Citation Nr: 1324747 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 09-39 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her mother ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service from November 1993 to February 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans' Affairs (VA), Regional Office (RO), in Philadelphia, Pennsylvania. The Veteran testified before the undersigned in April 2013. 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 After a careful review of the Veteran's claims file the Board finds that further development is warranted. The Veteran has a current diagnosis of PTSD; she asserts that this diagnosis is due to military sexual trauma (MST). The Veteran testified that when she was stationed on the USS Camden in October 1995 she was attacked by four men in the gym and raped by all of them. She testified that she did not report it to anyone, including family, because she was threatened that she would be killed before they got back to California; she testified that the first time she mentioned it was to a VA doctor in 2004. The Veteran testified that in December 1995 she found out that she was pregnant; she testified that she does not know who the father is and believes that she became pregnant during her MST. Service treatment records show that the Veteran was noted to be pregnant in January 1996 and her daughter was born on September [redacted], 1996. According to the Veteran's service treatment records she was seen in the clinic in October and November 1995 but it was due to a previous history of urinary tract infections and urethral implants that she was being treated for before October 1995. According to the Veteran's VA treatment records, she reported in January 2002 that from the ages of 10 to 15 she was beaten by her mother's boyfriend. The Veteran was first diagnosed with PTSD in October 2004; however, she denied any MST and stated that she was raped when she was 18 (prior to service) by a friend. The first mention in the Veteran's VA treatment records of MST was in 2006; however, her VA treatment records since 2006 state that she has a diagnosis of PTSD due to MST and there is no mention of the previous rape. The Veteran has not been afforded a comprehensive VA examination based on a review of the entire claims file to determine the current nature and etiology of her PTSD. An examination should be obtained when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service or service-connected disability, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that under § 3.304(f)(5), "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." The Federal Circuit held that a favorable medical opinion diagnosing PTSD must be weighed against all other evidence of record for purposes of determining whether a claimed in-service sexual assault has been corroborated. Menegassi, 638 F.3d at 1382 n. 1. Thus, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of the Veteran's PTSD; to include if it is at least likely as not related to an in-service MST. In addition, the Board notes that 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. 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. 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. 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)(3). Thus, the Board finds that the RO must send the Veteran the appropriate VCAA notice that deals with PTSD based upon sexual assault. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send an updated VCAA notice letter specifically notifying the Veteran of the evidence yet needed to substantiate her service connection claim for PTSD due to MST. Such letter should notify the Veteran that evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. 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. 2. The RO/AMC shall schedule the Veteran for a VA psychiatric examination by a board of two psychologists/psychiatrists to ascertain the precise nature and etiology of her PTSD. The entire claims file, including a copy of this Remand, must be made available to the examiner for review. The examiners shall discuss the Veteran's documented medical history and any assertions regarding whether her psychiatric disorder is due to service. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Based on a review of the claims file and the clinical findings of the examination, the board of two psychologists/psychiatrists should answer the following questions: A) Identify the Veteran's current psychiatric diagnoses. B) For each diagnosed psychiatric disorder, the examiners must opine whether such disorder is at least as likely as not (50 percent or greater probability) related to the Veteran's period of active service, to include as due to the Veteran's reported MST. In so opining, the examiners are asked in their medical judgment the likelihood the MST occurred. Any opinions expressed must be accompanied by a complete rationale. If an opinion cannot be given without resorting to mere speculation than the VA examiner must state so and further provide a reason for such conclusion. 3. After completing the above, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until she is so informed. She 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. (CONTINUED ON NEXT PAGE) 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). _________________________________________________ TANYA A. SMITH Acting 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).