Citation Nr: 1320997 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-03 090 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an innocently acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and P.B. ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from April 1979 to April 1982, from October 1984 to January 1985, from October 1987 to July 1991, and from January 1994 to September 1995. This matter initially came to the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision by the RO. In August 2012, the Board remanded the Veteran's claim in order to have her scheduled for a hearing before a Veterans Law Judge. The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge in February 2013. A transcript of the hearing has been associated with the Veteran's VA claims folder. The appeal is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on her part. REMAND The Veteran is seeking service connection for an innocently acquired psychiatric disorder due to in-service sexual trauma. For the following reasons, the Board finds that the Veteran's appeal must be remanded to ensure that she is accorded full compliance with the statutory duty to assist. The record reflects that the Veteran has been diagnosed with PTSD, a mood disorder, and major depressive disorder. See a February 2012 statement from M.L., M.D.; see also an October 2000 VA treatment record. She contends that she was sexually assaulted on multiple occasions while on active duty. Cases involving allegations of personal assault fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the veteran complains. Therefore, evidence from sources other than the Veteran's service records may corroborate an account of a stressor incident. See, e.g., Patton v. West, 12 Vet. App. 272, 281 (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; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(4). 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. Id. 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 the present case, the Veteran's service treatment records document deterioration in her work performance. Specifically, between 1984 and 1985, the Veteran performance was observed to have decreased in every area that was evaluated. The comments attached to her 1985 evaluation also note that she had completed less than the minimum production requirement and that she required regular supervision. The record also includes an August 2006 statement from L.S. which recounted that, while on leave, the Veteran reported that she had been raped after arriving at her duty station. In support of her claim, the Veteran submitted a February 2012 statement from a physician who reported that the Veteran "endorse[d] continued memories[,] flashbacks [and] nightmares due to a trauma that she experienced while in the military." The physician did not, however, relate any of the Veteran's psychiatric disorders to her in-service assault. Nor did she comment on the VA treatment records which indicated that the Veteran's acquired psychiatric disorders was related to factors other than her active duty service. Consequently, this issue contains certain questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions concern whether the Veteran's diagnosed psychiatric disorder(s) are related to her active duty service, to include the in-service sexual assault. See Charles v. Principi, 16 Vet.App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). The record also indicates that the Veteran has been receiving ongoing treatment from the VA Medical Center (VAMC) in Miami, Florida. On remand, the Veteran's treatment records should be obtained and associated with his claims folder. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet.App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and ask that she identify the names and addresses of all VA and non-VA health care providers who have treated her for the claimed psychiatric disorder since service. After procuring authorization from the Veteran for release of all identified records, as appropriate, the RO should obtain copies of all such records. The RO should also obtain any ongoing treatment records from the VAMC in Miami, Florida. All efforts to obtain such records should be documented in the claims folder, and all available records should be associated with the claims folder. 2. The Veteran then should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed innocently acquired 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 her service treatment records, post-service medical records, and lay assertions. The examiner should identify all current acquired psychiatric disorder(s). For each diagnosis identified, the examiner should state whether it is at least as likely as not that the current disability had its clinical onset during since service or otherwise is related to another event or incident of a period of active service, to include her in-service sexual trauma. (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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinion. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 (the Court) 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). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).