Citation Nr: 1323857 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-35 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to October 1977. Further, the record reflects he had additional service in the Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in June 2009 and February 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran and his spouse provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2011. A transcript of this hearing has been associated with the Veteran's VA claims folder. Further, the Veteran submitted additional treatment records at this hearing, and waived initial consideration of such evidence by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304 (2012). See Transcript p. 2. For the reasons stated below, the Board finds further development is warranted in this case. Accordingly, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, further development is required in order to comply with the duty to assist. The Veteran contends that he has PTSD due to an in-service personal assault that occurred Memorial Day Weekend of 1975. He also contends that his behavior changed as a result of the assault, to include several disciplinary matters following the assault to include being absent without leave (AWOL). Establishing service connection specifically for PTSD requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a) (2010). In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); 38 C.F.R. §§ 3.303(a), 3.304. If a PTSD claim is based on an in-service personal assault, evidence from sources other than the Veteran's service records may corroborate an account of a stressor incident. 38 C.F.R. § 3.304(f)(5) . Further, after-the-fact medical evidence can be used to establish a stressor based on personal assault. See Bradford v. Nicholson, 20 Vet. App. 200 (2006); Patton v. West, 12 Vet. App. 272, 278 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (Observing that the United States Court of Appeals for Veterans Claims (Court) erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton, 12 Vet. App. at 280 (Rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence' " in personal-assault cases). The Veteran's service records do not document an assault. His service treatment records reflect he indicated on a Report of Medical History completed in conjunction with his August 1974 enlistment examination that he had not experienced nervous trouble of any sort. His psychiatric condition was clinically evaluated as normal on the enlistment examination itself. His service personnel records note several disciplinary matters beginning in June 1975, to include several incidents of being AWOL. As these incidents begin in June 1975, it is consistent with the Veteran's contention that his behavior changed following an assault during Memorial Day Weekend of 1975. (At the same time, these events also are observed to begin not long after the Veteran's first duty assignment following his initial entry training.) An Enlisted Evaluation Data Report, signed by the Veteran's supervisor in September 1976, reflects that his military occupational specialty (MOS) test ratings were in the very low category for 6 of the 8 categories, low in 1 of the categories, and average in 1 category. (In this regard, records also show the Veteran had completed only 1 year of high school prior to enlistment.) Further, he indicated on a Report of Medical History completed in conjunction with his August 1977 expiration of term of service examination that he had experienced nervous trouble. However, no comments were made regarding this purported nervous trouble in the physician's comments section, and the Veteran's psychiatric condition was again evaluated as normal on the examination itself. The Veteran was accorded a VA mental disorders examination in April 2009 regarding this case. He was diagnosed with mood disorder with depressive features due to post-colostomy status and abdominal pain. Further, the examiner opined that this disorder was not caused by or is not the result of his experiences in the military. The examiner noted while the Veteran did endorse having undergone sexual assault while in the military, it was only speculation as to whether or not this occurred and/or had any ramifications on how his life went post-military. The examiner also noted the Veteran acknowledged he did not report this incident, nor did the examiner find any evidence of such an incident in review of the Veteran's military records. Moreover, the examiner stated that the Veteran was vague in describing the date of the assault, and in the examiner's clinical experience, victims of sexual assault usually remember the date or at least the approximate date of the incident quite readily. The Board notes, however, that the Veteran indicated at his hearing that the assault occurred Memorial Day Weekend of 1975, and that he had trouble remembering the date at the time of the April 2009 VA examination because he was in a confused state due undergoing surgery and being on medication around that time. See Transcript pp. 4-5. Further, it does not appear the examiner addressed the purported behavioral changes indicated in the service personnel records. A December 2010 VA outpatient psychiatry note shows the Veteran was diagnosed with PTSD due to military sexual trauma. However, it is not clear to what extent, if any, the examiner reviewed the Veteran's service records in making this finding, nor does it address the purported behavioral changes indicated in the service personnel records. In view of the foregoing, the Board finds that the medical evidence of record, to include the April 2009 VA examination, is not adequate for resolution of this case. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, a remand is required in order to accord the Veteran and adequate examination. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). The Board further observes that the record indicates the Veteran had service in the Reserves prior to his September 1974 to October 1977 period of active duty. His DD Form 214 shows prior inactive service, and service personnel records include a document stating he was discharged from the Reserves in order to enlist into active service. There is also indication that he was discharged into Reserve service in October 1977. However, it does not appear his Reserve records are on file. Such records may demonstrate whether his disciplinary actions beginning in June 1975 were, in fact, indicative of behavioral changes and/or that he had psychiatric problems following his separation from active duty. Therefore, a remand is also required to try and obtain these records. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who have treated the Veteran for his psychiatric problems since July 2010. After securing any necessary release, obtain those records not on file. 2. Request additional information from the Veteran regarding his purported in-service stressor(s), to include specific dates and places where these events occurred. Further, in accord with 38 C.F.R. § 3.304(f)(5), the Veteran should be advised of the alternate sources of evidence for substantiating his account of an in-service personal assault. The Veteran should also be notified that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptomatology. The Veteran should be provided an appropriate amount of time to submit the requested information. 3. After obtaining any additional information from the Veteran regarding his purported in-service stressors to the extent possible, attempt to secure through official channels any personnel records and medical records from the Veteran's Reserve service prior and subsequent to his September 1974 to October 1977 period of active duty. 4. After obtaining any additional records to the extent possible, the Veteran should be afforded a new VA psychiatric examination to determine the current nature and extent of any psychiatric disability found to be present, to include PTSD, if diagnosed. The claims folder should be made available to the examiner for review before the examination. For any acquired psychiatric disorder other than PTSD found to be present, the examiner should indicate whether it is at least as likely as not (50 percent or greater likelihood) that the disability had its onset during service. With respect to any diagnosis of PTSD, the examiner should indicated whether it is at least as likely as not (50 percent or greater likelihood) that the disability is related to the Veteran's military service, to include the purported in-service personal assault. A complete rationale for any opinion expressed should be provided, and should reflect consideration of the contentions of behavioral changes in the Veteran as well as the documented in-service disciplinary problems beginning in June 1975. 5. After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the August 2010 SOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ MICHAEL E. KILCOYNE 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).