Citation Nr: 1318383 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-18 706A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Paul, Minnesota. The case was subsequently transferred to the jurisdiction of the RO in Phoenix, Arizona. In July 2012, the Board remanded the case in order to afford the Veteran a hearing before a Veterans Law Judge at the RO. In February 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. The Board has considered documentation included in the Virtual VA system in reaching the determination below. The Board notes that the Veteran did submit a two lay statements as well as a waiver of the RO's initial consideration of that particular evidence. However, other additional evidence has been associated with the claims file since the issuance of the statement of the case, and there is no waiver of the RO's consideration of that evidence. Nevertheless, because this appeal is being remanded for other action, the RO will have the opportunity to review this evidence and issue a supplemental statement of the case. See 38 C.F.R. § 19.31 (2012). 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 Board's review of the claims file reveals that further development is needed prior to adjudication of the claim for service connection for a psychiatric disorder, to include PTSD. The Veteran in this case contends that he has a current psychiatric disorder that is related to sexual assaults that occurred in the military. VA regulations provide that, if PTSD is based on an in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may constitute credible evidence of the stressor and such evidence includes, but is 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. 38 C.F.R. § 3.304(f)(5). The regulation explicitly states that VA cannot deny a PTSD 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. 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. Id. In this case, while there are notice letters that mention some specific forms of evidence that the Veteran could submit to support his claim, the letters did not clearly advise him of the purpose of such evidence, i.e., that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor claimed. Therefore, on remand, the Veteran should be provided proper notice pursuant to the requirements of 38 C.F.R. §3.304(f)(5). In addition, the record suggests that there may be outstanding VA treatment records pertinent to the Veteran's claim. Specifically, at the February 2013 hearing, the Veteran testified that he currently receives mental health treatment at the VA Medical Center (VAMC) in Phoenix, Arizona. Hearing Transcript, pp. 21-23. While other VA treatment records have been obtained, records from this particular facility do not appear in either the paper claims file or the Virtual VA file. VA is held to have constructive notice of the contents of VA records at the time of adjudication. Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, 38 U.S.C. § 5103A(b)(3) requires that VA continue any attempts to get federal records "until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." Therefore, an attempt should also be made to obtain any outstanding VA medical records that are pertinent to the claim. Moreover, at the February 2013 hearing, the Veteran testified that he receives disability benefits from the Social Security Administration (SSA) that he believes are due to his psychiatric disability. Hearing Transcript, pp. 16-17. The Veteran's Virtual VA file does copies of award letters from SSA; however, the claims file does not contain a copy of the decision to grant benefits or the records upon which that decision was based. Under 38 U.S.C.A. § 5107(a), VA's duty to assist specifically includes requesting information from other Federal departments or agencies. Where there has been a determination that a Veteran is entitled to SSA benefits, the records concerning that decision are often needed by the VA for evaluation of pending claims and must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Therefore, the RO/AMC should obtain and associate such records with the appellant's claims file. Finally, the Board finds that a VA examination and medical opinion are necessary in this case. In this regard, the Veteran has various diagnoses of psychiatric disorders, including major depressive disorder, substance abuse in remission, PTSD, polysubstance dependence, and an impulse control disorder not otherwise specified. The Veteran's service entrance examination report reflects that he entered service with "nervous trouble," and the examiner characterized his nervousness as "mild." In July 1968, the Veteran was also noted to have a behavioral problem. At that time, he admitted to bisexual activity since the age of 9, and an administrative discharge was recommended. His service treatment and personnel records from August 1968, including a sworn statement of the Veteran, also confirm that this discharge was carried out due to homosexual and bisexual activity. In addition, the Veteran has submitted lay statements dated in April 2013 from his brother and C.J. (initials used to protect privacy) wherein they indicated that the Veteran had changed when he returned from military service. Both individuals noted that he was depressed and unhappy following his discharge. The Veteran also submitted a November 2009 buddy statement from K.F. He did not corroborate the alleged sexual assaults, but did he state, "if someone was touchy, they got touched until they got over it." As for the etiology of the