Citation Nr: 1323397 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 11-13 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board notes that the Veteran was previously denied service connection for bipolar disorder and generalized anxiety disorder in January 2006. There is no evidence of an appeal of that decision in the claims file. The Veteran, through his attorney representative, submitted his current claim for service connection for PTSD in October 2008. The Board further notes that several VA treatment records, dated during the pendency of this appeal, reflect a diagnosis of bipolar disorder as well as an anxiety disorder as being an ongoing problem. However, the Veteran's submissions, as transmitted through his attorney representative, have continually limited the Veteran's issue in this claim to PTSD. The Board is cognizant of the decision of the U.S. Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, as noted, the Veteran has been very specific in this case as to PTSD being the issue involved for service connection. Neither the Veteran nor his attorney has indicated any desire to expand the current claim. Accordingly, the Board does not find a basis for re-characterizing the issue on appeal. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking service connection for PTSD based on an alleged in-service personal assault. In his affidavit dated in October 2008, the Veteran claims he was abducted at gunpoint, raped, and robbed in July 1969 and that this incident is the stressor that resulted in PTSD. The service treatment records and his personnel records in the file do not contain corroborating evidence of the alleged incident. The Veteran has been treated at VA Medical Center in Topeka, Kansas since April 2000 for, among other problems, psychological issues. His treatment has been for depression, bipolar disorder, generalized anxiety disorder, and PTSD. PTSD is diagnosed in October 2007. No VA examination was performed. While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2012). VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5.103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). In this case, further development in several areas will possibly aid in substantiating the claim. A VA psychiatric examination is needed. In October 2007, a VA psychiatrist (herein referred to as Dr. B.) diagnosed the Veteran with PTSD. In a letter from Dr. B that accompanied the Veteran's claim in October 2008, Dr. B. opined that the Veteran's PTSD is "based solely on the sexual battery that occurred in the service." There is no evidence of a PTSD examination. Service connection for PTSD requires (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 under criteria from the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). An examination is necessary to adjudicate this claim. The Veteran should be afforded and assisted in an opportunity to further develop his claim. For PTSD claims based on a personal assault, credible supporting evidence that the claimed in-service stressor actually occurred is necessary. 38 C.F.R. § 3.304(f). The Board notes that that the service treatment records and the Veteran's personnel records currently in the file do not offer corroboration for the alleged stressor. The Board notes that the Veteran claims he never told anyone about the alleged assault until decades later, however, the RO should seek the Veteran's military personnel records as they may be relevant. The Code of Federal Regulations provides specific guidance on corroborating evidence when a PTSD claim is based on in-service personal assault, as is the case here. Evidence from sources other than the veteran's service records may also be used to corroborate the veteran's account of the stressor. 38 C.F.R. § 3.304(f)(5). Further, the regulation provides that evidence of behavior changes following the claimed assault is one type of relevant evidence. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may constitute credible evidence of the stressor and such evidence includes, but is 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 receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). There are also outstanding Social Security Administration (SSA) records that should be associated with the claims folder. The file contains SSA data inquiry sheets that document that the Veteran began receiving payments in 2002 and that the onset of his disability was July 1999. However, the SSA records have not been associated with the file and it is unclear what disability resulted in the Veteran receiving SSA payments. Pursuant to VA's duty to assist, VA has an obligation to obtain relevant records in the custody of a federal agency, including those from the SSA. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Finally, updated VA treatment records should be obtained. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators, regardless of whether the records are physically in the file. 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 should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for psychiatric disorders since service. The RO should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. 2. The Veteran should be asked to provide any additional information and/or evidence that could be used to corroborate his claimed stressor in this case. Such request should remind the Veteran of the various forms evidence that can be submitted in this regard. 3. The RO should obtain the Veteran's military personnel records. The RO previously obtained the Veteran's DA Form 20; however, that is not the equivalent of the Veteran's complete personnel records file. 4. Obtain all records from the Social Security Administration (SSA) concerning any claim for disability benefits by the Veteran. 5. Only upon completion of the above, schedule the Veteran for a psychiatric examination, by a psychiatrist or psychologist who has not previously treated the Veteran. The entire claims folder, to include a complete copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. All indicated studies, tests, and evaluations, if any, should be performed as deemed necessary by the examiner. The results of any testing must be included in the examination report. The examiner should be advised that the Veteran is claiming service connection for PTSD based on a personal assault suffered and the nature and circumstances of the alleged assault. The examiner should also be advised that the Veteran has received outpatient VA mental health treatment. In that regard, the Veteran has received a diagnosis of PTSD by VA psychiatrist, Dr. B., in 2007. In addition, Dr. B. submitted a statement, dated in October 2008, wherein he opined that the Veteran's PTSD is "based solely on the sexual battery that occurred in the service." Upon examination, if a diagnosis of PTSD is made, the examiner should specify the stressor, or stressors, relied on in making the diagnosis. In formulating the opinion, the VA examiner psychiatrist is asked to address whether the Veteran exhibited behavior changes which may be indicative that a personal assault occurred; the examiner should review the Veteran's personnel records in the claims file to assist in offering this opinion. The requested opinion should take into consideration all relevant evidence following the incident, as well as the Veteran's own assertions. The report of examination must include the complete rationale for all opinions expressed. 5. Thereafter, the RO should review the claims folder to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and required opinion to ensure that they are responsive to and in compliance with this remand and if they are not, the RO should implement corrective procedures. 6. After undertaking any other development deemed appropriate, the RO should re-adjudicate the issue on appeal. If any benefit sought is not granted, the Veteran and his attorney should be furnished with a supplemental statement of the case and afforded an 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 or matters 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. 2013). _________________________________________________ MICHAEL MARTIN 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).