Citation Nr: 1319067 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-45 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from March 1987 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board notes that a supplemental statement of the case (SSOC) was issued to the Veteran in October 2010 which indicates consideration of all relevant evidence noted in the two claims files. 38 C.F.R. §§19.31, 20.1304 (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he incurred a psychiatric disorder during service as a result of experiencing a sexual assault. He detailed the nature of the alleged attack in a statement received in September 2009. VA treatment records, and a letter dated in November 2009 from the Veteran's treating VA psychologist (Ph.D.), indicate that the Veteran has been diagnosed with psychiatric disorders including PTSD and depression. For that reason, the issue has been characterized as entitlement to service connection for an acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Based on the lay and medical evidence of record, the Board finds additional development warranted into his claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection for PTSD, there must be: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between the current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran's service treatment records (STRs) service personnel records are negative for evidence of psychiatric problems, for evidence of in-service behavioral problems, and for evidence of an in-service physical attack. In fact, April 1991 separation reports of medical examination and history indicate no psychiatric or physical problems, while the Veteran's DD Form 214 reflects that the Veteran was honorably discharged from service. Nevertheless, where a PTSD claim is based on an allegation of an in-service personal assault, as in this case, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. VA may not disallow any claim based on personal assault without first explaining to the claimant the types of evidence that will support his claim. 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 will not deny a PTSD claim that is based on an alleged 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 to advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(5)(2012). Moreover, VA has implemented additional procedures in VA's M-21 Adjudication Procedure Manual to assist claimants who file claims based on military sexual trauma. They were most recently amended in September 2009. See M-21MR, Part IV, Subpart ii, Chapter 1, Section D, Topic 17. The Veteran was provided with a notification letter in December 2008 that does not satisfy the notice requirement. A review of the record reveals that the requisite process has not been followed, and that the Veteran has not been specifically advised that evidence from sources other than his service records, or evidence of behavior changes, may constitute credible supporting evidence of the alleged in-service assault stressor. Though certain of this information was noted in the November 2009 statement of the case (SOC), the Veteran has not received complete notice. Additionally, under 38 C.F.R. § 3.304(f)(5), VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for interpretation. Bradford v. Nicholson, 20 Vet. App. 200 (2006). Most significantly, 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). The Board is indeed very mindful of the fact that veterans claiming service connection for disability due to in-service personal assault face unique problems documenting their claims. Since assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. Therefore, the Veteran must be advised of the types of evidence that may support his claim and given the opportunity to submit that evidence. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with appropriate notice regarding 38 C.F.R. § 3.304(f), and ensure that the procedural steps identified in M-21MR, Part IV, Subpart ii, Chapter 1, Section D, Topic 17 of the VA Adjudication Procedure Manual are undertaken for developing claims for service connection for PTSD based on personal trauma, such as military sexual assaults. 2. Obtain and associate with the claims file any VA treatment records dated after March 2010. 3. If additional evidence is submitted by the Veteran, consideration of that evidence and whether it triggers additional duties to assist must be undertaken. 4. Thereafter, the claim on appeal should be readjudicated. If any aspect of the decision remains adverse to the Veteran, issue a SSOC and allow the appropriate time for response. Then, return the case to the Board. The case should then be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of the veteran's claim. The veteran need take no action unless otherwise notified, but he may submit additional evidence and argument on the matter the Board has remanded to the regional office. 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).