Veteran's current psychiatric symptoms, the record contains various opinions. In a June 2008 VA treatment record, the Veteran reported his military experiences to his treating physician, who was an infectious disease fellow. The physician noted that he had told the Veteran it was hard to know what effect the events from the 1960s have on him now. He was referred to a mental health provider. During the subsequent June 2008 mental health consultation, the VA provider determined that the Veteran does not meet the criteria for PTSD based on his reported stressors. The provider also indicated that she was unable to determine the definitive effects of any such military experiences. In another June 2008 statement from a private physician, M.W., it was concluded that the Veteran's military experiences could not be confirmed nor ruled out as a contributing factor in his present depression. However, M.W. also stated, "it would be hard to imagine that this treatment he endured has had no effect on him what so ever." During an August 2008 VA examination, the Veteran was diagnosed with depressive disorder and substance abuse in remission. The examiner stated that he could not resolve the issue of whether that diagnosis was related to the Veteran's military service without resort to mere speculation. In so doing, he noted that the Veteran's reports of depression, anger, and difficulty interacting with authority figures were vague and that his memories of abuse were inconsistent. Additionally, the Veteran had reported experiencing emotional and physical abuse by his older brother in childhood. For these reasons, the examiner could not resolve the etiology of his disorder. In a November 2008 VA treatment record, it was noted that the Veteran's version of military experiences that day was different that those noted in the past. The provider noted that the Veteran's report of having 22,000 post-service sexual partners, consisting of partners 5 days a week for 35 years with up to 22 partners on a weekend seemed high, and that he appeared more interested in compensation than in dealing with his problems. In November 2009, the Veteran was diagnosed with PTSD, polysubstance dependence, and an impulse control disorder not otherwise specified. The counselor indicated that the Veteran appeared confused about the events in his life and appeared to be experiencing flashbacks and intrusive memories associated with his experience in the Navy. It was noted that those experiences appeared to have been repressed until recently and that the Veteran had recently reached an understanding of how he engaged in self-destructive coping mechanisms throughout his adult life. This understanding appeared to have caused a period of crisis, which required further monitoring and treatment. On review of all of this evidence, the Board finds that a VA examination and medical opinion are necessary to determine the nature and etiology of any current psychiatric disorders that are present. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the Veteran a proper notice letter. The letter must comply with the special provisions regarding personal assault, including notification of the alternative sources of evidence the Veteran may submit or evidence of behavioral changes that may support his claim. 38 C.F.R. § 3.304(f)(5). Send the Veteran VCAA notice under 38 U.S.C.A. §5103(a) and 38 C.F.R. § 3.159(b) for the claim on appeal. 2. The RO/AMC should obtain all outstanding VA treatment records from the VA Medical Center in Phoenix, Arizona. 3. The RO/AMC should obtain a copy of the decision to grant SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 4. The Veteran should be afforded a VA examination to determine the nature and etiology of any current psychiatric disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. For each diagnosis identified, the examiner should state whether the disorder existed prior to service. If so, he or she should state whether the preexisting disorder(s) worsened in severity during service and whether the increase in severity was consistent with the natural progression of the disease or whether the increase represented a permanent worsening or "aggravation" of the disease beyond its natural progression. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. If any disorder did not preexist service, the examiner should indicate when the disorder manifested and whether it is at least as likely as not that that the disorder is related to the Veteran's military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) With respect to PTSD, the RO/AMC should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any personal assault he or she determines to have occurred in service may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. In making this determination, the examiner should discuss the diagnoses documented in the claims file, including the diagnoses rendered during an August 2008 VA examination and in the November 2009 counselor's report. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including any personal assault. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO should implement corrective procedures. 6. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 7. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the appellant and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to 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). _________________________________________________ JESSICA J. WILLS 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).