Citation Nr: 1319901 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-50 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran had active service from November 1979 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which denied a claim of entitlement to service connection for PTSD. In June 2010, the Veteran testified before an RO Decision Review Officer (DRO). A copy of the hearing transcript is associated with the claims folder. A review of the Virtual VA electronic records storage system reveals a VA admission notice on September 29, 2008 which is not associated with the paper claims folder, but was considered by the agency of original jurisdiction (AOJ) in connection with the Veteran's claim. Moreover, as such reveals an admission for dehydration/diarrhea, such is irrelevant to the Veteran's claim. In August 2011, the Veteran's representative submitted additional evidence with a waiver of AOJ consideration. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. However, in September 2011, the Veteran's representative again submitted additional evidence, but this time without a waiver of AOJ consideration. However, as the Veteran's claim is being remanded, the AOJ will have an opportunity to review all the submitted documents such that no prejudice results to the Veteran in the Board considering the newly received evidence for the limited purpose of issuing a comprehensive and thorough remand. The Veteran has expressly filed a claim of service connection for PTSD. However, VA treatment records include a diagnosis of PTSD as well as additional diagnoses of depression not otherwise specified (NOS) and major depressive disorder (MDD). In view of this information, it is more appropriate to characterize the claim broadly as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran contends that she manifests PTSD as a result of military sexual trauma (MST). She approximates that the event occurred in August 1980 or September 1980. See DRO hearing transcript dated June 2010, p. 2. She has reported that substance abuse, which began prior to service, escalated after the MST. See VA Discharge Summary dated July 26, 2009; VA Discharge Summary dated December 24, 2009. An August 2011 VA examiner statement opines that the Veteran's PTSD is the direct result of her alleged MST. However, there is some inconsistency to Veteran's description of events. For example, the Veteran has reported that her drug use escalation after the MST led to her being placed in the stockade for stealing money from her roommate. See VA Discharge Summary dated July 26, 2009. However, the Veteran's service personnel records (SPRs) reflect that, on or about May 16, 1980, the Veteran stole $560 from a fellow service mate. She was convicted for this offense. This documented chronology of events reflects that the event of stealing money occurred prior to the alleged MST event. Additionally, at one point, the Veteran directly attributed her pregnancy in 1981 to her boyfriend. See DRO hearing transcript dated June 2010, p. 7. Yet, she later informed a VA clinician that her oldest child was conceived around the time of the rape, and she was unclear as to who was the father. See VA clinic record dated December 2, 2010. See also VA clinician statement dated September 6, 2011. The Veteran's service treatment records (STRs) reflect that she sought a pregnancy test on January 23, 1981, at which time she reported that her last menstrual cycle (LMP) occurred on December 10, 1980. This documented chronology of event suggests that the Veteran could not have become pregnant as a result of the MST event allegedly occurring in August 1980 or September 1980. However, the actual date of birth of her child is not reflected in the record. The record does reflect that, on October 21, 1980, the Veteran presented to the dispensary due to symptoms of edema in her groin area. Examination demonstrated blood in her vaginal vault and resulted in a diagnosis of pelvic inflammatory disease (PID). The Board cannot discount the fact that this visitation may reflect corroboration of the MST, as the Veteran's current recollection of events occurring in the August/September 1980 timeframe may be slightly inaccurate due an attempt to recall events which occurred decades ago. The Veteran also reports additional PTSD stressors such as being raped by her husband after service at the age of 25, having vivid memories and flashbacks of her father abusing her mother during childhood, and seeing a friend drown at the age of 13. See VA clinic records dated August 17, 2007; November 13, 2008. She was also incarcerated for 17 years for a murder conviction. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection for PTSD, requires: 1) a current medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor); 2) credible supporting evidence that the claimed in-service stressor(s) actually occurred; and 3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). 38 C.F.R. § 3.304(f)(5). VA recognizes that, because a personal assault is a personal and sensitive issue, many incidents are not officially reported, which in turn creates a proof problem in establishing they did. It is not unusual for there to be an absence of service records documenting the events the Veteran has alleged. Therefore, evidence from sources other than service records may corroborate an account of a stressor incident that is predicated on a personal assault. See, e.g., Patton v. West, 12 Vet. App. 272, 277 (1999). 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. 38 C.F.R. § 3.304(f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in the mentioned 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 received to an appropriate mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. Here, the Veteran has been diagnosed with PTSD as a direct result of the alleged MST event. Given the evidence discussed above, the Veteran should be afforded VA examination with a VA psychiatrist or psychologist to determine whether she meets the criteria for a PTSD diagnosis and, if so, whether there are any indications (behavior changes, etc, including after her military service) that she was sexually assaulted while in the military, as another means of trying to corroborate her alleged MST. In other words, if the VA examiner determines the Veteran's suffers from PTSD or other psychiatric disorder, he or she should then determine whether the Veteran's alleged sexual assault in service is the basis for such diagnosis. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A (d) and 38 C.F.R. § 3.159(c)(4). Although the Board must make the ultimate finding of fact concerning the occurrence of a stressor, VA regulation as mentioned provides that VA adjudicators may submit any evidence it receives to an appropriate medical or mental health care professional for an opinion as to whether it indicates that a personal assault occurred resulting in PTSD. 38 C.F.R. § 3.304 (f)(5). The Board also notes that, according to the special provisions of 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives concerning the alleged MST to an appropriate medical or mental health professional for an opinion as to whether the evidence indicates that a personal assault occurred. That is to say, in these types of cases there is an exception to the general rule announced in Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996), that after-the-fact medical nexus evidence cannot, as a matter of law, corroborate the occurrence of a noncombat stressor in service. Indeed it can when, as here, the claim is predicated on MST. See Patton v. West, 12 Vet. App. 272, 277 (1999); YR v. West, 11 Vet. App. 393, 398-99 (1998). On remand, current VA treatment records since June 3, 2011, should be associated with the claims folder. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered part of the record on appeal since they are within VA's constructive possession). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder clinical records of the Veteran's VA treatment since June 3, 2011. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Upon completion of the above, schedule the Veteran for appropriate VA examination to be conducted by a psychiatrist or psychologist so as to determine the nature and etiology of her acquired psychiatric disorder(s). The claims folder contents must be made available to the examiner for review. Following interview of the Veteran and review of the claims folder, the examiner is requested to provide opinion on the following questions: a) If the examining physician finds that the Veteran meets the criteria for a PTSD diagnosis, he/she should specifically identify which stressors are linked to the PTSD diagnosis. If the stressor involves an MST event, the examiner should provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any behavior changes were demonstrated in service or shortly thereafter and, if so, whether such changes may be indicative of a personal assault having been committed upon the Veteran in service. The examiner is specifically asked to comment upon the significance, if any, of the inconsistencies regarding the chronology of events regarding her conviction for stealing money and the timing of her pregnancy in 1981 discussed in the body of the remand, the October 21, 1980 dispensary visitation for edema in her groin area, and other lay testimony as to behavioral changes after the claimed incident. b) Provide opinion as to whether it is at least as likely as not (probability of 50% or greater) that any currently diagnosed psychiatric disorder other than PTSD was first manifested in service and/or is causally related to event(s) in service? A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries as well as symptoms, and that her reports must be considered in formulating the requested opinion. However, the examiner is free to draw any reasonable inferences from a review of the entire evidentiary record. An absence of evidence in the service treatment records and service personnel records is an insufficient basis, by itself, for a negative opinion. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the June 2011 supplemental statement of the case. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case, with an appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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). _________________________________________________ A. JAEGER 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).