Citation Nr: 1316905 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-40 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to November 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied service connection for PTSD. The Veteran was scheduled for a hearing before the Board in December 2013; however, he failed to appear. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702 (d) (2012). As no such request for postponement or rescheduling has been received, this Veteran's request for a hearing is considered withdrawn. 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 Notice and examination VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Regulations provide that VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than a veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allow him the opportunity to furnish that type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(5) (2012). Although the RO sent letters to the Veteran in October 2007 and July 2008, these letters failed to notify the Veteran of the duties to assist and of the information and evidence necessary to substantiate a claim for service connection for PTSD. These letters also did not fully notify the Veteran of information that could support his claim for PTSD based on in-service personal assault. For these reasons, the case must be remanded so the Veteran can be fully informed of the duties to assist and notify and what evidence he can submit to substantiate his claim. VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2012). The threshold is low when determining whether the evidence indicates that a current disability may be associated with military service for VA medical examination or opinion purposes. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For PTSD claims, service connection 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 claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). The applicable criteria for diagnosing mental disorders are found in the American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders (4th ed.) (DSM-IV). 38 C.F.R. § 4.125 (2012). The Veteran described experiencing three stressors which occurred during his military service. See VA mental health initial evaluation dated in May 2007. The Veteran reported seeing a person jump to his death from the top of a building, being beaten up by military police when he returned late for curfew, and being shot at while in the demilitarized zone (DMZ) in Korea. The Board notes that the Veteran's stressor of being shot at in the DMZ could be related to the Veteran's fear of hostile military activity. According to 38 C.F.R. §3.304(f)(3), if a stressor claimed by the Veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with places, types, and circumstances of the veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For these reasons, the Board finds that a VA examination is necessary to determine if the Veteran's stressors meet the criterion under 38 C.F.R. § 3.304(f)(3). Furthermore, the Veteran contends that he was assaulted by military police while stationed in Korea. If a PTSD claim is based on an in-service personal assault, evidence from sources other than the veteran's service records may corroborate an account of a 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; 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. 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)(5) (2012). As noted above, the Veteran has not received the notice required by 38 C.F.R. § 3.304(f). After the Veteran received such notice and has time to respond, an examination is needed to determine whether there is evidence of behavior changes in response to the claimed stressor. Personnel Records The Veteran claims that he received an Article 15 following the incident where he was beaten up by the military police in Korea. See Veteran's claim dated in August 2007. The Article 15 is not included in the personnel records that are associated with the claims file. Upon remand, an attempt must be made to obtain the Veteran's claimed Article 15 from any available source. Social Security Administration Records The Veteran reported in a January 2008 VA treatment record that he is receiving disability benefits from the Social Security Administration (SSA). The record does not reflect that efforts have been made to obtain records from SSA. There is no report of the SSA decision in this case, and the Board therefore has no basis for preliminarily ascertaining that the disabilities for which SSA benefits were granted differ from the issue of PTSD addressed in this appeal. But see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (finding that the duty to assist did not include obtaining SSA records where VA had a copy of the decision, and there was no evidence that the decision addressed the disability at issue in the appeal). Efforts to obtain the SSA records are therefore required, pursuant to 38 C.F.R. § 3.159(c)(2). See also Baker v. West, 11 Vet. App. 163, 139 (1998) (VA's duty to assist includes obtaining SSA records when the veteran reports receiving SSA disability benefits, as such records may contain relevant evidence). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with proper notice under 38 C.F.R. § 3.304(f)(5), noting that supporting evidence of the claimed personal assault stressor can consist of evidence other than official service department records. 2. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers who provided any treatment pertinent to the issue on appeal. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts to allow him the opportunity to obtain and submit those records for VA review. 3. Obtain all pertinent VA records not already associated with the claims file. 4. Obtain any available Social Security Administration records for this Veteran concerning the grant or denial of disability benefits. All records obtained pursuant to this request must be included in the Veteran's claims file. If the search for such records has negative results, documentation to that effect must be included in the claims file. 5. Obtain the Veteran's Article 15 that he received during his military service from any available source. If the search for such records has negative results, documentation to that effect must be included in the claims file. 6. After all of the above development has been completed to the extent possible, schedule the Veteran for a VA examination with a psychologist or psychiatrist. The examiner must review the entire claims file and must note that review in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, sound medical principles and taking into account lay testimony from the Veteran. The examiner should provide the following information: (a) Provide a full multiaxial diagnosis pursuant to DSM-IV and specifically state whether or not each criterion for a diagnosis of PTSD is met. (b) For every psychiatric disability diagnosed, opine whether it is at least as likely as not (50 percent probability or greater) that the disability is related to service. (c) If a diagnosis of PTSD is appropriate, state whether it is related to any verified event in service or is based upon evidence which in the opinion of the examiner indicates that a personal assault occurred during service. If so, please state what evidence indicates that a personal assault occurred during service. Also, please state whether Veteran's stressor of being shot at in the demilitarized zone could be related to the Veteran's fear of hostile military activity. See 38 C.F.R. §3.304(f)(3). Please confirm that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor. An explanation for any opinion expressed is required. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 7. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. 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 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). _________________________________________________ Bethany L. Buck 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).