Citation Nr: 1325899 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-237 16A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2009 and August 2010 rating decisions of the Department of Veterans Affairs (VA) regional office (RO) located in Wichita, Kansas which denied entitlement to service connection for PTSD. The Board notes that this issue has previously been characterized as entitlement to service connection for PTSD. During the pendency of this appeal, VA treatment records have been associated with the claims file that note the Veteran as having major depressive disorder as well. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, this issue on appeal has been characterized to consider all reported and diagnosed psychiatric disabilities in accordance with Clemons. 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 Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claim for service connection for an acquired psychiatric disability to include PTSD. The Veteran claims that he has an acquired psychiatric disorder to include PTSD as a result of an in-service incident where he was sexually assaulted by an officer in March 1975 while stationed at Fort Knox, Kentucky. While the Veteran has been diagnosed with PTSD, military sexual trauma and major depressive disorder, he has not been provided with a VA examination relating to his claim. In that regard, the Board acknowledges that the Veteran's service treatment records and personnel records do not reflect any specific notations regarding the alleged military sexual trauma incident or any psychiatric treatment. However, the Board notes that cases involving allegations of a personal assault, fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran complains. See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999). As noted under Paragraph 5.14(d), Part III, of VA's Adjudication Procedure Manual, M21-1, personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking. Id. Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault. See YR v. West, 11 Vet. App. 393, 399 (1998). The Manual also notes that since personal assault, to include sexual assault, can be an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, making it difficult to obtain direct evidence, and requiring that the alternative evidence be sought. Id. Under § 3.304(f)(3), 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. 38 C.F.R. § 3.304(f)(3) (2012). Given that there is a diagnosis of a psychiatric disorder, including PTSD and a suggestion of stressors to include personal assault, this claim must be remanded so that a comprehensive VA examination addressing etiology can be afforded. See McLendon, supra. "VA will not deny a PTSD 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." 38 C.F.R. § 3.304(f)(5) (2012). In this regard, the Board notes that the November 2009 VCAA notice provided to the Veteran did not advise him of such. Therefore, a remand is also necessary so that the Veteran may be so advised. Additionally, in a June 2012 Informal Hearing Presentation, the Veteran's representative noted that the Veteran has been receiving benefits from the Social Security Administration (SSA) based on his PTSD disability. There is no indication in the claims file that the records in the possession of the SSA have been requested or obtained. Where there is actual notice to VA that the Veteran is in receipt of benefits from the SSA, VA has the duty to acquire a copy of the decision granting SSA disability benefits and the supporting medical documentation relied upon where the identified records have a reasonable possibility of assisting in substantiation of the Veteran's claim. Golz v. Shinseki, 590 F.3d 1317, 1321-22 (Fed. Cir. 2010). The Board finds that the statements in the June 2012 Informal Hearing Presentation indicate that certain SSA records are outstanding. As such, a remand is required to afford the RO/AMC the opportunity to seek these records. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VCAA notice "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." See 38 C.F.R. § 3.304(f)(5) (2012). 2. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Request all available records concerning the Veteran from SSA. All records obtained or any response received must be associated with the claims file. If these records are unavailable, a negative response must be received from SSA and this must be noted and explained in the claims file. 4. After all of the above development has been completed, schedule the Veteran for a VA examination to determine the likelihood that the Veteran's claimed military sexual trauma actually occurred, and if so, whether he has PTSD or depression that is the result of that stressor. The complete claims folder should be provided to the examiner, and the examiner should be asked to specifically state that the complete folder has been reviewed, to include service treatment and personnel records. The examiner should be asked to provide a specific opinion as to: (a) Whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that the claimed military sexual assault occurred; and (b) If so, whether it is at least as likely as not that the Veteran has a current acquired psychiatric disorder that is related to the incident; otherwise had its onset in service; or is etiologically related to service. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. 5. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. The appellant 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. 2012). _________________________________________________ DAVID L. WIGHT 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).