duty. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As such, the examiner providing the nexus opinion must consider the occurrence of the in-service sexual assault as established. Additionally, the Board notes that some relevant questions were not addressed by the May 2010 examiner. Specifically, there are significant psychiatric treatment records in service, including a diagnosis of "depressive reaction," yet there is no opinion of record addressing whether the Veteran's current psychiatric disability had its onset and has continued since service. 38 C.F.R. § 3.303(a) (2012). Further, the examiner, when asked whether the Veteran had any other psychiatric disabilities that may be related to service or the in-service personal assault, the examiner merely indicated that he had "been diagnosed as [sic] depressive disorder but depressive symptoms are not present at this time." The examiner did not address the Veteran's historical diagnoses to include a passive-aggressive disorder (claimed as a bipolar disorder), anxiety disorder not otherwise specified, and dysthymic disorder. On remand, the examiner should indicate whether any of those psychiatric disorders have been present during the Veteran's appeal, and if so, whether it is at least as likely as not that any of them began during service, were caused by an event or injury in service (to include military sexual trauma), or are otherwise causally related to his military service. Concerning the claim for entitlement to compensation for a penile deformity, status-post implantation of a penile prosthesis, pursuant to 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012), the Veteran perfected his appeal in November 2012 when he submitted a VA Form 9 Substantive Appeal. Therein, he requested an opportunity to present testimony to the Board at a videoconference hearing. While VA has not provided the appellant the video conference hearing requested, the Veteran, when he appeared before the undersigned at a 2013 hearing held at the RO, expressed no desire to present relevant testimony on this issue at that time. Certainly, expressing such a desire at that time would be the most economical use of limited VA resources. Hence, the possibility exists that the Veteran no longer wishes to testify on his claim of entitlement to compensation under 38 U.S.C.A. § 1151. Nevertheless, the Board will request that the appellant clarify his desires, and will afford the appellant yet a fourth hearing if he so chooses despite the fact that scheduling yet another hearing will further delay adjudication of this appeal. The Board further notes that the November 2012 statement of the case that VA issued to the Veteran concerning his penile deformity claim is neither associated with the claims file nor with Virtual VA. The RO/AMC should ensure that all procedural records are associated with the Veteran's claim file or Virtual VA prior to returning the matter to the Board. Accordingly, the case is REMANDED for the following action: 1. Associate all procedural records, including but not limited to the November 2012 statement of the case, with either the claims file or Virtual VA. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Request that the appellant clarify his desire to testify before the Board concerning his claim of entitlement to compensation under 38 U.S.C.A. § 1151 for a penile deformity. If he still desires to testify, please schedule the Veteran for a Board videoconference hearing as soon as possible. If the Veteran withdraws his hearing request, ensure that appropriate documentation is associated with the claims file. 3. Return the claims file to the May 2010 examiner for a clarification of his nexus opinion, if he is available within the VA system. The examiner must review the claims file, Virtual VA, and this remand. The opinion report should indicate that such a review occurred. The examiner must opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's posttraumatic stress disorder began during his active duty service or is otherwise causally related to his in-service military sexual trauma. In providing this opinion, the examiner must accept the Board's finding that it is at least as likely as not that the in-service sexual assault claimed by the Veteran occurred in 1974. The examiner must identify any other psychiatric disability present during the course of the Veteran's appeal. Then, the examiner should address whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed psychiatric disability present during the pending appeal began during service, was caused by an event or injury in service to include due to military sexual trauma, or is otherwise causally related to his active duty military service. In providing this opinion, the examiner must address the Veteran's in-service psychiatric treatment. If the May 2010 examiner is not available, a qualified VA psychiatrist must provide the requested opinion. If a medical professional determines that an examination is necessary to answer the questions presented, the RO/AMC should schedule such an examination. 4. The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiners documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 6. Then readjudicate the claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative must be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 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). _________________________________________________ DEREK R. BROWN 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).