Citation Nr: 1325647 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 10-19 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) from August 2007 and January 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) St. Petersburg, Florida. In February 2012, the Veteran testified before the Board at a hearing held at the RO. In July 2012 and February 2013, the Board remanded the claims for additional development. In July 2013, the Veteran submitted additional medical evidence after the most recent supplemental statement of the case was issued. The evidence includes an opinion relating the Veteran's PTSD with his service and a description of his current psychiatric symptoms. The Veteran did not provide a waiver of consideration of that evidence by the agency of original jurisdiction. 38 C.F.R. § 20.1304 (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Additional development is necessary prior to further disposition of the claim. The Veteran contends that his current psychiatric disorder, variously diagnosed during the appeal period as an anxiety disorder, depression, and posttraumatic stress disorder (PTSD), was caused or aggravated by his service. He contends that his depression and anxiety began after he was involved in a physical altercation for self-defense purposes and necessitated months of daily counseling through an in-service counseling program. He also contends that his current PTSD, depression, and anxiety are due to being raped while in service. Alternatively, he contends that his PTSD and anxiety began after a machine exploded near him while stationed in Germany. On previous remand, the Board directed the RO to obtain a new VA psychiatric examination if the Veteran submitted new information to corroborate that he was raped in service. No examination was conducted. Following the most recent supplemental statement of the case, the Veteran submitted a medical nexus opinion relating his current PTSD to military sexual assault, VA treatment records showing continuing symptoms due to his PTSD, and two lay statements, from his wife and from his brother, stating that once he returned home from service his psychiatric functioning had changed. The Veteran did not submit a waiver of RO jurisdiction for this evidence. Accordingly, the Board finds that a new VA examination should be obtained. More recent VA treatment records should also be obtained, in order to determine the basis for the submitted nexus opinion. By way of history, service personnel records reflect that in September 1980, the Veteran received disciplinary action for disorderly conduct, assault, and destruction of government property. Those records reflect that the Veteran and another serviceman became involved in a verbal altercation after the Veteran took food from a grill, ate a small portion of it, and then put the remains back on the grill. The serviceman was noted to have tried to counsel the Veteran when the Veteran grabbed him by the face and punched him in the stomach. Later, the Veteran was belligerent and bit another soldier on the right arm. Then, he kicked a door with his foot that was dead bolted. He had a previous offence of wrongful possession and transfer of controlled substance. Post-service treatment records reflect that in October 1997, the Veteran was assessed for having a possible stroke on his right side and was diagnosed as having rule out organic brain syndrome. VA treatment records reflect that in September 1999, the Veteran sustained a gunshot to the right side of his face and chest. Thereafter, he began treatment for PTSD and depression related to the incident. In December 1999, the Veteran reported that he would get "shaky" with loud noises or sounds. His problems began in 1979 when there was an explosion near him which scared him and caused him to develop headaches. He had recently been shot which had re-aggravated his original fears. The diagnosis was probable PTSD with depression. In February 2000, he reported having an emotional break down during the trial of his assailant. In June 2000, he felt frustrated because of the physical residuals of being shot. He did not seem unusually depressed or anxious but felt upset when faced with the family of the person who shot him. In December 2000, he stated that some of his anxiety had been a problem for many years, even before the incident. In January 2000, the Veteran reported having anxiety problems dating back to sexual abuse by babysitters, having been near an exploding cleaning machine in 1978 while in service for which he received psychiatric treatment and then privately from 1981 to 1982. He had been unable to work since the shooting and was experiencing PTSD symptoms related to the assault. I n July 2002, the Veteran reported that his psychological problems began early in life due to physical abuse as a child. He did not want to be around people. He had used alcohol and drugs for many years but was no longer using any substances. He reported that he was treated in the military for his condition with medications and recalled that Serax had been helpful. In February 2003, the Veteran was dealing with the trauma of when his mother would lock him in a closet when he was young. He was reflecting on when he was "raped as a child, while in the military, and most recently being shot." In June 2010, the Veteran reported having a long history of mental illness