Citation Nr: 1318328 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 07-11 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a psychological disability, to include posttraumatic stress disorder (PTSD) due to military sexual trauma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1981 to February 1986. This case 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 St. Louis, Missouri. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Cleveland, Ohio. This case was remanded for further development in January 2011 and January 2013. The claim is again before the Board for appellate consideration. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim. A review of the documents in such file reveals that they include VA treatment records which are relevant to the issue on appeal. 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 Unfortunately, an additional remand for further development is required in this case. The Veteran asserts that she has PTSD or other psychiatric disorder which had its onset during service or is due to sexual assault and harassment which occurred during service. The Veteran has submitted statements describing how she endured years of "stalking" and "constant" harassment. In statements to VA, the Veteran described a 1981 incident which she describes as her most severe stressor event, stating that a man had sat on her bed, saying "disgusting things" and attempting to have sex with her, causing her to run into the bathroom and bolt the door. She wrote that "the guy was pounding on the door saying he was going to break it down. I was panicking, trembling, I opened the bathroom window and climbed out and went and stayed in another barrack." The Veteran stated that she was "petrified" and considered "getting out" of the service because of this event. The event upset her so much she took 3 days of emergency leave, which is not mentioned in her service records but has been supported in statements by her mother and sister. The Veteran's medical records indicate for the past 25-30 years she has received treatment for a variety of psychiatric diagnoses, including bipolar disorder, panic disorder, PTSD, substance abuse, dysthymic disorder, and possible depression. VA treatment records of counseling sessions indicate that she has struggled with feelings of stress and anxiety related to events during service that included being threatened, "groped," and almost raped. The Board previously remanded the case to afford the Veteran a VA examination to determine the nature of her current psychiatric disability and whether it had its onset during service or is related to any incident during service. A VA examination was performed in January 2013 at the Pittsburgh VA Medical Center. The VA examiner indicated that she had reviewed the claims folder, including the personal statements of the Veteran. The examiner stated that a November 1994 evaluation indicated that the Veteran had experienced periods of depression and having "breakdowns" since adolescence. The examiner also stated that the Veteran's entrance examination noted "nervousness," and that later service treatment records included notations of anxiety, psychosexual problems, and possible hallucinations, but no formal diagnosis or treatment for any psychiatric disorders. The examiner noted that the Veteran has received numerous different diagnoses since she began receiving psychiatric treatment in 1994, which she felt was due to her change in symptom presentation over time and was best explained with a diagnosis of borderline personality disorder, which would allow for such variable symptomatology. The examiner also diagnosed her with schizoaffective disorder. The examiner ultimately opined that the Veteran's personality disorder predated her service, and her symptoms from schizoaffective disorder did not begin until the death of her husband in 1993. The examiner stated that "while there is some indication of possible nervousness in service," there was no aggravation of her symptoms during service because she was able to function adequately while enlisted. The examiner also added that because borderline personality disorder is a lifelong disorder, "the military might have been a protective factor for her, given its structured environment." The examiner indicated that persons with borderline personality disorder may develop psychotic-like symptoms, such as hallucinations, during times of stress, which may account for the treatment report of hallucinations in service. The examiner described the Veteran's alleged stressors events during service, but found that they did not rise to the severity of ones that could support a diagnosis of PTSD as "traumatic events." However, the examiner's retelling of the Veteran's most serious stressor incident differs dramatically from the Veteran's own description. The examiner stated that during service a man sat on the Veteran's bed and "asked for sex, Veteran said no and went into bathroom and jumped out window. There was no assault." The VA examiner succinctly summarized the Veteran's experiences in service as being merely "asked suggestive questions and being propositioned for sex, but there were no unwanted sex acts, no physical pressure for sex and no assault." The examination described above is inadequate to decide the case at issue. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner indicated that the Veteran's borderline personality disorder clearly and unmistakably preexisted prior to her service, and part of the evidence provided is that "nervousness" is indicated on her entrance examination. However, a review of the Veteran's entrance examination shows that on the Veteran's December 1980 recruitment worksheet, the Veteran wrote "NO" next to "nervous condition." On a December 1980 Report of Medical History, the Veteran checked "yes" next to "nervous trouble of any sort," and later there is written, "nervous stomach - no hx of ulcer" and "asymptomatic for at least past year." The accompanying Report of Medical Examination has a checkmark for "normal" next to "Psychiatric." At best this is a mixed history as to pre-service symptoms. The examiner apparently failed to accept as credible the Veteran's reports of sexual harassment and assault, and has dramatically altered the Veteran's telling of these events in her examination report. It is unclear from the record whether appellant provided a vastly different story on examination or whether this is not a complete reading of the record. The Board finds no reason to believe that the Veteran is not a credible and competent witness to her own experiences during service and the symptoms she manifested afterwards, and the examiner is under an obligation to take into consideration her lay statements regarding the onset and continuity of her symptoms. See 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (A layperson is competent to report on the onset and continuity of current symptomatology.). The Board also points out that 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, including evidence of behavior changes. 