Citation Nr: 1320444 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-45 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to March 1978. She also had prior service with the U.S. Army Reserve from July 1975 to December 1975; presumably this includes unverified periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied claims of service connection for PTSD, bipolar disorder, and a bilateral knee injury. In May 2011, the Veteran testified before the undersigned Acting Veterans Law Judge during a video conference Board hearing. A transcript of the hearing has been associated with the claims file. In a November 2011 decision, the Board denied the recharacterized claim for service connection for an acquired psychiatric disorder, to include PTSD. It also granted a claim for service connection for chondromalacia of the right knee. The Veteran appealed the denial of her psychiatric claim to the United States Court of Appeals for Veterans Claims (Court). In a July 2012 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion) by the Veteran's attorney and VA's General Counsel. The Court action vacated the Board's November 2011 decision as to her psychiatric claim and remanded it for further adjudication. The case has been returned to the Board for further appellate consideration. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant, if further action is required on her part. REMAND VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). Subsequent to the RO's denial of the Veteran's claims for PTSD (due to sexual trauma) and a bipolar disorder, the Court decided that the scope of a mental health disability claim 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. Clemons v. Shinseki, 23 Vet. App. 1 (2009). While the RO adjudicated a claim for service connection for PTSD and a service connection claim for bipolar disorder, information in the claims file shows that the Veteran has also been diagnosed with a number of psychiatric disorders, including paranoid schizophrenia. Accordingly, the Board recharacterized her claims for PTSD and bipolar disorder more generally to include other psychiatric disabilities. The parties concluded in the Joint Motion that the Board's previous statement of reasons and bases for denying the Veteran's psychiatric claims was inadequate. While the Board found that there was clear and unmistakable evidence that the Veteran had experienced schizophrenia prior to service, the Joint Motion stated that the Board had not cited to any specific statement or finding in her service treatment records to support its conclusion that her pre-existing schizophrenia was not aggravated during service. The parties in the Joint Motion went on to state that service treatment records provided at least some evidence supportive of finding an increase in schizophrenia during service and that the Board did not fully address all the relevant evidence that might be considered favorable to the Veteran's claim. In March 2013, the Veteran's attorney submitted a March 2013 private psychiatric evaluation by Dr. R.K.G. He diagnosed the Veteran with paranoid schizophrenia, a somatoform disorder, and a borderline personality disorder. Dr. R.K.G. stated that both the paranoid schizophrenia and the borderline personality disorder pre-existed the Veteran's period of active service and that it was at least as likely as not that each was aggravated during her period of active duty. However, in attempting to explain aggravation during service this private examination report referred to page numbers [probably of the record submitted to the Court in this appeal], cited "aggravating events" generally that were noted as mentioned earlier in the 19-page single-spaced typewritten report, and noted without any detailed explanation that both the paranoid schizophrenia and the borderline personality disorder were considered to be "aggravated" conditions. The Board cannot find this private examination and medical opinion adequate for adjudication purposes because it lacks specific detail or explanation why two of the diagnosed pre-existing service disorders were aggravated during the Veteran's period of service. When an examination report is inadequate, the Board should remand the case for further development. Bowling v. Principi, 15 Vet. App. 1, 12 (2001). Dr. K.M.G. also explained that the somatoform disorder was a pain disorder associated with both psychological factors and a general medical condition, and he asserted this diagnosis was considered to have been caused by the Veteran's period of military service. VA compensation may not be paid for a personality disorder as it is specifically excluded as a disease or injury within the meaning of applicable legislation providing for VA compensation benefits. A personality disorder is not service connectable as a matter of express VA regulation. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012). The only possible exception is if there is additional disability due to aggravation of a personality disorder during service by superimposed disease or injury. VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514- 515 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90 (July 18, 1990); and VAOPGCPREC 11- 1999 (Sept. 2, 1999). Concerning the Veteran's claim for service connection for a psychiatric disability, to include PTSD, the Board denied service connection for PTSD because VA could not verify an inservice stressor. Therefore, the Veteran was never scheduled for a VA mental examination. In her written submissions, and during her Board testimony, she has principally contended that she has PTSD because she was raped and assaulted several times while on active duty. She has contended that she was beaten by her husband while on leave after basic training because she would not work as a prostitute; raped by her assistant section chief preceding a suicide attempt on July 4, 1977; attacked by a female corporal in April 1976; and asked for sexual