Citation Nr: 1313155 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 06-31 646A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depressive disorder, not otherwise specified (NOS). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from March to August 1975 with subsequent service in the Army National Guard of Minnesota. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which, in pertinent part, denied the reopening of a previously denied claim of entitlement to service connection for PTSD. In April 2011, the Board reopened the previously denied claim of service connection for PTSD and remanded the claim for additional development. The case has been returned now for further appellate action. The United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claim for benefits based on PTSD encompassed benefits based on other psychiatric disabilities). Therefore, the Board construes the Veteran's claim of service connection for PTSD as encompassing entitlement to service connection for an acquired psychiatric disability, to include PTSD and depressive disorder NOS, regardless of the precise diagnosis. 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 In the April 2011 remand, the Board requested that the Veteran be provided new notice for the claim, including notice concerning personal assault-related PTSD claims. Then, a VA opinion was to be obtained regarding the evidence, if any, which corroborated the claimed personal assault. In the case of a claim for service connection for PTSD based on in-service personal assault, VA has undertaken a special obligation to assist a Veteran in producing corroborating evidence of an in-service stressor. Gallegos v. Peak, 22 Vet. App. 329, 335 (2008) (citing Patton v. West, 12 Vet. App. 272, 280 (1999)). In accordance with this special obligation, 38 C.F.R. § 3.304(f)(5) (2012) (formerly 38 C.F.R. § 3.304(f)(4)) places a heightened burden of notification on VA in claims for service connection for PTSD based on in-service personal assault. First, VA must inform the Veteran that she may submit alternative forms of evidence, other than service records, to corroborate her account of an in-service assault, and suggest potential sources for such evidence. 38 C.F.R. § 3.304(f)(5); see Bradford v. Nicholson, 20 Vet. App. 200, 206 (2006); Patton, 12 Vet. App. at 281-82 (noting that the RO must send the claimant a "special PTSD personal-assault letter" and questionnaire to assist VA in identifying alternative sources of evidence to establish an in-service stressor (citing M21-1, Part III, para. 5.14(c)(6)-(7))). The Veteran should also be notified that, alternatively, evidence of behavioral changes following the alleged in-service assault may constitute credible supporting evidence of the stressor. 38 C.F.R. § 3.304(f)(5); see Bradford, 20 Vet. App. at 206. Examples of evidence from sources other than the veteran's service records which may corroborate her account of the stressor incident 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)(5). 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. VA will not deny a posttraumatic stress disorder 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. Id. A notice letter provided to the Veteran in May 2011 did not advise her that evidence of behavioral changes following the alleged in-service assault may constitute credible supporting evidence of the stressor and did not provide any examples of such behavioral changes. Therefore, the claim must be remanded so that the Veteran may be provided such notice and afforded the opportunity to submit such evidence. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). The regulation also provides that VA may refer evidence to a mental health examiner for an opinion as to whether the evidence supports a finding of behavior changes in response to a stressor. 38 C.F.R. § 3.304(f)(5). Upon remand, the Board requests that the Veteran be provided a new VA examination in order to determine whether there is evidence which supports a finding of behavior changes in response to a stressor. As noted above, the Board must also consider service connection for the other currently diagnosed acquired psychiatric disabilities. VA treatment records include diagnoses of depression following the Veteran's reports of the in-service personal assault. However, an August 2006 VA examiner related her depressive symptoms to her current life circumstances. Therefore, the Board requests that the VA examiner also provide an opinion as to whether the Veteran's depressive disorder or symptoms are etiologically related to service. Finally, the Board requests that this opportunity is taken to obtain any outstanding VA treatment records. Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA medical records and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Advise the Veteran that evidence from sources other than service records or evidence of changes in behavior may constitute credible supporting evidence of the claimed stressors, and allow her the opportunity to submit such evidence or advise VA of the sources of such evidence. 3. Thereafter, schedule the Veteran for a VA psychiatric examination. The examiner should review the claims folder, including any relevant evidence in the Virtual VA claims file. The examiner should provide an opinion as to whether the Veteran meets the criteria for a diagnosis of PTSD. If not, the examiner should specify which of the criteria are not met. If the Veteran does meet the PTSD criteria, the examiner should specify the stressors supporting the diagnosis and provide a detailed description of the stressors. If the supporting stressor consists of an in-service personal assault, the examiner should provide an opinion as to whether there is evidence of behavior changes in response to the stressor. The examiner should also provide an opinion as to whether any other currently diagnosed psychiatric disability, including depressive disorder NOS or depression, at least as likely as not (e.g., a 50 percent or greater probability) had its onset in service or is the result of a disease or injury in service, to include the reported personal assault early in her career as well as the reported verbal assault and harassment later in her career from another sergeant. The examiner should provide a rationale for each of the opinions that takes into account the Veteran's reports of injuries, stressors, and symptoms. 4. Then, review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 5. Finally, after completion of all requested and necessary development, review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, furnish the Veteran and her representative with a supplemental statement of the case. Once they are afforded an opportunity to respond, return the claim to the Board for appellate review. The appellant 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).