Citation Nr: 1322935 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 12-26 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a disability of the rectum and/or anus. REPRESENTATION Veteran represented by: Daniel Smith, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran INTRODUCTION The Veteran served on active duty from May 12, 2009 to June 30, 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In December 2012, the Veteran testified at by videoconference technology before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND Unfortunately, further development is necessary in the instant case. The Veteran contends, in essence, that he has PTSD due to traumatic experiences in service, specifically personal assaults while in basic training. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)]; a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. 38 C.F.R. § 3.304(f) (2012). The Board observes the regulations now provide that VA will not deny a post-traumatic stress disorder 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)(3) (2012). 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. 38 C.F.R. § 3.304(f)(3) (2012). In this regard, the Board observes that the previously provided notice letters do not provide the required notice with respect to PTSD claims based on personal assault. Pursuant to the VCAA, the Board observes that the Veteran should be sent a letter that advises him as required by 38 C.F.R. § 3.304(f)(3) and allowed the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. The RO/AMC should schedule the Veteran for a VA psychiatric examination by a board of three psychiatric professionals to determine whether the Veteran suffers from PTSD as a result of a verified or corroborated stressor or currently has another acquired psychiatric disorder related to his time on active duty. The RO requested records from an ongoing investigation concerning the Veteran's allegations from the Criminal Investigation Division (CID) at Fort Benning, Georgia. The CID responded that records would not be released until the investigation was complete. The RO/AMC should obtain such records on remand. Additionally, the Board notes that the Veteran submitted a DD Form 2910, Victim Reporting Preference Statement in August 2012. The RO/AMC should attempt to authenticate this document through official sources. The record indicates that the Veteran receives benefits from the Social Security Administration. The Court has long held that the duty to assist includes requesting information and records from the Social Security Administration which were relied upon in any disability determination. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the Social Security Administration, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight); see also 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2). Therefore, the Veteran's records determining his entitlement to Social Security benefits must be requested. Additionally, there is a letter dated November 2012 from a provider at the Institute for Family Health. The RO/AMC should attempt to procure the Veteran's psychiatric records from this provider. Ongoing medical records should also be obtained from the New York VA Medical Center and the Vet Center. 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 the material could be determinative of the claim). The issue of entitlement to a TDIU as well as entitlement to service connection for a rectal/anal disability is inextricably intertwined with the issue of service connection for an acquired psychiatric disability to include PTSD. As such, action on these issues is deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran and his representative with the notice required in 38 C.F.R. § 3.304(f)(3) and an appropriate opportunity to respond. 2. Attempt to authenticate the DD Form 2910 submitted by the Veteran in August 2012 through official sources. 3. Obtain from the Social Security Administration the records pertinent to the Veteran's claim for Social Security disability benefits, including the medical records relied upon concerning that claim. Any negative search must be noted in the claims file and communicated to the Veteran. If it appears that additional attempts to obtain such records would be futile, then a memorandum of unavailability should be drafted and added to the claims folder. 4. Contact the CID at Fort Benning, Georgia in order to attempt verification of the Veteran's personal assault stressor. All records from the CID investigation must be obtained and associated with the claims file. If the investigation is not yet complete, further adjudication should be deferred until such time that the CID records can be associated with the claims file. 5. Obtain and associate with the claims file relevant treatment records, to include VA and Vet Center treatment records as well as records from the Institute for Family Health, not already associated with the claims file. Procure any necessary release from the Veteran. 6. After all of the above development is completed, schedule the Veteran for a VA examination, to be performed in-person by a team of three psychiatric examiners, to determine if a diagnosis of PTSD is warranted based on the verified/corroborated stressor and/or if any other acquired psychiatric disability is related to active service or any incident of active service. The Veteran's claims file, to include a copy of this REMAND, should be made available to and reviewed by the examiner. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 7. The AOJ should then re-adjudicate the claims. If the claims are denied, the Veteran and his representative should be issued a supplemental statement of the case, and be given an opportunity to respond before the case is returned to the Board. The Veteran 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). These claims 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). _________________________________________________ J.A. MARKEY 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).