favors by one of her superiors in the food service unit in which she worked in Korea to make life easier for her as this officer would try to end her harassment by another male officer. In her notarized December 2012 statement, the Veteran also mentioned that she had made at least one request to be transferred after one of these incidents, but such request had been denied. Her service treatment records also note a significant psychiatric history, including a referral to Walter Reed for psychiatric evaluation, a complaint of dissociative states, and pre-service inpatient treatment for schizophrenia; and complaints or treatment for open lesions on her thighs, an injured wrist, an injured jaw, and being hit in the nose. Service personnel records also contain evidence of two disciplinary proceedings under Article 15 of the Uniform Code of Military Justice in June 1976 and December 1977 for stealing money, introducing a member of the opposite sex into troop billets, and being absent from duty; and evidence she was dismissed early from active duty for inability to adapt to Army life and failure to maintain acceptable standards for continued service. 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), that is, a diagnosis which meets the criteria in the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); (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). 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 December 2007 and March 2008 reveals that not all those steps have 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 inservice 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 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. While the Veteran has provided lay evidence of sexual or personal assaults during service, the Board notes that the RO has failed to confirm that the Veteran was ever assaulted in these incidents. However, the Board also notes that the Veteran's service personnel records show two Article 15 disciplinary proceedings. Her service treatment records shows complaints of lesions on her thighs, an injured wrist, an injured jaw, and being hit in the nose. Other documents indicate that she was discharged early from active duty because of her inability to adapt to Army life. In addition, post-service medical records show a diagnosis for PTSD. In her numerous written submissions and Board testimony, the Veteran claims her mental impairment is associated with her assaults in service. The Board finds, therefore, that the record contains evidence of behavior changes that may constitute credible evidence of the alleged inservice sexual and personal assault stressors. To date, VA has neither afforded the Veteran an examination, nor solicited a medical opinion as to the onset or etiology of any psychiatric disability, to include PTSD. The Board notes that the Veteran's attorney recently submitted a March 2013 report by a private psychologist that the Board has found inadequate for purposes of granting service connection at this time. 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 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. 38 U.S.C.A. § 5103A(d)(2) (West 2002); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Diagnoses of PTSD and other psychiatric disorders are already of record. The Veteran's inservice psychiatric evaluation at Walter Reed and her subsequent early discharge for failure to maintain acceptable standards for continued service are also of record. In written statements and oral testimony associated with this appeal, the Veteran has advanced plausible contentions that she was assaulted in service by higher ranking personnel and her own husband. Therefore, on remand, the Veteran should be scheduled for an appropriate VA examination to ascertain whether she now has PTSD that is etiologically related to the asserted inservice personal or sexual assaults she contends arose during service and whether she has any other acquired psychiatric disorder that is either related to service or pre-existed service and was aggravated therein. Therefore, based on Clemons, the Joint Motion, the Veteran's notarized December 2012 statement, and the March 2013 private evaluation, on remand the RO should schedule the Veteran for a VA mental examination in order to determine whether any diagnosed psychiatric disorder, whether PTSD based on sexual assault, paranoid schizophrenia, bipolar disorder, a borderline personality disorder, or a somatoform disorder is related to the Veteran's period of active duty or, if such condition pre-existed service, whether that disorder was aggravated beyond the normal progression of the disability during her period of service. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (undebatable) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2002; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2012). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of a disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012). A finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Otherwise, in order to establish service connection, generally the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In March 2013, the Board received from the Veteran's attorney a copy of an August 2011 decision from an administrative law judge from the Social Security Administration (SSA) awarding the Veteran disability benefits for the Supplemental Security Income (SSI) program. However, there is no indication that the RO ever attempted to obtain the Veteran's SSA medical file. The August 2011 decision reflects that the Veteran was awarded disability benefits for a cognitive disorder not otherwise specified, bipolar disorder, recurrent depression, PTSD, and adhesive capsulitis of the shoulder. Medical records associated with the SSA may be relevant to the question of whether any of the Veteran's acquired psychiatric disorders are related to service or pre-existed service and were aggravated therein. The Board is aware that it need not obtain SSA records prior to determining that there is no reasonable possibility that such are relevant to the Veteran's claim for VA compensation, see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that the legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the Veteran substantiate her claim for benefits, the duty to assist requires VA to obtain the records). However, this is a case in which that possibility cannot be excluded. Therefore, on remand the RO shall attempt to obtain a complete copy of the Veteran's SSA medical file. On remand, the RO also should obtain and associate with the claims file all outstanding VA and private medical records related to the Veteran's claim for service connection for an acquired psychiatric disorder. