Citation Nr: 1315657 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 12-31 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New Hampshire Office of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from June 1978 to June 1981. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Veteran has alleged multiple in-service stressors due to personal assault. Specifically, on his statement in support of his claim, VA Form 21-0781, the Veteran claimed two specific in-service assaults. First, he described an incident in which he said a Second Lieutenant told him he had a job for him and when he was alone in the Second Lieutenant's home, he asked the Veteran to have sex with him for money. He further informed the Veteran that he would shoot him with the gun the Veteran had seen in the other room if he told anyone about it. The Veteran reported he ran away and was in fear for his life. In a second incident, the Veteran reported a fellow servicemember who he lent personal tools to pawned those tools, and when the Veteran demanded them back, a friend of the servicemember pointed a gun at the Veteran, pulled the hammer back, and said he'd shoot him if he didn't drop it. On his VA Form 21-0781, the Veteran alleged the first incident occurred in November 1981 and the second in February 1982. Both dates are after the Veteran left service in June 1981. However, in testimony before the RO and the Board, the Veteran indicated both incidents occurred while he was on active duty. As the Veteran also incorrectly listed his service dates on his VA Form 21-0781 as being from 1979 to 1982 rather than 1978 to 1981, it appears his reporting of the dates of the incidents on the form was likely in error. His testimony is otherwise consistent that both incidents occurred in service. The Veteran also testified that during service he was physically beaten by other members of his platoon during basic training at Fort Knox and threatened with being raped. In cases where the Veteran claims PTSD due to an in-service personal assault, 38 C.F.R. § 3.304(f)(5) provides that evidence from sources other than the Veteran's service records may be used to 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; pregnancy tests or tests for sexually transmitted diseases; statements from family members, roommates, fellow service members, or clergy; and evidence of behavior changes such as 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; and unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). The regulation further provides that VA will not deny a PTSD claim that is based on in-service personal assault without first advising the Veteran 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. 38 C.F.R. § 3.304(f)(5). A review of the claims file in this case shows that the Veteran was not advised pursuant to 38 C.F.R. § 3.304(f)(5). Although the November 2009 Veteran Claims Assistance Act letter sent the Veteran notes that the Veteran may be able to furnish documents that can substitute for service treatment records (for example, buddy affidavits and police reports), the letter does not list all of the examples identified by 38 C.F.R. § 3.304(f)(5) as sources other than service records that can constitute credible supporting evidence necessary to establish the occurrence of an in-service personal assault. Although the full text of 38 C.F.R. § 3.304(f) was included in the statement of the case issued in November 2012, such notice is not sufficient as the Veteran was not then afforded an opportunity to furnish such evidence or advise the VA of any potential sources of such evidence. Accordingly, complete notification pursuant to 38 C.F.R. § 3.304(f)(5) must be accomplished on remand as the regulation mandates. The Veteran began receiving mental health treatment at the VA in February 2009 for symptoms of PTSD. At an October 2009 appointment he described the same in-service stressor incidents that he listed on his VA Form 21-0781 and testified to. The clinical social worker treating the Veteran opined that the incidents were very traumatic to the Veteran and were "so threatening they contributed to excessive anger and anxiety over the outcome of events in his life and ability to maintain relationships to include interfering with vocationally. In March 2010 VA mental health treatment appointment he reported distressing dreams about his military trauma. VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. §5103A (West 2002); 38 C.F.R. §3.159(c)(4)(2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record in this case contains a June 2010 Joint Service Records Research memorandum indicating that there is insufficient evidence to corroborate the Veteran's alleged stressful events. However, significantly, the Board notes that for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. See Bradford v. Nicholson, 20 Vet. App. 200 (2006); Patton v. West, 12 Vet. App. 272, 278 (1999). In light of these facts, and because the Veteran has never been afforded a VA examination in conjunction with his service connection claim, the Board finds that a VA examination is necessary in order to determine the likelihood that the incidents described by the Veteran occurred, to ascertain whether the Veteran meets the criteria for a diagnosis of PTSD in accordance with the DSM-IV, and if so, whether the PTSD is etiologically related to the claimed in-service stressors. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all VA treatment records from March 2012 to present and associate with the claims file. 2. Send the Veteran a notification letter that completely satisfies 38 C.F.R. § 3.304(f)(5). The shall set forth all examples listed in this regulation of sources other than service records that can constitute credible supporting evidence necessary to establish the occurrence of an in-service stressor based on personal assault. A copy of the letter shall be documented in the claims file. 3. Schedule the Veteran for a VA psychiatric examination. The claims folder, to include a complete copy of this remand, must be made available to the examiner, and a report of the examination should include discussion of the Veteran's medical history and assertions. All necessary tests and studies, to include psychological testing should be accomplished, and all clinical findings should be reported in detail. The examiner should address the following: a. Does the Veteran meet the DSM-IV criteria for a diagnosis of PTSD? b. Is it at least as likely as not (at least a 50 percent probability) that the alleged in-service assaults described by the Veteran actually occurred. c. If the responses to (a) and (b) are positive, is it at least as likely as not (at least a 50 percent probability) that the Veteran's PTSD is the result of the in-service assaults. d. If the examiner determines that the Veteran has PTSD, but did not experience an in-service personal assault, he or she should state whether it is at least as likely as not that the Veteran's PTSD had its onset in service or is otherwise etiologically related to his active service. As to any other currently diagnosed psychiatric disability, an opinion should be provided as to whether it is at least as likely as not that the disability had its onset during service or in the year following discharge, or is otherwise etiologically related to service. 4. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned ot the Board for further review. The appellant 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). _________________________________________________ MARK W. GREENSTREET 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).