Citation Nr: 1319864 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-40 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a neck condition. 3. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1974 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Los Angeles, California Regional Office (RO) of the Department of Veterans Affairs (VA). During the pendency of the appeal, the claims file was subsequently transferred to the jurisdiction of the Detroit, Michigan RO. In characterizing the issues on appeal, the Board recognizes that when a claimant makes a claim, she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of this holding, and the fact that the Veteran has been diagnosed with several different psychiatric diagnoses, to include PTSD, the issue with regard to entitlement to PTSD on the title page has been recharacterized, as listed above. The Veteran was provided with a hearing before a Decision Review Officer (DRO) on May 2011, and the transcript has been associated with the claims file. A review of the Virtual VA paperless claims processing system revealed nothing further pertinent to the present 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, a remand is required to 1) obtain Social Security Administration (SSA) records, 2) provide the Veteran with a new VA examination for headaches, and 3) provide VA examinations for PTSD and a neck condition. First, remand is required to obtain the Veteran's SSA records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including records from Federal agencies, such as relevant SSA records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). The claims file shows that the Veteran was in receipt of SSA benefits via a December 2010 decision document, but does not contain any other associated medical records. As such, remand is required to obtain the SSA records. Second, remand is required to provide the Veteran with a new VA examination for claimed headaches. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Generally, a medical opinion should address all appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Veteran was provided with a VA examination in January 2010. The examiner reviewed the Veteran's claims file, to include service treatment records, private treatment records, and VA outpatient treatment records. The examiner noted that the Veteran had complaints of headaches in service, most notably in April 1974 for a duration of one week in relation to a strep throat infection and in September 1974 in relation to tension with her unit. The Veteran also noted subjective complaints of migraines on her separation examination, but the examiner noted that there was no objective evidence of such. It was noted that private treatment records showed treatment from July 1998 to October 2009 for headaches related to two motor vehicle accidents, muscle tension, and sinusitis, among other things. VA outpatient treatment records were noted as showing treatment in July 2009 for headaches related to high blood pressure and a motor vehicle accident in October 2009. The examiner opined that the Veteran's headaches were not caused by military service. In support, it was provided that the Veteran's in-service headaches appeared to be acute instances, as there were no records of treatment for headaches from 1974 until 2000 to confirm a chronic headache disorder. Further, the examiner related the Veteran's headaches to acute illness and motor vehicle accidents, among other things. The examiner did not examine the Veteran's neck nor opine regarding a secondary relationship between it and her headaches. The Board finds that the January 2010 VA examination is inadequate for rating purposes. Although the examiner discussed the Veteran's headache condition in relation to a theory of direct service connection, there was no discussion of secondary relationship to the Veteran's claimed neck condition. It is noted that the Veteran, since initially filing her claim, has described the effects of her in-service locker injury as manifesting in both neck pain and headaches together. Further, in her July 2008 notice of disagreement (NOD) and October 2009 VA Form 9, the Veteran explicitly provided that her conditions were "linked to one in the same" and that there was a secondary relationship. As such, upon a new VA examination, the examiner must address the issue of secondary relationship to the Veteran's claimed neck condition. Also, in finding that there was no evidence of chronicity due to a lack of treatment records from service to present, the examiner failed to consider the Veteran's lay testimony. A VA examination is inadequate where a VA examiner ignores the veteran's lay statements of an injury/event during service unless the Board expressly finds that no such injury/event occurred. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Although the Veteran's subjective history regarding an in service injury due to a locker falling on the Veteran's head was noted, no further discussion occurred in the examiner's opinion, as it was determined that there was no objective evidence of this injury. The Board takes notice of the Veteran's description of her in- service injury and complaints of continual pain and finds that she is competent to testify as to the precipitating event and severity of the symptomatology associated with her headaches during and after service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, her statements are presumed credible, as her complaints of pain have remained consistent in both her lay testimony and the medical record. As such, upon reexamination, the Veteran's lay testimony must be given consideration in rendering a medical opinion regarding etiology of this claimed condition. Third, remand is necessary to obtain a VA examination for the Veteran's claimed neck condition. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence 'indicates' that there 'may' be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The Veteran has claimed that this condition is related to an in-service injury in which she was hit in the head by a falling locker. She has further claimed that this condition has continued to cause her pain from service onset to present. A review of the Veteran's private treatment records shows that in November 2009, she was diagnosed with cervical pain and that in October 2009, she had been diagnosed with degenerative changes at C3-4, C4-5, and C5-6 disc levels. Although treatment records noted a recent motor vehicle accident, the Veteran's subjective history of the in-service locker incident was also noted. The Veteran has not been previously afforded a VA examination for this condition. The Board finds that the Veteran should be provided with a VA examination to determine the etiology of her claimed neck condition. The Veteran's competent and credible lay statements have established the possibility of an in-service injury as well as chronicity and her private treatment records show that she has a current cervical disability. See McLendon, 20 Vet. App. at 83-86. The examiner should consider the Veteran's lay testimony when rendering a medical opinion regarding this condition. Last, remand is required to obtain a VA examination for the Veteran's claimed PTSD. The Veteran has stated that she was sexually assaulted during the first week of September 1974 while stationed in Germany. The Veteran did not report the incident. In order for a claim for service connection for PTSD to be successful, 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) . If a PTSD claim is based on in-service personal assault, such as this case, evidence from sources other than the Veteran's service records may 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; 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 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. 