dating back to the 1980s. He stated that two guys in German "more or less" tried to rape him. He reported that someone came into the room while it was happening and that he had received mental health intervention following the accident. In November 2011, he reported having military trauma while in Germany that left him with sexual trauma memories. A brief mental status examination resulted in the diagnosis of PTSD, chronic, military sexual assault. On September 2012 VA psychiatric examination, the Veteran reported that he was sexually abused by a babysitter when he was young and had not thought about it until he was raped in service. He stated that following the rape, he was placed in a mental health program for two hours of counseling a day for one year. After the rape, he got into fights to try to get out of the military. He had anxiety particularly in a crowd or in an enclosed space. He had a low mood and lost interest in things easily. The examiner diagnosed the Veteran with an anxiety disorder. The examiner concluded that the Veteran's anxiety disorder was not caused or the result of his service, including the sexual assault in service. The examiner explained that there was no objective medical evidence to support that the rape occurred or that he underwent mental health treatment in service. The examiner reviewed the VA treatment records, particularly a February 2000 record showing no finding of any mental state impairment despite the Veteran's report of a decline in memory and concentration. That was significant because on the current examination, he presented inconsistent symptom presentation and his testing results did not show significant cognitive impairment. The examiner explained that the SIMS test was administered as a measure of symptom validity and the Veteran's scores were well above the recommended cut-off test, which was 14 and the Veteran's was 56. Even when using a higher cut off score, the Veteran was greatly elevated which was highly suggestive of malingering or feigning symptoms. He endorsed symptoms that were highly atypical of individuals with genuine cognitive or psychiatric conditions. Those results made it difficult to rely on his subjective reports of sexual assault being valid. Moreover, there were inconsistencies in the record with regard to the origins of his anxiety. He had previously reported anxiety related to car accidents, financial stress, and relationship conflicts. Overall, the examiner could not opine that the Veteran's current complaints had anything at all to do with his service experience 32 years previously. After a thorough search, the VA has been unable to obtain any psychiatric records from service, though previous remand did uncover service treatment records that did not reference any psychological symptoms. In light of the new evidence which may show evidence of sexual assault in service, and because there is currently no VA opinion regarding whether the Veteran's current psychiatric disorder was caused or aggravated by the altercation in service or the loud explosion in service, a new VA examination and opinion is necessary prior to disposition of the claim. 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. Request that the Veteran identify any outstanding treatment records relevant to his claim. After securing any necessary authorization from him, obtain all identified treatment records, to specifically include all VA treatment records dated since January 2012. All reasonable attempts should be made to obtain such records. Notify the Veteran of any unsuccessful attempts to obtain records. 2. After completion of the foregoing, schedule a VA evaluation to determine the etiology of the Veteran's acquired psychiatric disorder. The examiner should review this Remand, as well as the claims file, and should note that review. A thorough rationale should accompany any opinion reached. a) Does the medical and lay evidence, and available service records, indicate that the claimed in-service personal assault occurred? b) If a diagnosis of PTSD is appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the evidence of record (whether by the RO or in the case of the alleged personal assault, in the examiner's opinion) was sufficient to produce PTSD; (2) whether each diagnostic criterion to support the diagnosis of PTSD has been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors sufficient to produce PTSD. In offering these assessments, the examiner must acknowledge and comment on the lay evidence. Any opinions expressed by the examiner must be accompanied by a complete rationale. c) If the Veteran suffers from a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not (a 50 percent or greater probability) that any currently demonstrated psychiatric disorder, to include anxiety or depression, is related to the Veteran's active duty, to include i) the reported rape, ii) the record of disciplinary action and any subsequent counseling, and iii) the explosion of a machine. Again, in offering the opinions, the examiner must acknowledge and comment on the lay evidence. 3. Then, readjudicate the claim. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Thereafter, return the case to the Board. 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). _________________________________________________ M. E. LARKIN 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).