Citation Nr: 1323214 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 04-41 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a psychiatric disorder, to include intermittent explosive disorder and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from April 1991 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has reviewed the physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In August 2007, the Veteran presented testimony relevant to the appeal at a hearing before the undersigned Veterans Law Judge held at a VA office in St. Petersburg, Florida. A transcript of the hearing is associated with the record. In November 2010, the Board denied service connection for a psychiatric disorder, to include intermittent explosive disorder and PTSD, denied service connection for bilateral flat feet (pes planus), and granted service connection for brachial plexopathy. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In an April 2012 Memorandum Decision, the Court vacated the portion of the Board's decision denying service connection for a psychiatric disorder and remanded the claim to the Board for further development and appellate review. The Court affirmed the portion of the Board decision denying service connection for bilateral flat feet and dismissed the appeal of the award of service connection for brachial plexopathy. In October 2012, the Board remanded the service connection claim for a psychiatric disorder, to include intermittent explosive disorder and PTSD, to request records that pertain to the court martial of the drill instructor whom the Veteran alleges is the assailant in the claimed personal assault. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In the October 2012 Board Remand, the Board directed the AMC/RO to attempt to retrieve any service personnel records, including court martial records, belonging to a Staff Sergeant (SSGT) H, USMC. The AMC/RO was to seek any disciplinary records to include court martial proceedings, or administrative or personnel actions such as nonjudicial punishment, that may pertain to action taken against SSGT H. If records belonging to SSGT H were unable to be obtained, the RO/AMC was to notify the Veteran. The Veteran was also to be afforded further medical examination if additional evidence was obtained that tended to verify the alleged in-service stressor of sexual assault. Thereafter, the AMC/RO was to readjudicate the claim, furnish a Supplemental Statement of the Case (SSOC) to the Veteran and the representative if benefits were denied, and allow an appropriate time period for response. Pursuant to the Board's Remand directive, the AMC asked the Veteran to provide additional identifying information regarding SSGT H so that VA could obtain his personnel file. See October 2012 letter from the AMC. On a VA Form 21-4138 received in November 2012, the Veteran identified the unit to which he and SSGT H were assigned at the time of the alleged sexual assault, provided the correct spelling of the sergeant's last name, and stated that he did not have any more information on the sergeant. In December 2012, the AMC advised the Veteran that copies of treatment records or other evidence from the Naval Criminal Investigative Service (NCIS) had been requested. By way of e-mail correspondence dated in December 2012 and March 2013, the AMC contacted the NCIS to request any disciplinary records for SSGT H pertaining to the alleged sexual assault of the Veteran that took place from April 1991 to May 1991 and the alleged court martial due to such conduct that occurred in July 1991. In March 2013, the NCIS responded that it was unable to provide any records relating to the request because NCIS did not show a specific investigation referencing the Veteran as a victim, subject, or co-subject; however, the NCIS had an incorrect last name for the Veteran. Thereafter, the NCIS considered the correct last name for the Veteran and, in April 2013, responded that it did not hold a specific investigation referencing the Veteran as a victim, subject, or cross reference on any investigation. In May 2013, the Veteran was advised that the NCIS was unable to provide any records relating to the alleged series of sexual assaults, and a formal finding on the unavailability of record relating to the alleged series of sexual assaults was made. Despite the above efforts by the AMC to obtain records pertaining to a court-martial of the Veteran's drill instructor due to the alleged sexual assault, the AMC has not complied with the Board's remand directive. First, the AMC's May 2013 formal finding of unavailability of records was based primarily on the negative responses received from NCIS for the requested records; however, the NCIS only searched for investigation records with the Veteran's name, and not SSGT H's name. Consequently, there has not been compliance with the October 2012 Board Remand order. Second, while the Veteran's service personnel records were obtained in December 2012, there has been no attempt to obtain SSGT H's service personnel records, as directed by the Board in the October 2012 Remand order. The Court has specifically directed VA to obtain any records pertaining to the court-martial for the drill instructor alleged to have committed a sexual assault against the Veteran. For these reasons, the Board finds that another remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should attempt to retrieve any service personnel records, including court-martial records, belonging to Staff Sergeant H, USMC (last name detailed in transcript of August 2007 hearing, and in Veteran's stressor statement submitted in February 2010), without limiting the search to only those records where the Veteran is listed as a victim or witness. The RO/AMC should particularly seek all disciplinary records to include court martial proceedings, nonjudicial punishment, or administrative discharge actions that may pertain to action taken against SSGH H in about July 1991. 2. After completion of the development outlined in paragraph 1 above, the RO/AMC should assess any additional evidence added to the record, and, only if any additional evidence tends to verify the alleged in-service stressor of sexual assault by SSGT H on the Veteran, should the RO/AMC consider an additional VA compensation examination and nexus opinion. If an additional VA PTSD examination is provided, the examination should assist in determining the causation or etiology of any current psychiatric disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The relevant documents in the record should be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. a. The examiner should first identify any and all current psychiatric disorders (diagnoses), commenting specifically on post-service treatment records and reports. A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f) (2012). b. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that any currently diagnosed psychiatric disorder, to include PTSD, was incurred during or caused by active service. The examiner should specifically comment on whether the Veteran's claimed in-service stressor of being sexually assaulted is sufficient to support a PTSD diagnosis using the DSM-IV criteria, and whether the Veteran's current PTSD was caused by such a stressor. If PTSD is diagnosed, the examiner should specify which DSM-IV criteria (309.81 A-F) are met in this case to support such diagnosis. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. c. If the opinion and/or supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should so specify in the report, and explain why any opinion could not be offered. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without resort to speculation, the examiner should state whether the inability to provide the opinion is due to a need for further information (with such needed information identified) or because the limits of medical knowledge have been exhausted regarding the etiology of the Veteran's claimed PTSD and/or other psychiatric disorder. 3. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and the representative be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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. PARKER 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).