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO 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 RO shall contact the Veteran and her attorney and ask them to specify all private and VA medical care providers who have treated her for any mental disorder. After the Veteran has signed the appropriate releases, the RO shall then attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file, in particular any records of treatment or evaluation at VA hospitals or clinics in Los Angeles for the period from discharge from service in March 1978 to the present. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and her attorney are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. The RO shall contact the Social Security Administration (SSA) and obtain and associate with the claims file copies of the Veteran's records regarding her application for SSA disability benefits for the Supplemental Security Income program, including any medical records upon which the decision was based. 4. After the development requested above has been completed, the RO shall schedule the Veteran for a VA examination with a psychiatrist or psychologist to determine the nature and likely etiology of the claimed PTSD and bipolar disorder or any other diagnosed psychiatric disorder(s), such as paranoid schizophrenia, a borderline personality disorder, or a somatoform disorder. The entire claims file, including a copy of this Remand, must be made available to the examiner for review. The examiner shall note such review, and identify and discuss important medical and lay evidence gleaned therefrom, in an examination report. The examiner then shall describe and discuss the Veteran's psychiatric symptomatology. All indicated diagnostic studies and evaluations deemed necessary shall be performed, and all findings shall be reported in detail. All tests deemed necessary by the examiner should be undertaken. Based on the examination and record review, the examiner should provide opinions as to the following: (a) To the extent that the psychiatric disorder is diagnosed as PTSD, the examiner shall consider the Veteran's claimed in-service assaults when she was beaten by her husband while on leave after basic training because she would not work as a prostitute; raped by her assistant section chief preceding a suicide attempt on July 4, 1977; attacked by a female corporal in April 1976; and seduced by one male superior in her food service unit in Korea who asked for sexual favors to make life easier for the Veteran by ending the harassment of another male officer. The examiner is asked to assess whether it is at least as likely as not (a 50 percent probability or greater) that any of these claimed in-service stressors are: (1) adequate to support the Veteran's diagnosis of PTSD; and (2) related to her symptoms. 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. If the examiner does not diagnose PTSD, the examiner shall explain why the Veteran does not meet the criteria for a diagnosis of PTSD. (b) For any diagnosis of a psychiatric disorder that pre-existed service, the examiner should state (1) whether there is clear and unmistakable (undebatable) evidence that the Veteran had a pre-existing service disorder and (2) whether there is clear and unmistakable evidence that such disorder was not aggravated by service (i.e., did not increase in severity beyond the normal progress of the disease in service). If clear and unmistakable evidence is found as to any factor, the examiner should identify such evidence used to come to these conclusions. If both questions are answered in the affirmative, the examiner should state whether it is at least as likely as not (i.e. a 50 percent probability or greater) that such pre-existing disability was aggravated beyond the natural progress of the disease during service. (In the case of the personality disorder, there must be a superimposed injury - and such injury should be specifically noted in the report). (c) For any diagnosis of a psychiatric disorder that did not pre-exist service, the examiner is also asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's psychiatric disorder was incurred during her active service or is otherwise etiologically related thereto. (d) The examiner should also comment on whether and why his or her opinion agrees or disagrees, in part or in whole, with the private psychiatric report that the Veteran's attorney submitted to VA in March 2013. (e) The examiner must discuss the rationale of all opinions, whether favorable or unfavorable, citing to specific evidence in the file, as well as sound medical principles. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. Thereafter, the RO shall readjudicate the Veteran's claim with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this Remand. If the decision with respect to the claim remains adverse to the Veteran, he and his attorney should be furnished a Supplemental Statement of the Case and afforded an appropriate period of time within which to respond thereto. 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). _________________________________________________ SUSAN J. JANEC Acting 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).