38 C.F.R. § 3.304(f)(5) (2012). In this case the Veteran's mother and sister have submitted letters indicating that the Veteran came home and was upset due to an event in service in 1981. Furthermore, the examiner indicated that while the Veteran had borderline personality disorder prior to service, she only began manifesting symptoms of hallucinations during service because they were brought on by increased stress. This appears to contradict the examiner's contention that the Veteran's psychiatric disorder was not aggravated during service, and this was not discussed or explained by the examiner. See 38 U.S.C.A. § 1111 (West 2002); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (indicating an opinion is considered adequate when it is based on consideration of an appellant's medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the claimed disability is a fully informed one). Accordingly, the RO/AMC should arrange for the Veteran to undergo an additional VA psychiatric examination performed by a qualified psychiatrist or psychologist other than the one who performed the January 2013 examination. The RO/AMC should forward the complete claims file to the examiner for review. Following a review of the record, the examiner should offer an opinion regarding the Veteran's psychiatric diagnoses, their etiology, and any connection to or aggravation during active duty service, taking into consideration the Veteran's lay statements regarding the onset and continuity of symptoms and providing a full rationale for the opinion based on all of the evidence of record. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 83. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as this claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO/AMC should obtain and associate with the claims file a copy of the notice of the date and time of the examination sent to her by the pertinent VA medical facility. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA psychiatric examination with a psychiatrist or psychologist, other than the January 2013 examiner, to determine the nature and etiology of any diagnosed psychiatric disorders, including PTSD. All indicated tests must be accomplished. The claims files and access to Virtual VA must be provided to the examiner. The examiner must document their review of the claims folder and Virtual VA. The examiner should then provide an opinion, consistent with sound medical judgment, as to the following: (i) What are the Veteran's current psychiatric diagnoses? For those disorders which the Veteran has been treated for during the course of the claim, but which the examiner finds are not now present, please discuss whether the appellant is likely to have met the criteria for that diagnosis at some point since February 2005, though the condition has subsequently resolved. (ii) If the Veteran is diagnosed with PTSD, the examiner is to state whether it is at least as likely due, at least in part, to the appellant's reported stressors of sexual harassment and assault during military service. Please discuss any evidence that corroborates the Veteran's account of the stressor incident/s. (iii) For any diagnosed psychiatric disorder other than PTSD, is it at least as likely as not (i.e., there is a 50 percent or greater probability) that any of the Veteran's psychiatric disabilities had their onset during or are otherwise related to active duty service? (iv) For any diagnosed psychiatric disorder, does the evidence of record clearly and unmistakably show that the disorder existed prior to the Veteran's entrance onto active duty? If so, what evidence supports that conclusion? (v) With respect to any such disorder that the examiner finds existed prior to the Veteran's entrance onto active duty, is there clear and unmistakable evidence that the psychiatric disorder did not undergo an increase in the underlying pathology during or as a result of her period of active service? Please address the psychiatric symptoms indicated in the Veteran's service treatment records when answering this question. The examiner must provide both clear conclusions and a reasoned medical explanation supporting his/her conclusion. In rendering the opinion, the examiner should include discussion of the Veteran's documented medical history and assertions, including all previous psychiatric diagnoses, as well as the Veteran's lay statements regarding the onset of her symptoms and continuity of symptomatology. If the examiner opines that any question cannot be answered without resorting to speculation, then a detailed medical explanation as to why causation is unknowable must be provided. 2. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. She is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claim. 38 C.F.R. § 3.655. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. After completing the requested actions, the RO/AMC should readjudicate the claim in light of all pertinent evidence. If the benefit sought on appeal remains denied, the Veteran and her representative shall be provided with a supplemental statement of the case. An appropriate period of time shall be allowed for response. 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). _________________________________________________ MICHAEL D. LYON 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).