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. A review of the duty-to-assist correspondence sent to the Veteran in September 2007 and January 2008 reveals that those steps have not been followed and that the Veteran was not specifically advised that evidence from sources other than her service records or evidence of behavior changes may constitute credible supporting evidence of the in-service assault stressors. Therefore, on remand the Veteran should be provided with a duty-to-assist letter which conforms to both the Veterans Claims Assistance Act of 2000 (VCAA) and the current amendment of VA's Adjudication Procedure Manual regarding claims based on military sexual trauma. 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. The Board notes that the Veteran's sister submitted a statement dated in September 2008 which detailed the Veteran's behavior and nervous breakdown upon returning from service. Further, service treatment records in September 1974 indicate that the Veteran was administered a pregnancy test after the time period in which she claimed the sexual assault occurred. Also, service personnel records revealed three instances of non-judicial punishment and a statement that the Veteran no longer wanted to be in the military. All of these instances occurred after the time period of the sexual assault described by the Veteran. The Veteran's service personnel records further show that she was ultimately discharged early due to a failure to adapt to military service. While the September 2009 Statement of the Case discussed the fact that the Veteran's testimony about her sexual assault was inconsistent with her initial claim, in which it stated that the incident occurred while the Veteran was being taken to the airport to depart Germany, presumably at the end of September 1974, rather than her later claimed first week of September 1974, the RO did not consider that the Veteran is an admittedly poor historian. The Board cannot determine that the Veteran's lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). A veteran is competent to report what occurred in service because testimony regarding first-hand knowledge of a factual matter is competent. Washington v. Nicholson, 19 Vet. App. 363 (2005). Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (i.e., a broken leg but not cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. As such, the Veteran's statements regarding the dates of the sexual assault are afforded the benefit of the doubt. Private treatment records show that the Veteran has been diagnosed with an acute psychosis in 1977. She has also been diagnosed with PTSD related to sexual trauma, a mood disorder with a bipolar variant, and generalized anxiety disorder by the VA Medical Center in October 2009. Further, a June 2011 VA treatment record shows that the Veteran was diagnosed with bipolar affective disorder, cluster B personality disorder traits, and history of military sexual trauma PTSD. To date, VA has neither afforded the Veteran a formal VA mental examination nor solicited a medical opinion as to the onset and/or etiology of her asserted PTSD or any other acquired psychiatric disorder. Under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he or she suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon, 20 Vet. App. 79. As such, on remand, the Veteran should be scheduled for an appropriate VA examination so as to ascertain whether she has PTSD that is etiologically related to the asserted in-service sexual assaults and, if not, whether she has any other acquired psychiatric disorder that is related to service. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall provide the Veteran with appropriate notice, pursuant to the VCAA under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), regarding her claim for an acquired psychiatric disorder, to include taking the steps identified in M-21MR, Part IV, Subpart ii, Chapter 1, Section D, Topic 17 of the VA Adjudication Procedure Manual for developing claims for service connection for PTSD based on personal trauma, such as military sexual assaults. 2. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 3. Contact the SSA and obtain all medical records associated with the Veteran's disability award. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and documented for the record. Notice must be provided to the Veteran and her representative. The notice must contain the identity of the records, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim, notice that the Veteran is ultimately responsible for providing the evidence, and notice that the Veteran may provide alternative forms of evidence. Associate all documents obtained with the claims file. 4. After any additional evidence has been associated with the claims file, the Veteran should be afforded (an) appropriate examination in order to determine the etiology of her headache disability. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must consider the Veteran's lay testimony in rendering a decision. (a) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the current headache disability had its onset in service, or is otherwise the result of a disease or injury in service. The examiner should provide a rationale for all opinions. (b) Further, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the current headache disability is related to the Veteran's cervical spine/neck condition. The examiner should provide a rationale for all opinions. 5. The Veteran should be afforded (an) appropriate examination in order to determine the etiology of her neck disability. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must consider the Veteran's lay testimony in rendering a decision. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the current neck disability had its onset in service, or is otherwise the result of a disease or injury in service. The examiner should provide a rationale for all opinions. 6. The AMC shall schedule the Veteran for a VA psychiatric examination for further evidence as to the current nature and etiology of any psychiatric disorder found. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. (a) If a disability manifested by PTSD is diagnosed, the VA psychologist or psychiatrist shall provide an opinion as to whether such is at least as likely as not (i.e., a 50 percent probability or greater) due to or aggravated by the Veteran's period of active service from January 1974 to October 1974. In doing so, the examiner shall clearly identify the specific events which are considered stressors supporting the diagnosis, and fully explain why the stressors are considered sufficient under DSM-IV. (b) If a psychiatric disability other than PTSD is diagnosed, the examiner shall provide an opinion as to whether such is at least as likely as not (i.e., a 50 percent probability or greater) due to or aggravated by the Veteran's period of active service from January 1974 to October 1974. 7. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 8. 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 AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 9. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). _________________________________________________ WAYNE M. BRAEUER 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).